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East African Law Society and Others v Attorney General of the Republic of Kenya and Others (Ref. No. 3 of 2007) [2008] EACJ 1 (1 September 2008)

MMB Advocates > Uncategorized  > East African Law Society and Others v Attorney General of the Republic of Kenya and Others (Ref. No. 3 of 2007) [2008] EACJ 1 (1 September 2008)

East African Law Society and Others v Attorney General of the Republic of Kenya and Others (Ref. No. 3 of 2007) [2008] EACJ 1 (1 September 2008)




IN THE EAST AFRICAN COURT OF
JUSTICE

AT ARUSHA

CORAM: MULENGA V.P., KASANGA MULWA and ARACH AMOKO
JJ.

REFERENCE NO. 3 OF 2007

BETWEEN

THE EAST AFRICAN LAW SOCIETY……………….1ST
APPLICANT

THE TANGANYIKA LAW SOCIETY……………….2ND
APPLICANT

THE UGANDA LAW SOCIETY………………………3RD
APPLICANT

THE ZANZIBAR LAW SOCIETY…………………….4TH
APPLICANT

AND

THE
ATTORNEY GENERAL OF

THE REPUBLIC OF KENYA………………………..1ST
RESPONDENT

THE
ATTORNEY GENERAL OF

THE UNITED REPUBLIC OF TANZANIA……….2ND
RESPONDENT

THE
ATTORNEY GENERAL OF

THE REPUBLIC OF UGANDA……………………..3RD
RESPONDENT

THE
SECRETARY GENERAL OF

THE
EAST AFRICAN COMMUNITY……………..4TH
RESPONDENT

JUDGMENT
OF THE COURT.

On 14th December 2006, the Summit of the
Heads of State of the then three Partner States in the East African
Community (“the Summit”)
considered and adopted
amendments to several Articles of the Treaty for the Establishment of
the East African Community (“the
Treaty”). On subsequent
diverse dates, the three Partner States severally ratified the said
amendments to the Treaty and
deposited their respective instruments
of ratification with the Secretary General of the East African
Community. The last of the
instruments of ratification was so
deposited on 19th March 2007. Meanwhile, on 16th
March 2007, the said amendments were published in the East African
Community Gazette.

In this reference, the four applicants jointly challenge
the legality of the said amendments to the Treaty and seek
declarations
that the amendment process infringed provisions of the
Treaty and norms of international law and was of no legal effect.
They also
seek diverse consequential orders.

Background

The facts leading to the reference are generally not in
dispute. On 27th November 2006, this Court delivered a
ruling granting an interim order in the case of Prof. Peter
Anyang’ Nyong’o & 10 others vs. The Attorney General
of Kenya & 5 others
Reference No. 1 of 2006,
restraining the Clerk to the East African Legislative Assembly and
the Secretary General of the East African
Community from recognizing
9 persons named in the order as duly elected by the National Assembly
of Kenya to the East African Legislative
Assembly (EALA) or
permitting them to participate in any function of the EALA until the
final determination of the reference. In
that reference, the
applicants challenged the legality of nomination of the 9 persons to
the EALA on the ground that the National
Assembly of the Republic of
Kenya did not elect them in accordance with Article 50 of the Treaty.
In apparent reaction to the Court’s
ruling, the Council of
Ministers of the East African Community (“the Council”),
at its meeting on 28th November 2006, considered the
implications of the interim order and decided to recommend to the
Summit that the matter be referred
to the Sectoral Council on Legal
and Judicial Affairs to study the jurisdiction of this Court and
other related matters and advise
on the way forward.

In a communiqué issued at the conclusion of its
meeting at Arusha, on 30th November 2006, the Summit –

Endorsed the recommendation of the Council
of Ministers to reconstitute the East African Court of Justice by
establishing two divisions,
a court of First Instance with
jurisdiction as per present Article 23 of the Treaty and an Appellate
Division with appellate powers
over the Court of First Instance.

Directed that the procedure for the removal of
Judges from office provided in the Treaty be reviewed with a view to
including all
possible reasons for removal other than those provided
in the Treaty.

Directed that a special Summit be convened very
soon to consider and to pronounce itself on the proposed amendments
of the Treaty
in this regard.”

This sparked off a flurry of activity, the highlights of
which are –

  • An extraordinary meeting of the three Attorneys General
    of Kenya, Tanzania and Uganda held on 7th December 2006,
    which considered draft amendments to the Treaty in line with the
    said communiqué and recommended to the
    Council that the same
    be approved and submitted to the Summit pursuant to Article 150 for
    consideration and adoption;

  • A meeting of the Council held Arusha on 8th
    December 2006, during which the draft amendments to the Treaty
    approved by the meeting of the Attorneys General of the Partner

    States was considered and approved;

  • Submission of the proposed amendments to the Partner
    States by the Secretary General of the East African Community (“the
    Secretary General”) on 9th December 2006 and the
    respective replies dated 11th, 12th and 13th
    December 2006;

  • The adoption of the amendments and signing of the
    Instrument of Adoption by the Summit on 14th December
    2006;

  • The deposit with the Secretary General of the
    instruments of ratification of the amendments by the Governments of
    Kenya on 8th January 2007, of Uganda on 26th
    February 2007 and of Tanzania on 19th March 2007.

The Amendments

Although this reference does not relate to the substance
of the amendments, it is useful to note at least their import, which
is

  • To restructure the Court into two divisions, i.e. a
    First Instance Division and an Appellate Division; (Article 24);

  • To include, among the grounds for removing a judge of
    the Court from office, the following –

if the judge is adjudged bankrupt or convicted of
an offence involving dishonesty or fraud or moral turpitude under any
law in force
in a Partner State.”

and to provide for suspension of a judge who is under
investigation

for removal or is charged with such offence; (Article
26);

  • To limit the Court’s jurisdiction so as not to
    apply to “jurisdiction conferred by the Treaty on organs
    of Partner States”;
    (Art. 27 & 30)

  • To provide time limit within which a reference by legal
    and natural persons may be instituted, (Article 30);

  • To provide grounds on which appeal may be made (Article
    35A); and

  • To deem past decisions of the Court and existing judges
    to be decisions and judges of the First Instance Division
    respectively.
    (Article 140 A).

Subject matter of the Reference

The substance of the reference as pleaded by the
applicants in paragraph 17 of the reference reads –

17. In the premises, the subject matter of
this reference is that –

  1. The purported declaration of the Summit,
    contained in the

Communiqué of 30th
November 2006, was not encapsulated in an East African Gazette
Notice, as expressly stipulated by Article 11 of the Treaty, and

therefore the decision has no legal effect.

b) The explicit time-lines, as well as the
elaborate procedures, for treaty amendment, expressly stipulated in
Article 150 of the
Treaty, were and continue to be infringed, and the
said amendments therefore have no legal effect. In particular –

1) There was no written proposal from either
a Partner

State or the Council of Ministers as
provided in Article

150(2) and (3);

2) The Secretary General of the Community did
not

communicate the amendments in writing to
the Partner

States as provided in Article 150(3);

3) Further the 30-day notice period
prescribed in Article

150(3) was not observed;

4) The mandatory 90-day period for Partner
States’

comments prescribed under Article 150(4)
and (5) was

not observed;

5) There were no written comments from the
Partner

States as stipulated in Article 150(5);

c) The purported ratification of the amendments by
the Republic of Kenya, the Republic of Uganda and the United Republic
of Tanzania
by their respective Cabinets are an infringement of
Article 150(6); further they are unconstitutional, illegal and
therefore of
no legal effect;

d) In attempting or purporting to amend the Treaty
while the Court was still seized of Treaty
(sic)
Reference Application Number 1 of 2006, the Partner States and the
Secretariat of the Community infringed Articles 8(1)(c) and
38(2) of
the Treaty. As a consequence the entire purported process of treaty
amendment is vitiated and of no legal effect;

e) The Summit, Council of Ministers, Office of the
Secretary General and the 3 Partner States’ Attorneys General
excluded
all the other organs of the Community, the Partner States
governments and more importantly, the people and registered interest
groups of East Africa in the irregular and rushed Treaty amendment
process. This infringes both the Preamble and Articles 1, 5,
6, 7, 8,
9, 11, 38 and 150 of the Treaty.”

