East African Court of Justice Arusha 3rd July, 2019: The First Instance Division dismissed a case filed by the government of Burundi challenging the process of electing the Speaker of the 4th East African Legislative Assembly (EALA), which was carried out on 19th December. 2017 without the participation of Members of Parliament from the Republic of Burundi and the United Republic of Tanzania.
According to the Court, the case at hand gravitated around EALA’s compliance with the legal regime applicable to the election of Speaker thereof. The Court stated that the bone of contention between the parties was what (if any) was the quorum of the House for purposes of the election of a Speaker. It opined that such matter depicted a question of fact that must be established by cogent evidence.
The Court having scrutinized evidence adduced by parties in support of their respective cases, found that the fact for the Applicant’s advocate to produce evidence deposed by himself offended the rule of evidence and therefore, the advocate’s affidavits were expunged from the record. Moreover, the Applicant’s counsel had purported to cite Members of the House from the Republic of Burundi as his source of information on the events that transpired in the impugned election. The court stated that those Members were more competent witnesses to attest to the circumstances in which that election was conducted than the learned Counsel who was not present in the House at the time. In the premise therefore, the Court found that such kind of evidence amounted to hearsay evidence which could not be relied upon in the determination of the matter before it.
Given the foregoing, the Court found that the Reference was not supported by any evidence. In the result, the Court was not satisfied that the election of the Speaker contravened Articles 53(1) or 57 (1) of the Treaty, or Rule 12 (1) of the Assembly’s Rules of Procedure and therefore, the Reference was dismissed and each party was ordered to bear its own costs.
During the hearing session in March 2019, Mr. Nestor Kayobera representing Burundi (the Applicant) argued that elections that were held in the absence of EALA MPs from Burundi and Tanzania in violation of the fundamental Principles of the Community under Articles 6 (d), 7 and 57 (1) and Rule 12 (1) of EALA Rules of Procedure. Mr. Kayobera further told the Court that the election of the Speaker of EALA is governed by the EAC Treaty and the Assembly’s Rules of procedure and that Article 9 (4) of the Treaty obligates Organs and Institutions of the Community to perform the functions and act within the limits of the powers conferred upon them by the Treaty.
Mr. Kayobera also contended that the issue of quorum is a Treaty obligation under Article 57 and rule 12 (1) of EALA Rules of Procedure which provides that: The quorum of the House or of the Committee of the Whole House shall be half of the elected Members and such quorum shall be composed of at least one third of the elected Members from each Partner State.” He further argued that violation of the rule on quorum entails violation of the Treaty. He contended that the Speaker of EALA was not elected in accordance with the Treaty and the Rules of the Assembly and therefore asked the Court to order a new election in accordance with the Treaty and rules of the Assembly.
Dr Anthony Kafumbe, who is the Counsel to the Community, representing the Secretary General (Respondent), on his part, submitted that the election of the Speaker was done under Part III of the Rules of Procedure of the Assembly. He further told the court that under Part III of the EALA Rules of Procedure, Rule 6 (9) (c) on the election of the Speaker, it is not mandatory for every member to vote, hence the Members of Burundi and Tanzania had liberty not to vote. Rule 6 (9) (c) states that; “After all Members who wish to vote have voted, the Clerk shall in full view of the Members present, empty the ballot box and immediately count the ballot paper contained in it.” He also argued that the issue of quorum does not apply, that it only applies when the house is duly constituted.
He therefore submitted that there was no illegal election process, that the Speaker was elected under the relevant provisions of the Rules of Procedure of the Assembly and that the election process did not violate the Treaty. Dr. Kafumbe further submitted that as Article 9 of the Treaty obligates the Organs and Institutions of the Community, the Assembly acted within its mandate and in accordance with its rules of procedure. Dr. Kafumbe also contended that Members of the Assembly have accepted the Speaker and a lot of business is going on and therefore, it would not be helpful to nullify the election and order a fresh election.
Dr. Kafumbe also took issue with the Affidavits sworn by the Applicant’s Counsel on the basis of information relayed to him by EALA’s MPs from the Burundi and submitted that the Court should reject the said affidavits as evidence since Counsel was not a witness and could not even have been a witness and a Counsel at the same time; the impugned affidavits ought to have been sworn by Burundian Members of EALA. Dr. Kafumbe prayed that the Reference be dismissed with costs to the Respondent.
The Intervener, Hon. Fred Mukasa Mbidde, represented by Mr Donald Deya, Mr. Justin Semuyaba and Mr Nelson Ndeki during the hearing in court, associated their submissions with the Respondent and asked the Court not to grant the orders sought by the Applicants.
The Judgment was delivered by the Honourable Judges: Lady Justice Monica Mugenyi (Principle Judge), Justice Dr Faustin Ntezilyayao (Deputy Principal Judge), Justice Fakihi A. Jundu, Justice Dr Charles Nyawello and Justice Charles Nyachae.
Notes for Editors:
The current Speaker of the East African Legislative Assembly is Rt Hon Martin Ngoga from the Republic of Rwanda. Hon. Ngoga was elected on 19th December, 2017. The position of the Speaker is rotational among the EAC Partner States with the holder serving a period of five years.
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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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