East African Court of Justice Arusha, 15 February 2018: The Appellate Division on 13th February, heard an Appeal by Hon. Margaret Nantongo Zziwa Vs the Secretary General over the decision of the First Instance Division (Lower Court), which declined to grant the orders to reinstate her as the Speaker of East African Legislative Assembly (EALA). On 3rd February 2017, the First Instance Division declared that the sitting of the Assembly on 26th November 2014 presided over by a temporary Speaker, an entity and office unknown to the Treaty and the Rules of Procedure of the Assembly was unlawful and violated Article 56 of the Treaty. Article 56 states that; “Presiding in the Assembly; a) the Speaker of the Assembly; or b) in the absence of the Speaker of the Assembly, such elected member of the Assembly as the elected members may elect for the sitting”
The Lower Court also found that the Committee on Legal Rules and Privileges, in allowing Members of the Assembly who initiated the motion for removal of the Applicant to sit and determine whether she should in fact be removed, violated the basic rules of natural Justice that an accuser cannot also be the judge in proceedings against the accused. Further that any real or perceived bias on the part of the Committee invalidated its proceedings. The Court added that having made the findings regarding the composition of the Committee and its proceedings, it follows that its report, whatever the merit thereof, was rendered invalid.
However, on the other hand the Lower Court said that, its mandate is to interpret and apply the Treaty as it is stated under Article 23 and 27 of the Treaty for the establishment of the EAC within the Principles set out in Articles 6, 7 and 8 of the Treaty. Further that one of the principles in Article 6 (d) which is that of democracy and rule of law, which necessarily include the principle of separation of powers and therefore it cannot be seen directing EALA on how it should conduct its business hence it was unable to grant the order. Also the First Instance Division declined to grant orders on special and general damages to the Applicant, it found out that the Applicant have contravened Rule 9(6) of the Assembly’s Rules of Procedure, which action might have triggered other actions, some patently unlawful. Still that she (Hon. Zziwa) cannot then be seen to benefit from her role in the procedural impasse that dogged the Assembly. Rule 9(6) states that; “The Speaker in respect of whom proceedings for removal have commenced shall not preside over the proceeding”
In her Appeal Hon. Zziwa represented by Counsels Jet Tumwebaze challenging the decision of the First Instance Division, submitted that the Court having found that there was breach of the Treaty, it could not have held its hands and claim that role was only to interpret the Treaty and had no mandate to make any orders as to remedy that breach.
Mr. Tumwebaze further argued that Article 23 of the Treaty on the role of the Court does not stop on interpretation of the Treaty but also talks of application and compliance of the Treaty. He added that the Lower Court should have gone ahead to remedy the violation they had found.
Counsel Tumwebaze also submitted that principle of democracy and rule of law which includes separation of powers held by the Court, he stated that the Lower Court was running away from its mandate. That the separation of powers cannot strike out the principle of checks and balances. Tumwebaze went ahead and said that, “You cannot allow EALA which has violated the Treaty and say let them handle their own motion to go and ensure compliance” Tumwebaze said.
He also argued that Article 27 of the Treaty has the same reading, that the Court on the jurisdiction of the Court over the interpretation and application of the Treaty. It is the Appellant’s contention that those two Articles 23 and 27 of the Treaty should have enlarged the mandate of the Court to grant the orders after finding the violations. He therefore asked the Appellate Court to overturn the decision of the First Instance Division.
On the decision where the Court held that the Hon.Zziwa (Appellant) had breached Rule 9(6) of the Assembly’s Rules of procedure. Counsel Tumwebaze contended that, this was not an issue in the Applicant’s petition for determination, and was not even born out pleadings and that no evidence laid by the parties. He therefore said that, the Court could not have determined the same issue. Counsel, further submitted that the same issue on breach of Rule 9(6) by the Appellant was used by the Lower Court to deny the Applicant costs, being his argument that the Court’s findings were wrong. The First Instance in its decision said that that her conduct is the reason why the Court denied awarding her damages and costs. Mr. Tumwebaze therefore urged the Appellate Court to use its discretion and award the Appellant costs in both Courts. He emphasized that Article 23, 27 and 6(d) empowers the Court to give remedies that are prayed for.
The Respondent’s submission represented by Mr. Agaba Stephen, on his part submitted that, this matter is already moot on two reasons; one, that reinstatement of the Appellant as the EALA Speaker, it was his contention that the remedy is no longer available. Two, that the case is about money, he also stated that the Appellant does not deserve any compensation in form money.
Mr. Agaba further said that Article 56 provides on the presiding in the Assembly, which First Instance Division found that under Article 56 of the Treaty, the Assembly did errors in attempting electing the temporary Speaker. He however argued that the Lower Court was right not to reinstate the Appellant because her removal corresponds with the Treaty Provisions under Article 53 which provides on the elections of the Speaker and remove from the office of the Speaker. He also added that the lower Court held that it was satisfied on several grounds which correspond to the grounds of misconduct envisaged under Article 53 of the Treaty.
Counsel also submitted on the principle of checks and balance, arguing that the First Instance Division to have found that the Assembly had breached Article 56 of the Treaty in regard to presiding the Assembly was enough checks and balances but not that the Court was powerless as argued by the Appellant. He stated that the Court did its functions to check the functions of the Assembly as they read the Treaty.
On the issue of not awarding damages and costs to the Appellant, Agaba contended that, Hon. Zziwa from the time she was removed from the office of the Speaker, that she continued to draw the salary from the Assembly. That she also continued to get allowances entitled to all Members of the Assembly including travel, daily substance and sitting allowances. Mr. Agaba submitted that, the Justices of the First Instance Division did not abuse their discretion not to award the Appellant costs of the Reference because they had established that grounds used by the Assembly to remove her were in line with the Treaty
Agaba also contended that, the Lower Court did not error in holding that the Appellant breached Rule 9(6) because evidence was laid in his submissions and also in her utterance confirming that the Speaker in respect of whom the proceedings on removal have commenced shall not preside over the proceedings. He also emphasized that the issue was also pleaded hence opposed the argument of the Appellant that the issue was not in their petition for determination by the Court.
In conclusion, Counsel for the Respondent he requested the Appellate Court to dismiss the Appeal and make other orders as the Court may deem fit.
The matter came before Honourable Justices, Dr. Emmanuel Ugirashebuja (President), Liboire Nkurunziza (Vice President), Edward M. Rutakangwa, Aaron Ringera, and Geoffrey Kiryabwire all of the Appellate Division. The Court will deliver its judgement on notice.
Notes for editors:
The Applicant had asked Court an award of special damages in form of loss of earnings of a salary of USD 6,700 per month and housing allowance of USD 3,000 per month, plus other allowances and financial benefits. Hon. Zziwa was the elected Speaker of the EALA in 2014 but after her impeachment on 19th December 2014, the then Assembly elected Hon. Daniel Kidega former Speaker of EALA then who retired. The Current EALA Speaker is Rt. Hon Martin Ngoga.
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