We should observe at the outset that although the
aforesaid pleading was not amended and none of the averments therein
was otherwise
withdrawn, learned counsel for the applicants addressed
the Court only on the averments in paragraphs 17 (b) 4) and 17(e) in
the
submissions under issue no.2, and on those in paragraph 17(d) in
the submissions under issue no.3. No evidence was adduced in support

of, and learned counsel did not canvass the averments in paragraph
17(a), 17(b) 1), 2), 3) and 5) and 17(c) obviously because they
were
inconsistent with the available evidence, and no counter evidence to
support them was adduced. We shall therefore regard those
particular
averments as abandoned.

Although the reference is stated to be made under twelve
articles of the Treaty, the only article under which any legal or
natural
person may bring such a reference is article 30 of the
Treaty. The five applicants are legal persons. The 1st
applicant is a Company limited by Guarantee, and registered in
Tanzania as such and in Kenya and Uganda as a Foreign Company. Its

membership consists of individual lawyers as well as five national
associations of lawyers of Kenya, Tanzania, Uganda, Rwanda and

Zanzibar. The 2nd, 3rd and 4th
applicants are corporate entities established by national statutes of
Kenya, Tanzania and Uganda respectively; and the 5th
applicant is a registered society under Zanzibar legislation.

The four respondents are cited in the reference in their
respective representative capacities, representing the Republic of
Kenya,
the United Republic of Tanzania, the Republic of Uganda and
the East African Community, respectively.

The reference was filed in the Court Registry on 18th
May 2007 and was followed by separate responses from all the
respondents. Upon conclusion of the pleadings and in pursuance of

rule 52 of the Rules of Procedure, the Court held a scheduling
conference on 2nd November 2007 during which the parties
inter alia framed the following issues for determination by
the Court, namely –

  1. Whether the reference is properly before the Court;

  2. Whether the process of amending the Treaty was proper
    and lawful;

  3. Whether the said amendments were carried out in good
    faith;

  4. Whether the amendments as carried out can be stopped;
    and

  5. Whether the amendments will strengthen the Community.

Hearing did not proceed promptly due several
adjournments initially with a view to settlement and subsequently
because of post-elections
problems in Kenya. Hearing finally
commenced on 7th May 2008 with oral submissions of
counsel, the evidence relied on by all the parties being by
affidavits filed along with the pleadings.

Prof. Fredrick Ssempebwa the learned lead counsel for
the applicants made submissions on all the framed issues. He was
assisted
by Mr. Alex Mgongolwa and Mr. Donald Deya who shared the
submissions in reply in reply to submissions for the respondents.
Learned
counsel for the respondents share the framed issues among
themselves. Mr. Wilbert Kaahwa, learned Counsel to the Community who
appeared for the 4th respondent argued issues no, 1 and
no. 5 on behalf of all the respondents. Mr. Anthony Ombwayo, learned
counsel for the 1st respondent, Mr. Henry Oluka, learned
counsel for the 3rd respondent, and Mr. Joseph Ndunguru
counsel for the 2nd respondent, did likewise respectively
on issues no. 2, no. 3, and no. 4.

Submissions on Issue No.1

The first framed issue, namely “Whether the
reference is properly before the Court”
could have been
taken as a preliminary objection, but the parties argued it along
with the rest of the issues. Primarily, it arose
from the responses
of the 1st and 3rd respondents. The former
pleaded that the subject matter of the reference, being the result of
a decision of one organ of the Community,
was not subject to review
by this Court under Article 30. The latter pleaded that the reference
was incompetent and misconceived
because there was no dispute amongst
the parties to the Treaty. Additionally, the 2nd and 4th
respondents pleaded that under international law, the applicants were
not competent to challenge the sovereign right of the Partner
States
to amend the Treaty to which they were parties.

Learned counsel for the respondents explained that the
contention that the reference was not properly before the Court was
not in
respect of the Court’s jurisdiction or competence to
determine the reference, but rather it was in respect of the
applicants’
lack of capacity to bring the reference to court.
On the one hand he submitted that it is a trite principle under
international
law, that the making of treaties, as well as the
amendment thereof, is a sovereign function and a preserve of states
as the contracting
parties. The individual subjects of the
contracting states have neither a role to play in the function nor a
right to challenge
the execution of the function by the contracting
states. In the instant case the right to amend the Treaty by
agreement of all
the Partner States was reiterated under Article 150.
He maintained that the applicants had no capacity to challenge the
Partner
States in the exercise of that right.

Secondly, learned counsel submitted that the reference
was not properly before this Court because it lacked one of the
essential
elements of a reference under Article 30 of the Treaty.
According to learned counsel, a reference is properly before this
Court
under that article only if –

  • the applicant is a resident of a Partner State;

  • the subject matter of the reference is “an
    Act, regulation, directive, decision or action
    of a
    Partner State or of an institution of the Community
    ;
    and

  • the ground of the reference is that the challenged
    subject matter is an infringement of a provision of the Treaty or
    otherwise
    unlawful.

He maintained that what is envisaged under the second
requirement is not something done or made by the Partner States
together as
contracting parties or by an organ of the Community.
According to learned counsel, what is envisaged is what is done or
made by
a single Partner State or an institution of the Community,
which is unlawful or an infringement of the Treaty. Learned counsel

submitted that in the instant case, the second requirement was not
satisfied, in as much as the subject matter of the reference
was not
an Act, regulation, directive, decision or action of a single Partner
State or of an institution of the Community.

Learned counsel urged us to interpret the provisions of
Article 30 of the Treaty strictly, and not to construe them as
impinging
on the sovereignty of the Partner States; emphasizing that
under that article, only an Act, regulation, directive, decision or
action of a single Partner State or an institution of the Community
may be challenged; but not that of an organ of the Community.
He
argued that to the extent that in this reference the applicants
challenge the legality of the decision of the Summit to amend
the
Treaty, the reference does not fall within the ambit of Article 30
and is therefore not properly before this Court. He submitted
that
the decision of this Court in Callist Mwatela
and others vs. Secretary General of the EAC,
Reference
No.1 of 2005, which the applicants rely on, is not a proper authority
because the pertinent question, whether a directive, decision or
action of an organ of the Community is justitiable under Article 30

was not raised and this Court did not pronounce itself on it.

While conceding that the making of a treaty, as well as
the amendment thereof, is a sovereign function of state, learned
counsel
for the applicants, submitted that each treaty must be
interpreted in the context of its objectives. He stressed that the
main
objective of the Treaty in the instant case is the phased
integration of the Partner States into a Customs Union, a Common
Market,
a Monetary Union and ultimately a Political Federation. He
invited the Court to take into consideration the historical context
of the Treaty when interpreting its provisions. In that regard he
recalled that the past failed East African Community was not people

centered and noted that, in contrast, the Treaty provides in Article
7(1) (a), that the operational principles for achieving its

objectives shall include “people centered and market
driven co-operation”
. Counsel submitted that in
furtherance of that principle, the Treaty confers rights on the
people of East Africa and permits them
to enforce those rights
through this Court. In so doing and in binding themselves under
Article 150 as to the procedure for amending
the Treaty, the Partner
States surrendered some degree of sovereignty.

