East African Court of Justice Arusha, 3 November 2015: The First Instance Division yesterday heard a matter against the Secretary General of the East African Community for the alleged failure to take action in implementation of the Council’s directive to the two Partner States the United Republic of Tanzania and the Republic of Rwanda to resolve the issue of the Rwandan citizens who were expelled from Tanzania in Kagera region in 2013.
The Applicant (East African Law Society (EALS)) represented by their Lawyer Prof. Fredrick Sempebwa submitted that the Secretary General’s failure to comply with the Council’s decision was a breach of the Treaty for the Establishment of the East African Community. He further added that since the directive of the Council, the Secretary General has done nothing to implement the decision which is a fundamental issue of the Treaty particularly Article 71 which provides the functions of the Secretariat.
Prof. Sempebwa again contended that the citizens who were expelled from Tanzania are citizens of a Member State of the East African Community and therefore infringes the Treaty because they are entitled to the right of residence and the right of establishment and other rights within the Treaty and the Common Market Protocol of the Community. He again said that it was the duty of the Secretary General to carryout investigations and find out the truth of breach of the Treaty. He also sought remedies if the Court rules in favor of the Applicant.
Dr. Anthony Kafumbe Counsel to the Community representing the Respondent submitted that, the matter is time barred because it occurred in August 2013, up to the time the case was filed to Court on 8th September 2015 which is beyond two months time limit to file the case and it should have been filed within the provisions of Article 30 (2) of the Treaty. He further stated that if the Secretary General had failed to take action as alleged still the matter could have been filed to court within the time limit.
He also urged that the decision being contested about is a decision directed to the Partner States that is the United Republic of Tanzania and the Republic of Rwanda but not directed to the Secretary General. He again added that Article 16 of the Treaty Partner States have an obligation to implement directives of the Council, that so it does not require the Secretary General once the directive is issued.
Dr. Kafumbe said that however the Secretary General has convened meetings in September 2013 and January 2015 for the two Partner States but he is not updated on the progress between the two Partner States. He also emphasized that the matter is still before the Council of Ministers expecting to be deliberated on in the upcoming Council meeting. He therefore said that the Secretary General as a correspondence has played his role as he was supposed to do and he is not the right party to be brought to Court yet there is provision of Article 16 which gives mandate to the Partner States to implement the directives of the Council.
The matters came before a bench of the Judges of the First Instance Division composed of Honourable Lady Justice Monica Mugenyi (Principal Judge), Justice Isaac Lenaola (Deputy Principal Judge), Justice Dr. Faustin Ntezilyayo, Justice Fakihi A . Jundu and Justice Audace Ngiye in open Court.
The Court will deliver its judgment on notice.
Notes for editors
Council’s directive states; reiterated its previous decision directing the United Republic of Tanzania and the Republic of Rwanda to urgently meet to resolve the issues regarding the Republic of Rwanda’s concern on the Kagera Region expulsion of Rwandans by 30th January 2014. EAC/CM28/Decision 05.
Article 16 of the Treaty provides on Effects of Regulations, Directives, Decisions and
Recommendations of the Council and states that; Subject to the provisions of this Treaty, the regulations, directives and decisions of the Council taken or given in pursuance of the provisions of this
Treaty shall be binding on the Partner States, on all organs and institutions of the Community other than the Summit, the Court and the Assembly within their jurisdictions, and on those to whom they may under this Treaty be addressed.
Article 29 provides on Reference by the Secretary General
1. Where the Secretary General considers that a Partner State has failed to
Fulfill an obligation under this Treaty or has infringed a provision of this Treaty, the Secretary General shall submit his or her findings to the Partner State concerned for that Partner State to submit its observations on the findings.
Article 30 (2) provides that; The proceedings provided for in this Ar t icle sha ll be inst ituted within two months of the enactment, publication, directive, decision or action complained of, or in the absence thereof, of the day in which it came to the knowledge of the complainant, as the case may be;
About the EACJ
The East African Court of Justice (EACJ or ‘the Court’), is one of the organs of the East African Community established under Article 9 of the Treaty for the Establishment of the East African Community. Established in November 2001, the Court’s major responsibility is to ensure the adherence to law in the interpretation and application of and compliance with the EAC Treaty.
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