East African Court of Justice Arusha, 7 November 2015: The First Instance Division overruled the objections of the Secretary General blocking Hon. Zziwa from giving evidence in Court without seeking leave of the Assembly. This is her case versus the Secretary General alleging that the process of her removal from the Office of EALA Speaker was illegal and an infringement of Articles 53 and 56 of the Treaty for the Establishment of the East African Community. The Court went further and re-scheduled the matter for hearing on 18th and 19th November 2015.
In its ruling the Court said that, it found that it has not been satisfactory established before the Court that the evidence the Applicant intends to adduce before the Court does not fall in the ambit (realm) of Section 20 of the EALA Powers and Privileges Act 2003. That it would be premature at this stage to fore stole her (Applicant) evidence on the pretext (alleged reason) that it does not comply with the provision of the said Section and again the Court held that it would also be premature to adjudge the Applicant’s evidence and prevent her from testifying in her matter.
The Court reiterated its earlier position that the Act is a valid Community Law and must be complied with by all the witnesses that seek to adduce evidence in Court, however that the only exception in this regard for present purposes would be the Clerk to the Assembly who was summoned as a witness in this matter pursuant to the Court order that must be obeyed.
Further that it is none negotiable tenet (principle) of the Rule of Law that all Court’s orders must be respected and obeyed. In that result the Court was satisfied that the documentations produced by the Clerk to the Assembly is properly on record pursuant to Court order and the Clerk is under legal obligation to appear as a witness in this matter pursuant to the said order without need for special leave of the Assembly. The Court also added that in any event should he in his own volition/ option deem it necessary to seek leave of the Assembly, the onus/ duty will be upon him having been duly served with the witness summons to secure the said leave.
This matter previously was scheduled for hearing of oral evidence on 8th and 9th September 2015, however the Respondent (Secretary General) represented by Mr. Agaba Stephen raised the preliminary objection on a preliminary point of law premised on Sec 20 of the EALA Powers and Privileges Act 2003. The main issue was that the witnesses were all Members and Officers of EALA but had not secured the leave from the Assembly to adduce evidence in the Court.
The subject of the main Case is that the Applicant (Zziwa) alleges that in contravention of Articles 53 and 56 of the Treaty, Rule 9 and Annex 3 of the Rules of Procedure of EALA and Rule of law, on 26th November, 2014 some members of EALA convened in the Assembly chambers, summoned the Clerk of the Assembly to “preside over the Assembly”, re-instated a motion/process of removal of the Speaker, referred the motion to the Committee on Legal, Rules and Privileges for investigations, “ suspended” the Speaker/Applicant from exercising the functions of the office of Speaker and appointed one of them to preside over the proceedings. That the Committee’s action of conducting investigations on a non-existing motion was an illegality. That the Committee as constituted for the purposes of investigations was improper and breached the rules of natural justice, specifically the rule against bias.
The Court had directed the Clerk of the East African Legislative Assembly to appear in Court as one of the witnesses who was required to give evidence but he did not appear in Court.
In February 2015 the Court allowed Hon. Margareth Nantongo Zziwa to withdraw her Application seeking to stop her impeachment from the Office of the Speaker because the prayers sought had been over taken by events and the Assembly had elected a new Speaker.
The ruling of the Court was delivered by a bench of three Hon. Judges of the First Instance Division composed of Honourable Lady Justice Monica Mugenyi (Principal Judge), Justice Fakihi A . Jundu and Justice Audace Ngiye in open Court.
Notes for editors
Sec 20 of the East African Legislative Assembly Powers and Privileges Act, 2003 provides that;
(1) Notwithstanding the provisions of any other law, no member or officer of the Assembly and no person employed to take minutes or record evidence before the Assembly or any Committee shall, except as provided in this Act, give evidence else-where in respect of the contents of such minutes or evidence or of the contents of any documents laid before the Assembly or such Committee, as the case may be, or in respect of any proceedings or examination held before the Assembly or such Committee, as the case may be, without the special leave of the Assembly first had and obtained in writing.
(2) The special leave referred to in subsection (1) may be given during recess or adjournment by the Speaker or in his absence or incapacity or during any dissolution of the Assembly by the Clerk.
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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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