With regard to the scope of Article 30, learned counsel
recalled the Court’s duty under Article 23, to ensure adherence
to
law in the interpretation and application of the Treaty, and the
empowerment of natural and legal persons in East Africa under Article

30, to challenge any illegality in the application of the Treaty by a
Partner State or institution of the Community, and submitted
that
Article 30 cannot be construed as excluding from such challenge,
illegality by an organ of the Community. He invited the Court
to
apply the purposeful approach in interpreting the article and to hold
that any Act, regulation, directive, decision or action
by an organ
of the Community is within the ambit of Article 30 and may be
challenged under it. Learned counsel cited as authority
for that
proposition, the decision of this Court in Callist Mwatela
and others vs. Secretary General of the EAC,
(supra),
where the decisions/directives of the Council of Ministers, an organ
of the Community, were successfully challenged under Article
30.

In reply to the submissions by the respondents’
counsel, learned counsel for the applicants further pointed out that
the two
main arguments in support of the respondents’
contention contradicted each other. Whereas on the one hand the
respondents
argued that the reference was incompetent for purporting
to challenge the sovereign function of the Partner States, on the
other
hand they argued that it was incompetent for purporting to
challenge the decision and action of an organ of the Community.
Learned
counsel maintained that the reference was brought in respect
of decisions and actions of the Partner States and were therefore
properly before the court as envisaged under Article 30.

Conclusion onIssue No.1

In this reference, the applicants do not challenge the
sovereign right of the Partner States to amend the Treaty. They only
contend
that under Article 150 of the Treaty the Partner States bound
themselves to follow a prescribed procedure in exercising that right

and that a deviation from that procedure constitutes an infringement
of the Treaty. They argue that in effecting the amendments
in issue
in the instant case, the prescribed procedure was not complied with,
and that consequently the amendments amounted to
an infringement of
the Treaty. We agree in as much as the Partner States bound
themselves to abide by a specified procedure in
the process of
amending the Treaty, they cannot amend the Treaty in any other way.
To that extent the Partner States agreed to
cede a degree of their
respective sovereignty. In our view, therefore, the question whether
the amendment process in issue in this
reference amounts to an
infringement of the Treaty is justitiable and cannot be barred on the
ground of sovereignty of the Partner
States.

Secondly, the applicants do not claim to have any
inherent right to make this reference questioning the manner in which
the Partner
States exercised their sovereign right to amend the
Treaty. They, as residents of the Partner States, rely on the right
the Treaty
vests in them under Article 30, which reads –

Reference by Legal and
Natural Persons

Subject to the provisions of Article 27 of this
Treaty,
any person who is resident in a Partner
State
may refer for determination by the Court, the
legality of any Act, regulation, directive, decision or action of a
Partner State
or an institution of the Community on the grounds that
such Act, regulation, directive, decision or action is unlawful or is
an
infringement of the provisions of the Treaty.”
(Emphasis
is added)

Ordinarily at international law, a treaty between or
among states, like any contract, protects interests of or creates
rights for
the parties thereto and imposes duties and obligations on
the parties to it. Neither another state that is not a party, nor a
legal
or natural person, may directly claim any interest or right
under it, notwithstanding that that other state nor person derives
benefit from implementation and operation of the treaty. However,
nothing prevents the state parties to a treaty to vest in any
person
or other state an enforceable right.

It is clear from the provision of Article 30 that the
residents of the Partner States are vested with the right to access
this Court
for the purpose of challenging any form of infringement of
provisions of the Treaty. Several provisions in the Treaty lend
weight
to the view that this was a deliberate provision to ensure
that East Africans for whose benefit the Community was established
participate
in protecting the integrity of the Treaty. The following
excerpts from the Treaty in particular, stand out to illustrate that
deliberate
intent. First, in the Preamble to the Treaty, the fourth
recital recalls and highlights that one of “the main
reasons that contributed to the collapse of the
(previous)
East African
Community” in 1977, was
“lack of strong participation of the private sector and
civil society in the co-operation activities”;
and the
eleventh recital records that the parties to the Treaty “are
resolved to create an enabling environment in all the Partner States
in order to attract investments and allow the private
sector and
civil society to play a leading role in the socio-economic
development activities”

Secondly, Article 7 provides –

1. The principles that shall govern the
practical achievement of the objectives of the Community shall
include:

  1. people-centered and market-driven co-operation;”

In our view, therefore, it would be a negation of that
deliberate intent to bar the reference on the ground that the
applicants
had no capacity to bring a reference challenging a
sovereign function of the Partner States.

Lastly, we are not persuaded by the respondents’
urging that we give to Article 30, a narrow interpretation that
excludes
from the application of the Article, infringement of the
Treaty by an organ of the Community. With due respect to learned
counsel,
it seems to us that such a restrictive interpretation is not
based on a sound ground. It is only based on the fact that no mention

of infringement of the Treaty by an organ of the Community is made in
Article 30. It is noteworthy that the Treaty provides for
two other
similar references to this Court. Article 28 authorises a Partner
State to make a similar reference in respect of a failure
to fulfill
an obligation under the Treaty or of an infringement of a provision
thereof on the part not only of another Partner
State or an
institution of the Community but also of an organ of the Community.
On the other hand, Article 29 empowers the Secretary
General, subject
to direction by the Council, to make a similar reference to the Court
in respect of such a failure or infringement
by a Partner State only.
We note the disparity in the three articles depending on who is
responsible for the alleged failure or
infringement, but having
regard to the purpose of the provisions, namely to ensure compliance
with provisions of the Treaty and
to provide for empowerment of inter
alia
any resident to seek judicial adjudication where there is
allegation of non-compliance, we are inclined to the view that a
restrictive
interpretation would defeat that purpose.

We agree that in Callist Mwatela and others vs.
Secretary General of the EAC,
(supra) the
subject matters of the reference were decisions and actions of
organs of the Community, but no one raised the point of their
justitiability.
In our view, however, that is not a substantial
point. Legally the organs are not corporate entities, but are
components of the
Community, which is the corporate body. Ordinarily,
an act of an organ in discharging its functions is an act of the
corporate
Community. However, in areas where a function of the
Partner States has not been ceded to the Community, an organ may
discharge
the function in the context of “the Partner States
acting together.”

In the instant reference, the alleged infringement is in
essence not the diverse individual decisions, directives or actions
of
the Summit or other organs of the Community set out in the
reference. The alleged infringement is the totality of the process of

the Treaty amendment, which amendment was, and can only be made by
the parties to the Treaty, namely the Partner States, acting
together
through the organs of the Community. It follows that if in the
amendment process the Treaty was infringed, it was infringed
by the
Partner States. The reference therefore cannot be barred on the
ground that its subject matter are decisions and actions
of organs of
the Community.

For the reasons we have set out, we find and hold that
the reference is properly before this Court. Accordingly we answer
issue
no.1 in the affirmative.

Submissions on Issue No.2

The second issue revolves around the construction of
Article 150 which reads –

Amendment of the Treaty

  1. The Treaty may be amended at any time by
    agreement of all the Partner States.

  2. Any Partner State or the Council may submit
    proposals for the amendment of this Treaty.

  3. Any proposals for the amendment of this Treaty
    shall be submitted to the Secretary General in writing who shall,
    within thirty
    days (30) of its receipt, communicate the proposed
    amendment to the Partner States.

  4. The Partner States which wish to comment on the
    proposals
    shall do so within ninety days (90)
    from the date of the dispatch of the proposal by the Secretary
    General.

  5. After the expiration of the period prescribed
    under paragraph 4
    of this Article, the Secretary
    General shall submit the proposals and any comments thereon received
    from the Partner States to
    the Summit through the Council.

  6. Any amendment to this Treaty shall be adopted by
    the Summit and shall enter into force when ratified by all the
    Partner States.”
    (Emphasis is added)

As noted earlier in this judgment, issue no.2 is:
“Whether the process of amending the Treaty was proper
and lawful”.
The thrust of the submissions by learned
counsel for the applicants on this issue is that the amendment
process was flawed in two
respects, namely failure to abide by the
mandatory time-frame prescribed under Article 150(4) and (5), and
absence of adequate
or any consultation of “the people”
on the proposals for amendment, as envisaged under the Treaty.

