East African Court of Justice Arusha, 19th March 2018: The First Instance Division heard a matter (Application) filed by Hon Fred Mukasa Mbidde (the Applicant), who is a Member of the East African Legislative Assembly (EALA). He is seeking leave of the Court to allow him join as an intervener in the case challenging the legality of the election of the Speaker of EALA which was filed by the Attorney General of the Republic of Burundi versus the Secretary General of the East African Community (EAC).
On 6th March 2018, Hon Mbidde withdrew his 1st Application seeking leave of the Court to join the same matter as an a amicus curiae (friend of the Court), he however changed and wanted to join as an intervener rather than amicus curiae and court ordered him to amend his application properly since he showed interest to change his position in the case.
During the hearing today, Mr Donald Deya, Counsel representing Hon Mbidde submitted to Court that, the Applicant has filed the matter on his own behalf and on behalf of other EALA Members interested in the case. Deya added that because him and other Members of EALA were present on the day of the election, therefore they have knowledge, evidence, information and insights about the election process which he wants to bring to the attention of the Court which will assist the court arrive to the best decision.
Mr Deya further said that, if the order sought by the Republic of Burundi in this case, will affect him and other Members of the Assembly and the substantive Speaker, which will deprive the work of EALA which had spent six months without operating. Hence he said that it would be a risk if he is not involved in the matter.
Deya, also submitted that, he represents the Assembly as a corporate body, whose interests as the votes are more weighing in the case and he asked Court to allow the Applicant join the case as an intervener.
The Attorney General of Burundi (1st Respondent) represented by the Mr Kayobera Nestol, opposed the Application by Hon Mbidde, and alleged that there was no quorum, as required under Rule 12 (1) of the Rules of the Assembly. He added that only two out of nine Members from the Republic of Burundi were present when the Assembly convened on 7th March to grant leave to Mbidde to join the case as an intervener. Rule 12 (1) provides that, “the quorum of the house 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”
His argument on the quorum was later challenged by the Counsel for the Applicant and the Court, because he did not show evidence indicating where the alleged two members of EALA were present and those alleged seven who were absent while granting Mbidde leave to join the case as an intervener.
Counsel Kayobera also argued that the leave granted by the Assembly to the Applicant was not proper as provided under Rule 36(2) (e) of the Rules of the Court, which provides that “a statement of the intervener’s or a amicus curiae’ interest in the result of the case”. He said that Mbidde’s application only states grounds of Application but does not provide the statement of interest in the result of the case. Kayobera further submitted that the Applicant’s interest is that if the orders sought in the case granted, he will be prevented from representing the East Africans as well as participating in the activities of the Assembly which is not sufficient in the view of the 1st Respondent (Burundi). He also opposed the other Applicant’s interest to come and assist the Court in interpreting the Rules of Procedure of the Assembly on the quorum. Kayobera said that, the Court had qualifications and competencies in interpreting of any Rules of the any Organ of the Community without help of anyone including EALA Rules of procedure.
He finally asked Court to disallow the Application and hear the main Reference expeditiously in the interest of Justice.
The Secretary General of EAC (2nd Respondent) on his part represented by Mr Agaba Stephen, Principal Legal Officer, submitted that the application by Hon Mbidde was filed properly before the court in accordance with Article 40 of the Treaty, on intervention of any party in the case and Rule 36 (2) (e) of the Rules of the Court. He again argued that if this Application is allowed, the 2nd Respondent will not suffer any prejudice and has no reason to oppose it. Agaba therefore urged Court to allow the Application as prayed by Hon Mbidde.
The Court will deliver its ruling on notice.
The Republic of Burundi in the main case (Reference) is challenging the election of the Speaker of EALA, arguing that, the Assembly did not follow Rule 12 of the Rules of Procedure of the Assembly, which requires the quorum of one third (1/3) of the elected Members from each Partner State, yet Burundi and the United Republic of Tanzania did not participate in the elections. Burundi is therefore asking court to declare that the election violated rule 12 (1) of EALA Rules of Procedure and order for re-election of the Speaker in accordance with the Rules of procedure.
The matter was brought before Honorable Judges Lady Justice Monica Mugenyi (Principal Judge), Justice Isaac Lenaola (Deputy Principal Judge), and Justice Fakihi A .Jundu,
Notice for editors
Rt. Hon Martin Ngoga (current Speaker) from the Republic of Rwanda who was elected Speaker of EALA on 19th December 2017. Rt Hon Ngoga polled 33 votes in the second round of voting against Hon. Leontine Nzeyimana of Burundi who amassed 3 votes and Hon Adam Kimbisa of the United Republic of Tanzania did not receive any vote. Rt. Hon. Ngoga replaced Hon. Daniel Kidega from the Republic of Uganda whose term expired. According to the Treaty, the position of the Speaker of EALA is rotational.
Rule 21 (1) of EACJ Rules provides that “subject to sub-rule 4 of this rule, all application to the First Instance Division shall be by motion, which shall state grounds of the application”
Article 40 of the Treaty provides that “A Partner State, the Secretary General or a resident of a Partner State who is not a party to a ca se before the Court may, with leave of the Court, intervene in that ca se, but the submissions of the intervening party shall be limited to evidence supporting or opposing the arguments of a party to the case.
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.
Arusha is the temporary seat of the Court until the Summit determines its permanent seat. The Court’s sub-registries are located in the respective National Courts in the Partner States.
For more information please contact:
Yufnalis Okubo, Registrar, East African Court of Justice. Tel: 255-27-2162149
East African Court of Justice