Learned counsel contended that whether the proposal is
by all the Partner States together or by any one of them or the
Council,
it must be processed through the stages set out in Article
150 under paragraphs (2) to (6) because they are all mandatory. He
stressed
in particular that the period of 90 days from the time the
Secretary General communicates the proposal to the Partner States
must
expire before the proposal with the comments from the Partner
States is submitted to the Summit through Council, even if the
Secretary
General receives the comments well before expiry of that
period, as happened in the instant case. According to counsel, the 90
days period must not be abridged because it was prescribed for the
purpose of allowing wide consultation on any proposed amendment,
in
order to maintain the whole Treaty as people-centered. In this
regard, he invited the Court to take judicial notice of the extensive

consultation that was carried out on the proposal to “Fast-track
Political Federation”, and the on-going wide consultation
on
extension of the Court’s jurisdiction.

On the basis of his analysis of Article 150, learned
counsel argued that although in the communication to the Partner
States and
in the submission to the Summit the Secretary General
purported to do so in accordance with Article 150(3) and (5)
respectively,
the submission of the proposed amendments to the Summit
before expiry of the prescribed 90 days was an infringement of
Article
150(5). He argued further that the undisputed fact that the
amendment process from initiation to conclusion took only a few days,

is sufficient proof that the consultations envisaged under the
Treaty, were not carried out, and the Treaty was thereby infringed.

Learned counsel for the respondents submitted that the
Treaty may be amended in one of two different ways. To put it in his
own
words, he said –

“It is trite law that a treaty can be
amended in two modes. The first mode of amending a treaty is by
agreement. This is an
agreement by the Partner States to amend the
provisions of the treaty. The second mode of amendment is as provided
for under Article
150(2) to (5) of the Treaty……………
that is a set out procedure for amendment of the Treaty where
there
is no agreement.

He submitted that the first mode was recognized at
international law and was embodied in Article 39 of the Vienna
Convention on
the Law of Treaties, (“the Vienna Convention”)
and was reiterated in Article 150(1) of the Treaty. Initially,
learned
counsel contended that in the instant case the Partner States
amended the Treaty by agreement, applying the first mode of
amendment,
when in the communiqué at the Summit meeting of
30th November 2006, the Heads of State endorsed the
recommendations of the Council and issued conclusive directives –

  • to reconstitute the East African Court of Justice into
    two divisions;

  • to review the procedure for removal of judges from
    office; and

  • to convene a special Summit to consider the amendments.

In the course of his submissions, however, without
conceding that the communiqué did not constitute an effective
amendment
of the Treaty, learned counsel accepted that in addition to
the agreement of the Partner States to amend the Treaty that is
evidenced
by the communiqué, there was compliance with the
procedure set out in paragraphs (2) to (5) of Article 150 and in
particular
stressed that paragraphs (4) and (5) were not infringed.

The substance of learned counsel’s argument in
regard to the timeframe set out in paragraphs (4) and (5) of Article
150 may
be paraphrased thus: Where one act is required to be done
within a set period and a second act is required to be done after
expiry
of the said set period, for purposes of doing the second act,
the set period is deemed to expire when the first act is done.
Learned
counsel maintained that in the instant case, when the Partner
States submitted their comments on the proposed amendments within
the
set period of 90 days, for purposes of the next step of submitting
the proposed amendments with the comments to the Summit,
the 90 days
period was deemed to lapse upon the Secretary General receiving the
last of the comments from the Partner States. Consequently,
according
to learned counsel, the submission of the proposed amendments with
the comments well before the actual expiry of 90 days
did not
constitute an infringement of Article 150(5) of the Treaty. In
support of his argument, learned counsel referred to the
cases of
Alida Singh vs. Vanel Singh (1956) RD-SC 83;
Jaramogi Oginga Odinga and others vs. Zacherus Chesoni
Application No.602 of 1992 (K) and David Wakairu
Murathe vs. Samuel Macharia
Civil Appeal No.171 of 1998
(K), which we did not find helpful.

Furthermore, learned counsel opposed the applicants’
proposition that the Secretary General has to await the actual
expiration
of 90 days before the submission to the Summit even after
all the comments are received. In his view such interpretation
renders
the provision absurd. Article 150 does not provide for
mandatory or any consultation and therefore requiring the Secretary
General
after receiving all the comments to postpone submission of
the same for further action would be pointless and absurd.

Consideration and conclusion of Issue No.2

There are two components in issue no.2, which in the
interest of clarity we shall consider separately. We shall first
consider whether
the amendment process infringed the Treaty by reason
of noncompliance with Article 150, and then consider if it infringed
the Treaty
in any other way.

We should mention at the outset that we do not agree
with the submission by counsel for the respondents that Article 150
provides
for two modes of amending the Treaty. In our view the
provision in Article 150(1) is a general provision reiterating the
position
at international law as reflected in Articles 39 and 40 of
the Vienna Convention on the Law of Treaties (Vienna Convention).
Article
39 substantially provides that a treaty may be amended by
agreement between the parties to it. That indicates the capacity to
amend
not the procedure for amending. Article 40 makes that quite
clear by providing that unless otherwise provided in the treaty –

“Any proposal to amend a multilateral
treaty as between all the parties must be notified to all the
contracting States, each
one of which shall have the right to take
part in:

  1. the decision as to the action to be taken in
    regard to that proposal

  2. the negotiation and conclusion of any agreement
    for the amendment of the treaty.”

In the instant case, the Treaty does not provide
otherwise. Rather in paragraphs (2) to (6) of Article 150 it makes
provisions for
the parties to it, i.e. the Partner States, to
participate in the amendment process. As we noted earlier in this
judgment, the
bone of contention is whether the provisions in those
paragraphs were complied with in making the impugned amendments. In
view
of the abandoned pleadings we alluded to earlier in this
judgment, we need focus only on the provisions in two of the
paragraphs,
namely paragraphs (4) and (5) of Article 150.

Paragraph (4) provides that the Partner States wishing
to comment on proposed amendments shall do so within 90 days from the
date
the proposals were dispatched to them. Paragraph (5) provides
that after expiration of that period (90 days), the Secretary General

shall submit the proposed amendments, with any comments thereon, to
the Summit through the Council.

It is not in dispute that the Secretary General
submitted the proposed amendments to the Summit long before expiry of
the period
of 90 days from the day he communicated them to the
Partner States. It is indeed recorded in the Report of the 4th
Extraordinary Meeting of the Summit held on 14th December
2006 that pursuant to Article 150 of the Treaty, the Summit received
the proposed amendments with the comments, not through
the Council,
but directly from the Secretary General at that meeting. That was
only 5 days after his communication to the Partner
States, and
therefore well before expiration of 90 days’ period.

We have given anxious consideration to the opposing
arguments on the interpretation to be placed on the expression “After
the expiration of the period prescribed under paragraph 4 of this
Article”
appearing in paragraph (5) of Article 150.
Counsel for the applicants urged that we must give it its plain
ordinary meaning that
translates to: “after expiration of 90
days
”, which is the period prescribed under paragraph 4.
However, we cannot overlook the force of the argument by counsel for
the respondents that to construe the paragraph as requiring the
Secretary General, in mandatory terms, to await the expiry of 90

days, could lead to unreasonable if not absurd result, where the
Secretary General has received the comments from all the Partner

States well ahead of the expiry of that period, as happened in the
instant case.

The Vienna Convention sets out international rules of
interpretation of treaties. Article 31 that comprises the General
Rule of
Interpretation reads –

“1. A treaty shall be interpreted in good
faith in accordance with the ordinary meaning to be given to the
terms of the treaty
in their context and in the
light of its object and purpose.

2. The context for the purpose of the
interpretation of a treaty shall comprise, in addition to the text,
including its preamble
and annexes:

(a) any agreement relating to the treaty which
was made between

all the parties in connection with
the conclusion of the treaty;

(b) any instrument which was made by one or
more parties in

connection with the conclusion of
the treaty and accepted by

the other parties as an instrument
related to the treaty.

3. There shall be taken into
account, together with the context:

(a) any subsequent agreement between the parties
regarding the interpretation of the treaty or the application
of its provisions;
(b)
any subsequent practice in
the application of the treaty which

establishes the agreement
of the parties regarding its

interpretation;

(c) any relevant rules of international
law applicable in the

relations between the parties.

4. A special meaning shall be given to a term if
it is established that the parties so intended.”
(Emphasis
added)

Article 32 then provides that where, in interpreting a
treaty, the application of Article 31 leaves the meaning ambiguous or
obscure
or leads to a result which is manifestly absurd or
unreasonable, recourse may be had to supplementary means of
interpretation including
the preparatory work of the treaty and the
circumstances of its conclusion.

Taking the said general principle of interpretation
enunciated in Article 31 of the Vienna Convention we think that we
have to interpret
the terms of the Treaty not only in accordance with
their ordinary meaning but also in their context and in light of
their objective
and purpose. Primarily we have to take objective of
the Treaty as a whole, but without losing sight of the objective or
purpose
of a particular provision. In that context, in our view, the
objective and purpose of Article 150 is to stress that the Treaty,
as
a contract binding on all the Partner States, may be amended only if
all the Partner States agree; and to regulate the procedure
for
processing the amendments up to conclusion.

With due respect to learned counsel for the applicants,
we are not persuaded by his argument that the purpose of prescribing
the
period of 90 days in paragraph (4) is to provide for the period
that every Partner State must spend undertaking unspecified
consultations.
When the Court sought from him clarification, he
asserted that the expression “After the expiration of the
period prescribed in paragraph 4”
was put there for a
purpose and he went on to say –

“It is in the context of the whole Treaty
which is people-centered … So, our contention is that this is
the period
that is allowed for consultation.
In
actual fact, the consultation may not take place, but this was the
purpose.

(Emphasis is added)

That answer exposes how the interpretation he urged for
could lead to absurd results. In our view, the purpose of paragraph
(4),
as stated in the paragraph itself, is to limit the time for
commenting on proposed amendments by any Partner State wishing to do

so. In construing paragraph (5) therefore, it cannot be correct to
transform that purpose into one of prescribing a mandatory
period for
unspecified consultations.

The clear core objective and purpose of paragraph (5) on
the other hand is to direct that the Secretary General shall submit
the
proposed amendments with the comments from the Partner States, if
any, to the Summit. It appears to us that the cross reference
to the
period prescribed under the preceding paragraph was made upon a
presupposition of the Partner States taking the whole period
of 90
days to comment. In our view it does not cover the scenario where the
Partner States take a shorter period to comment. We
think it is more
reasonable to conclude, as we hereby do, that paragraph (5) does not
expressly or impliedly require the Partner
States to carry out any
consultations, nor does it expressly or impliedly require the
Secretary General to hold the proposed amendments
and comments
thereon received from Partner States until expiration of the 90 days.
The correct construction must be that the provision
directs the
Secretary General to submit them to the Summit not later than the
expiry of that period.

Accordingly, we find that the submission of the proposed
amendments to the Summit by the Secretary General within 5 days after
his
communication to the Partner States was not an infringement of
paragraph (5) of Article 150 of the Treaty specifically.

We now turn to consider if by reason of failure to carry
out wide consultations on the proposals for the amendments, the
process
constituted an infringement of the Treaty in any other way.
It is useful at this point to recall the sequence of the critical
events
in the process.

Pursuant to the Summit communiqué of 30th
November 2006, an Extraordinary Meeting of the Attorneys General held
on 7th December considered and concluded the draft
amendments, which it recommended the Council to approve and submit to
the Summit. On
8th December, the Council met and approved
the draft, following which the Secretary General addressed a letter
dated 9th December 2006 to the Ministers responsible for
the East African Community Affairs in the three Partner States in
which he wrote

Re: Proposals for the Amendment
of the Treaty for the

Establishment of the East African
Community.

I have the honour to inform you that I have
received proposals from the Council of Ministers for the amendment of
the Treaty for
the establishment of the East African Community.

The proposals are shown in Part 2 of the
Report of the 12th Extraordinary Meeting (Ref EAC/CM/EX/12/2006)
which is enclosed herewith.
In accordance with Article 150(3) of the
Treaty,
I request you to facilitate your Partner
State’s consideration of these proposals. Given the urgency on
this matter, please
submit the comments to me by Monday, 11
th
December 2006.
This will enable me submit the
proposals to the Summit of Heads of State for consideration and
adoption.”
(Emphasis is added)

The responses were prompt. Uganda’s First Deputy
Prime Minister/Minister of East African Affairs replied on 11th
December, intimating simply that Uganda had no objection to the
proposed amendments to the Treaty. The Kenya Minister of East African

Community replied on 13th December also intimating that
Kenya concurred with the proposed amendments.

Only the Permanent Secretary of the Tanzania Ministry of
East African Cooperation, who replied on 12th December,
alluded to any consultation on the proposals. He wrote in part –

We have reviewed the
Report
of the 12th
Extraordinary Meeting… (Ref. No. EAC/CM/EX/12/2006) dated 8
th
December 2006 and Tanzania is in agreement with the proposals
therein. Given the urgency of the matter and the professionalism

shown by the Partner States Attorney Generals (sic) and
the Council of Ministers, the proposals can now be submitted to the
Higher Authorities for consideration.

Please note that December 9th
2006 was Tanzania’s 45
th
Independence Day celebrations and 10
th
December 2006 was a Sunday, hence consultations could not have been
done effectively during these days.

(Emphasis is added)

These were the only comments from the Partner States on
the proposed amendments. For the purposes of paragraph (4) of Article
150,
therefore, the Partner States through their responsible
officials made the comments within the prescribed period of 90 days
after
the Secretary General’s communication. The earliest was 2
days, and the latest was 4 days after the communication.

It is evident from the aforesaid correspondence that no
serious widespread consultations on the amendments within the Partner
States
were intended let alone carried out. It is noteworthy that
according to the record of the meeting of the Attorneys General, even

communication to the Partner States under paragraph (4) was not
contemplated since the recommendation was that Council should approve

the draft and submit it to the Summit for consideration and adoption.
It is also noteworthy that apparently the persons whose initial

recommendation to make the amendments was endorsed by the Summit in
its communiqué and who later approved the Attorneys
General’s
draft amendments to be communicated to the Partner States, are
virtually the very persons who received and considered
the amendment
proposals in the name of the Partner States. The Kenya Minister made
no pretensions about consultations when in his
reply to the Secretary
General he said –

I have studied the report and the
proposals therein
and Kenya concurs with the
proposed amendments.”

Even in the case of Tanzania where the Permanent
Secretary’s reply appears to imply that after the public
holiday on Independence
Day and Sunday there was some consultation on
Monday the 11th December, there cannot have been wide or
much consultation on the drafted amendments before he sent the reply
on 12th December.

As we observed earlier in this judgment, under Article 7
the people’s participation in cooperation activities set out
in,
and envisaged under the Treaty, is ranked high among the
operational principles of the Community. The best illustration in the
text of the Treaty is Article 30 where specifically, every resident
of a Partner State is empowered to access this Court for the
purpose
of participating in ensuring compliance with the Treaty.

However, neither Article 150 nor any other provision of
the Treaty specifies the modality and extent of people’s
participation
in cooperation activities in general and in the
amendment of the Treaty in particular. Ideally, it would have been
easier for this
Court to uphold and apply the proposition that every
amendment of the Treaty must involve prior consultation of the
people, if
the draftsman had provided the measure for determining
such involvement or participation, as is done for example, in
integration
treaties that provide for consulting the people through
referenda. Undoubtedly other forms of involving and consulting the
people
are also possible.

In this regard, we agree with learned counsel for the
applicants that we should take judicial notice of two major
activities subsequent
to the Treaty coming into force, which were
preceded by extensive consultations. We do take judicial notice of
the fact that consultation
on the “Zero Draft Protocol to
Operationalise Extended Jurisdiction” of this Court is still
on-going. We also take
judicial notice of the fact that the proposal
by the Summit to Fast-trackpolitical federation of the Partner States
was subjected
to extensive consultations of diverse categories of the
people in the Partner States, and ended in a determination that there
was
no consensus among the people to alter the sequence of stages set
out in Article 5(2) of the Treaty for the gradual phasing of the

integration process towards the ultimate stage of political
federation. Although the two sets of consultations were not conducted

uniformly, they undoubtedly reflect agreement among the Partner
States that the principle of people-centered cooperation is also

applicable to the Treaty amendment process.

In addition to these two examples mentioned by counsel
for the applicants, we also take judicial notice of the consultations
that
preceded the conclusion of the Protocol on the Customs Union and
the on-going consultations on the Common Market, which is the next

stage in the integration process.

As we noted earlier in this judgment, the Vienna
Convention provides in Article 31 that the context of a treaty
includes the text
as well as its preamble and annexes, and that for
the purpose of interpretation, there shall be taken into
consideration inter alia –

any subsequent practice in the application
of the treaty

which establishes the agreement of the parties
regarding its

interpretation.”

In accordance with this rule, we take into consideration
the said series of consultations as having established agreement
among
the parties to the Treaty that in seeking to apply or alter
provisions of the Treaty, the people shall be consulted. As to the
extent of such consultations, we think that until more elaborate
modalities are evolved as the Community continues to grow, the

resolve to allow participation of the private sector and civil
society recited in the preamble, and the objective to enhance and

strengthen partnerships with the private sector and civil society
enunciated in Article 5(3) (g), provide adequate guidelines.

We think this is the interpretation that gives full
meaning to the context of the Treaty. It is common knowledge that the
private
sector and civil society participated in the negotiations
that led to the conclusion of the Treaty among the Partner States
and,
as we have just observed, that they continue to participate in
the making of Protocols thereto. Furthermore, as we noted earlier
in
this judgment, Article 30 entrenches the people’s right to
participate in protecting the integrity of the Treaty. We think
that
construing the Treaty as if it permits sporadic amendments at the
whims of officials without any form of consultation with
stakeholders
would be a recipe for regression to the situation lamented in the
preamble of “lack of strong participation of the private
sector and civil society”
that led to the collapse of the
previous Community.

In conclusion we find that failure to carry out
consultation outside the Summit, Council and the Secretariat was
inconsistent with
a principle of the Treaty and therefore constituted
an infringement of the Treaty within the meaning of Article 30.
Accordingly,
we answer issue no.2 in the negative.

Submissions on Issue No.3

The argument of learned counsel for the applicants on
issue no.3 may also be sub-divided in two distinct aspects. The first
aspect
is the particular argument that because the impugned
amendments were made in reaction to the interim order of the Court in
Anyang’ Nyong’o Case (supra),
the undertaking of the amendments was an infringement of Articles
8(1) (c) and 38(2) and was ipso facto done in bad faith. The
second aspect is the general argument that inference of bad faith
ought to be drawn from the manner in which
the amendments were
conceived and processed and from the content of the amendments.

The first aspect was pleaded in paragraph 17(d) of the
reference as part of the subject matter of the reference. In the
pleading,
however, what was referred to the Court was the assertion
that “attempting or purporting to amend the Treaty while
the Court was still seized of Application No.1 of 2006”
infringed the Treaty and consequently vitiated the entire
amendment process rendering it of no legal effect. It could as well
have
been argued under issue no.2. The second aspect was not part of
the subject matter of the reference. It appears to have arisen from

the averment in the response of the 4th respondent who
pleaded in paragraph 7 that the process of amendment of the Treaty
“was undertaken in utmost good faith in accordance with
the Treaty…”
, which begs the question whether that
aspect of the issue was properly referred to the Court under Article
30. We shall dispose
of the two aspects separately.

Article 8(1) (c) is an undertaking by the Partner States
to abstain from any measures likely to jeopadise achievement of
objectives
of the Treaty or the implementation of its provisions.
Article 38 is concerned with the principle of acceptance of the
Court’s
decisions and in paragraph (2) it provides –

“Where a dispute has been referred to the
Council or the Court, the Partner States shall refrain from any
action which might
be detrimental to the resolution of the dispute or
might aggravate the dispute.”

The contention for the applicants is that the impugned
amendments were undertaken with a view to threaten and cow down the
Court.
Learned counsel for the applicants premised his argument on a
remark appearing in the record of the meeting of the Council held
on
28th November 2006, during the deliberations on the
implications of the Court’s interim order, to the effect that
“there is need for the organs of the Community to
appreciate and support each other in the discharge of the Community
functions.”
He invited the Court to infer from this
remark that the Council was unhappy and even angry with the Court
order, hence the inclusion
in the recommended amendments the
expansion of grounds for removal of judges of the Court.

Much of learned counsel’s argument was geared to
showing bad faith. However, when asked by the Court to explain how
the reaction
of the Council which was ultimately endorsed by the
Summit in the communiqué was likely to be detrimental to the
resolution
of the dispute or to aggravate it, the thrust of learned
counsel’s response was as follows: The decision to amend the
Treaty
was a reaction to the Court’s interim order in Anyang’
Nyong’ o case
. Both the Council and
the Summit were aware that the resolution of the dispute in that case
was still pending in the Court. The proposal
to extend the grounds
for removal of judges from the Court was calculated to intimidate the
judges and consequently was likely
to be detrimental to the
resolution of the dispute. In his lengthy reply on issue no.3,
learned counsel for the respondents did
not address this aspect. In
our view there is substance in the arguments of learned counsel for
the applicants, particularly in
the context of the surrounding
circumstances, whose summary below gives a clear understanding of
this conclusion.

It is common knowledge that at all the material times
the two members of the Court from the Republic of Kenya had been
victim of
a lightening scoop on the Kenya Judiciary in 2003 that saw
23 judges suspended from service on general allegations of
corruption.
The allegations against them were to be inquired into by
tribunals. Subsequently, one of the two judges of this Court was
cleared
of the allegations against him without their being inquired
into by the tribunal. He voluntarily retired from the Kenya judiciary

thereafter. The inquiry in respect of the other judge has not
progressed up to the present day, 5 years down the road. Both judges

were on the panel of the bench that was seized of the Anyang’
Nyong’o case
(supra).

The pertinent amendment extending the grounds for
removal of a judge is that under Article 26(1) (b) the Summit may
remove from
office –

(b) …a Judge who also holds judicial
office or other public office in a Partner State
[if that
judge] –

(i) is removed from that office for
misconduct or due to inability

to perform the functions of the office
for any reason; and

(ii) resigns from that office following
allegation of misconduct

or of inability to perform the functions
of the office for any

reason;

2. Where –

(a) …

(b) a Judge is subject to investigation by a
tribunal or other

relevant authority of a Partner State
with a view to his or her

removal from an office referred to in
paragraph 1(b); or

(c) …

the Summit may, subject to paragraph 2B, suspend
the Judge

from the exercise of the functions of his or her
office.”

The only reasonable and irresistible
inference from these provisions is that, while they may be of
general application, they were designed to suit the circumstances of

the two Kenya judges on this Court. The test to apply in determining
if that move infringed Article 38(2) is not whether or not
it
intimidated or was calculated to intimidate the two judges or any
other judge of the Court. The obligation under the Article
is not to
refrain from an act that is detrimental but from one that might be
detrimental. In our considered view, given the circumstances
we have
just summarized, the move was capable of unduly influencing the
pending judgment in Anyang’ Nyong’o case
(supra) and thereby be detrimental to the just resolution of the
dispute. The fact that it did not have that effect is
credit to the sense of independence on the part of the two judges
together with the
other judges on the panel, and to their resolve to
uphold the principles of judicial integrity and judicial
independence. We therefore
hold that that part of the amendments
constituted an infringement of Article 38(2) of the Treaty.

Turning to the second aspect of issue no.3, we reiterate
what we have just observed that it is not part of the subject matter
referred
for determination under Article 30 of the Treaty. The
reference was not for determination whether the amendments were made
in bad
faith, but rather whether the amendment process did not comply
with specified provisions of the Treaty, and therefore infringed

them. As submitted by learned counsel for the respondents, while in
the 4th respondent’s response and in three of the
affidavits supporting the respondents’ pleadings it was
positively asserted
that the amendments were made in good faith, the
applicants were not assertive in their pleadings that the amendments
were made
in bad faith, save that in the affidavit supporting the
reference there was an oblique or implicit mention of the deponent’s

belief that “amendments (to the Treaty) should be made in good
faith”. The emphasis in the reference and the supporting

affidavit is that the amendment process was illegal for infringing
provisions of the Treaty. Strictly therefore, the pleading in
the 4th
respondents’ response that the amendments were made in good
faith is more in the nature of “a cross-reference”,
which
is not provided for or envisaged under Article 30. We are therefore
constrained to observe for future guidance, that upon
further
reflection we think that we should not have allowed the framing of
this issue as it was framed. However, having allowed
not only the
framing of the issue but also full arguments on it, we consider it
prudent to make our views on it known.

In submitting that the impugned amendments were not
carried out in good faith, learned counsel for the applicants relied
on the
following grounds, namely that –

  • in recommending the amendments Council was motivated by
    an apparent perception that the Court was not cooperating with other
    organs
    of the Community;

  • the amendments were carried out in extraordinary haste;

  • the substance of the amendments, namely restructuring
    the Court into two divisions and increasing grounds for removal of
    judges,
    had no relationship with the problem or mischief the Council
    purported to address, namely delays of Community activities due to

    suspension of EALA functioning resulting from the Court’s
    interim order;

  • the way to avert the problem posed by the interim order
    in good faith, would have been for the Partner State concerned to
    concede
    and cause a fresh election of its representatives to EALA,
    without waiting for the final judgment.

Learned counsel for the respondents submitted that there
was no straight simple definition of the expression “good
faith”,
but that it connotes fairness and reasonableness. He
stressed that at international law, states are assumed to act in good
faith
and consequently the courts are reluctant to impute bad faith
on the part of a state unless it is well established by very clear

evidence. In support of this proposition he quoted a passage in the
arbitral award in the Tacna-Arica Question, In
the Matter of Arbitration between the Republic of Chile and the
Republic of Peru
(UN Reports of International Arbitral
Awards, 2006, Vol. II 921-958).

He argued that in the instant case, the impugned
amendment process was undertaken by three Partner States acting
together in the
Council and the Summit, which makes it more difficult
to impute bad faith on the part of three States. He contended that
even if
it is assumed that one Partner State was irked by, and over
reacted to the interim order that questioned the legitimacy of its
choice of representatives to the EALA, the other two who were not
party to the Anyang’ Nyong’o case
(supra) could not have been similarly affected by the interim
order. He opined that apart from that order, there must have been
other matters taken into consideration in deciding to amend the
Treaty. He further contended that the Partner States were within

their rights to consider the implications of the interim order on the
functioning of the Community, so long as they abided by the
Court
decision as they did.

Furthermore, learned counsel submitted that neither
infringement of a treaty provision per se nor the expeditious
processing of the amendments in the instant case should be construed
as acting in bad faith or as evidence thereof.

The reference in the Anyang’ Nyong’o
case
(supra) arose from a highly politicised dispute over
the determination of Kenya’s nine new Members of the EALA. It
is apparent
that although technically the reference raised a legal
issue of interpretation of the Treaty, the contesting parties viewed
it
in light of the political dispute and any Court decision in it,
whether interim or final, was taken as a matter of victory or defeat

in their political dispute. What is more, the timing of the interim
order, though unavoidable, was unfortunate. It issued when
the aura
of that dispute was still dominant. It was literally on the eve of
inauguration of the 2nd EALA when all concerned had
converged on Arusha for that important event in the calendar of the
Community. The order had the immediate
effect of suspending the event
and thereby the functioning of the EALA. That it met hostile
reception from some quarters in that
environment was inevitable and
not surprising.

We agree with learned counsel for the respondents that
the Council was entitled and indeed under duty to consider the
implications
of the interim order on the activities and functioning
of the Community as a whole. The inexplicable matter, however, is
that after
identifying the problems resulting from the suspension of
EALA activities, the Council did not come up with solutions to those
problems. Instead, it recommended the restructuring of the Court, as
if the Court was the problem, which recommendation had no bearing
on
the solution of the identified problems. It is on this dichotomy that
the applicant’s contention that the amendments were
not made in
good faith, is anchored. However, though we accept that the
recommendation thus appears to be without rationale that
alone cannot
be sufficient proof that the amendments were not made in good faith
let alone that they were made in bad faith. What
constitutes bad
faith?

The holding by the Supreme Court of the Philippines in
Benito Ang vs. Judge R.G. Quilala and
others:
[A.M.
No. MTJ-03-1476 February 4, 2003]

[http://www.supremecourt.gov.ph/jurisprudence/2003/feb2003/am_mtj_03_1476.htm]

appears to be pertinent and to provide a comprehensive
answer to this not so simple a question. Judge Ynars-Santiago, with
whom
all the other judges on the panel concurred, said –

Bad faith does not simply connote bad
judgment or negligence; it imputes a dishonest purpose or some moral
obliquity and conscious
doing of a wrong; a breach of a sworn duty
through some motive or intent or ill-will; it partakes of the nature
of fraud. It contemplates
a state of mind affirmatively operating
with furtive design or some motive of self-interest or ill-will for
ulterior purposes”

With regard to the difficulty of imputing bad faith on a
State, we agree with the view expressed in the passage referred to us
by
learned counsel for the respondents from the arbitral award in the
Tacna-Arica Question (supra). At
p.930 of the report, the arbitrator says –

“While there should be no hesitation in
finding such intent or bad faith, if established, and in holding the
party guilty
thereof to the consequences of its action, it is plain
that such a purpose should not be lightly imputed. Undoubtedly the
required
proof may be supplied by circumstantial evidence, but the
onus probandi of such a charge should not be lighter where the honour

of a Nation is involved than in a case where the reputation of an
individual is concerned.
A finding of the existence
of bad faith should be supported not by disputable inferences but by
clear and convincing evidence which
compels such a conclusion.

(Emphasis is added)

In Barcelona Traction, Light and Power Company
Limited (Belgium vs. Spain) 2
nd
Phase
(1970) I.C.J. Reports, Judge Tanaka (in a Separate
Opinion) at p.159 says –

Although the Belgian Government insists on
the existence of bad faith on the part of the Spanish judiciary and
puts forward some
evidence concerning the personal relationship of
Mr. Juan March and his group with some government personalities etc …
we
remain unconvinced of the existence of bad faith on the part of
the Spanish administrative and judicial authorities. What the Belgian

Government alleges for the purpose of evidencing bad faith of the
Spanish judges concerned does not go very much beyond surrounding

circumstances; it does not rely on objective facts constituting
collusion, corruption, flagrant abuse of judicial procedure by
the
Spanish judiciary. ….

It is not an easy matter to prove the existence of
bad faith because it is concerned with a matter belonging to the
inner psychological
process, particularly in a case concerning a
decision by a State organ. Bad faith cannot be presumed.”

We think the same must be said of the evidence, such as
there was, in the instant case. It fell short of proving conclusively
either
the contention of the respondents that the impugned amendments
were made in good faith or that of the applicants that the impugned

amendments were made in bad faith. However, the former contention is
helped by the presumption of fact that a State does not act
in bad
faith.

In order to rebut the presumption it was not sufficient
to show that the amendments were initiated as a result of the interim
order
which irked officials of one Partner State, and that they were
irrational because they did not address the mischief caused by the

interim order. It was necessary to adduce cogent evidence leading to
a compelling conclusion that all three Partner States colluded
to
make the amendments from such ill-motives as to intimidate or spite
the Court or its judges. From the evidence as it stands,
the Court
has no insight on what transpired during the deliberations that led
to each proposal for amendment. It is noteworthy
that the only
affidavit evidence adduced was from deponents who did not even claim
to have had personal knowledge as participants
in the deliberations
that resulted into the impugned amendments. Even if the issue had
been properly within the reference, therefore,
the evidence would not
have been sufficient to base a holding on.

Issues No.4 and No. 5

The last two framed issues were also not part of the
subject matter of the reference for the Court’s determination
under Article
30, and we allude to them briefly only because we
allowed argument on them.

The fourth issue is “Whether the amendments
as carried out can be stopped”.
In his submission under
this issue, learned counsel for the respondents, relying heavily on
the decision of the High Court of Kenya
in the case of Anyang’
Nyong’o and 10 others vs. Attorney General and another
,
High Court Case No. 49 of 2007, maintained that upon the
amendments being ratified by the Partner States in accordance with
paragraph
6 of Article 150, they took effect and therefore became
part of the Treaty. He argued that as such, they were no longer
amendments
and could not be reversed. According to learned counsel,
the position would have been different if the reference was made
prior
to the ratification when the amendments had not taken effect.

With due respect, we do not find merit in this argument.
The scope of Article 30 is not limited to anticipatory infringement
of
the Treaty. The Article envisages this Court determining the
legality of an Act that has been enacted and come into force, a
regulation
that has been made, a directive that has been given, a
decision that has been taken and an action that has been done and
concluded.
If upon reference of any of these the Court finds that it
is an infringement of the Treaty or otherwise unlawful it has to so
hold
and, depending on the nature of the infringement or
unlawfulness, may grant the discretionary remedy of a declaratory
judgment
annulling the such Act, regulation, directive, decision or
action, as the case may be.

We reiterate that the last framed issue, namely “Whether
the amendments will strengthen the Community”
, is also
not part of the reference on the legality of the impugned amendments.
Indeed, as it turned out during submissions by counsel,
there was
disagreement as to whose pleadings raised it, with counsel on either
side seeking to disown it because it was not material
to his case. Be
that as it may, it was not seriously canvassed that the impugned
amendments were unlawful or infringed the Treaty
because they did not
strengthen the Community or vice versa. Besides, with all due respect
to learned counsel, neither party was
able to show definitively to
what measure and in what way the amendments strengthened or weakened
the Community. In essence their
submissions were in the nature of
speculation. In the circumstances, we make no findings on this issue.

Conclusion

In the result, we hold that the lack of people’s
participation in the impugned amendment process was inconsistent with
the
spirit and intendment of the Treaty in general, and that in
particular, it constituted infringement of principles and provisions

in Articles 5(3) (g), and 7(1) (a). We also hold that the purpose for
which Article 26 was amended constituted infringement of
Article
38(2) of the Treaty.

Under paragraph 19 of the Reference, the applicants
prayed for four separate declarations. Our said holding covers the
declarations
sought under sub-paragraphs (a) and (b). Under
sub-paragraphs (c) and (d) they pray for –

“(c) DECLARATION that
the entire process of amendment of the Treaty to date is
unlawful and of no legal effect;

(d) DECLARATION that the purported ratification
processes for the said Treaty amendments employed by the
[Partner
States] are illegal, unconstitutional and of no legal effect”.

Earlier in this judgment, we indicated that we would
disregard as abandoned, the averment in paragraph 17(c) of the
reference alleging
that the ratifications of the amendments were
unconstitutional, illegal and of no legal effect since at the trial
it was not canvassed.
Accordingly we also disregard the corresponding
prayer (d) as abandoned.

With regard to the prayer in (c), we have considered
circumstances which appear to militate against the grant of that
declaration,
notwithstanding our holding. First, the text of the
Treaty is not explicit on the requirement of people’s
involvement in
its amendment. We have had to consider several
provisions of the Treaty in order to come to the conclusion that the
failure to
involve the people in the amendment constituted an
infringement of the Treaty. In view of that we deduce that the
infringement
was not a conscious one. Secondly, we are inclined to
the view that after this clarification of the law on the matter the
infringement
is not likely to recur. Thirdly, while we are mindful of
the gravity of infringement of Article 38(2) of the Treaty, we take
note
of the fact that in the instant case it had no significant
effect, if any. Lastly in our view, not all the resultant amendments

are incompatible with the Treaty objectives, and those that are,
which we shall revert to presently, are capable of rectification.

In the circumstances we think this is a proper case
where we should invoke the doctrine of prospective annulment. As we
observed
in Callist Mwatela Case, (supra),
the doctrine is good law. We should add that it is particularly
beneficial for our stage of developing integration and the emerging

Community jurisprudence. In the result we decline to invalidate the
amendments and declare that our holding on the requirement
of
involvement of people in the Treaty amendment process shall have
prospective application.

Two other specific prayers remain. We consider that in
view of our findings the order prayed for in paragraph (e) is
superfluous.
Lastly, on costs we order that the respondents shall
jointly and severally bear the applicants’ costs.

Before taking leave of the reference, we are constrained
to draw attention of those responsible for initiating rectification
of
anomalies in the Treaty, to two of the amendments whose
implications may have been lost in the haste.

1. By the provisions under Articles 23, 33(2) and 34,
the Treaty established the principle of overall supremacy of the
Court over
the interpretation and application of the Treaty, to
ensure harmony and certainty. The new

(a) proviso to Article 27;
and

(b) paragraph (3) of
Article 30
,

have the effect of compromising that principle and/or of
contradicting the main provision. It should be appreciated that the
question
of what “the Treaty reserves for an institution of a
Partner State” is a provision of the Treaty and a matter that
ought to be determined harmoniously and with certainty. If left as
amended the provisions are likely to lead to conflicting
interpretations
of the Treaty by the national courts of the Partner
States.

2. Article 26 of the Treaty established a mechanism for
the removal of judges for misconduct and inability to function as
determined
by an independent tribunal appointed by the Summit,
obviously applying uniform standards. When read together with Article
43(2)
it becomes apparent that the objective of the Treaty is for the
judges of the Court to be independent of the Partner States they

originate from. The introduction of automatic removal and suspension
on grounds raised or established in the home State, and applicable
to
only those in judicial or public office, makes possibilities of
applying un-uniform standards to judges of the same court endanger

the integrity of the Court as a regional court. Under the original
mechanism such grounds could be submitted for consideration
at the
Community level.

We strongly recommend that the said amendments be
revisited at the earliest opportunity of reviewing the Treaty.

Lastly, we wish to commend the applicants for the
vigilance they have demonstrated in trying to ensure the protection
of the objectives
of the Treaty. We also wish to thank all the
counsel for all the parties in this reference for their industry in
assisting us to
come to a just decision.

DATED at Arusha this day of
2008

J.
N. Mulenga

Vice
– President (as I then was)

Kasanga
– Mulwa

Judge
(as I then was)

M.S.
Arach – Amoko

Judge





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