Katabazi and 21 Others v Secretary General of the East African Community and Another (Ref. No. 1 of 2007)  EACJ 3 (1 November 2007)
IN THE EAST
AFRICAN COURT OF JUSTICE
Moijo M. ole Keiwua P, Joseph N. Mulenga VP, Augustino S. L.
Ramadhani J, Mary Stella Arach-Amoko J, Harold R. Nsekela J)
NO. 1 OF 2007
KATABAZI AND 21 OTHERS ……………………… APPLICANTS
GENERAL OF THE EAST AFRICAN
ATTORNEY GENERAL OF THE REPUBLIC OF UGANDA………………………………………………………
DAY OF NOVEMBER, 2007
is a Reference
by sixteen persons against the Secretary General of the East African
Community as the 1st
Respondent and the Attorney General of Uganda as the 2nd
story of the Claimants is that: During the last quarter of 2004 they
were charged with treason and misprision of treason and consequently
they were remanded in custody. However, on 16th
November, 2006, the High Court granted bail to fourteen of them.
Immediately thereafter the High Court was surrounded by security
personnel who interfered with the preparation of bail documents and
the fourteen were re-arrested and taken back to jail.
November, 2006, all the Claimants were taken before a military
General Court Martial and were charged with offences of unlawful
of firearms and terrorism. Both offences were based on the
same facts as the previous charges for which they had been granted
by the High Court. All Claimants were again remanded in prison
by the General Court Martial.
The Uganda Law
Society went to the Constitutional Court of Uganda challenging the
interference of the court process by the security
personnel and also
the constitutionality of conducting prosecutions simultaneously in
civilian and military courts. The Constitutional
Court ruled that the
interference was unconstitutional.
that decision of the Constitutional Court the complainants were not
released from detention and hence this Reference with
Claimants aver that the rule of law requires that public affairs are
conducted in accordance with the law and decisions of the
respected, upheld and enforced by all agencies of the Government and
citizens and that the actions of a Partner State of
agencies and the second Respondent have in blatant violation of the
Rule of Law and contrary to the Treaty continued
with infringement of
the Treaty to date.
Claimants have sought the following orders:
That the act of
surrounding the High Court by armed men to prevent enforcement of
the Court’s decision is an infringement of Articles
and 6 of the Treaty for the Establishment of the East African
Community (The Treaty).
the surrounding of the High Court by armed men from the Armed Forces
of Uganda is in itself an infringement of the Fundamental
of the Community in particular regard to peaceful settlement of
refusal by the Second Respondent to respect and enforce the decision
of the High Court and the Constitutional Court is infringement
Articles 7(2), 8(1)(c) and 6 of the Treaty.
continual arraignment of the Applicants who are civilians before a
military court is an infringement of Articles 6, 7, and 8
Treaty for Establishment of the East African Community.
inaction and the loud silence by the First Respondent is an
infringement of Article 29 of the Treaty.
Costs for the
Respondent in his response at the outset sought the Court to dismiss
the Reference on two grounds: One, that there was no cause of
disclosed against him, and two, that the affidavits in support of the
Reference were all incurably defective. In the alternative,
Respondent argued that:
allegations which form the basis of the Application have at no time
been brought to the knowledge of the 1st
Respondent and the Claimants are, therefore, put to strict proof.
Respondent, on the other hand, virtually conceded the facts as
pleaded by the Claimants. After admitting that the Claimants were
charged with treason and misprision of treason, the 2nd
Respondent stated in his Response:
November, 2005, the security agencies of the Government of Uganda
received intelligence information that upon release on bail,
Claimants were to be rescued to escape the course of justice and to
go to armed rebellion.
the security agencies
decided to deploy security at the High Court for purely security
reasons and to ensure that the Claimants are re-arrested
before the General Court Martial to answer charges of terrorism and
unlawful possession of firearms.
November, 2005, all the Claimants were charged in the General Court
Martial with terrorism and unlawful possession of firearms
service offences according to the Uganda People’s Defence Forces
Act, No. 7 of 2005.
in effect, the 2nd
Respondent is affirming that the acts did take place but contends
that they did not breach the rule of law.
Claimants were represented by Mr. Daniel Ogalo, Learned Counsel,
while the 1st
Respondent had the services of Mr. Colman Ngalo, Learned Advocate,
and Mr. Wilbert Kaahwa, Learned Counsel to the Community. The
Respondent was represented for by Mr. Henry Oluka, Learned Senior
State Attorney of Uganda assisted by Mr. George Kalemera and Ms.
Caroline Bonabana, Learned State Attorneys of Uganda.
the matter came up for the Scheduling Conference under Rule 52 of the
East African Court of Justice Rules of Procedure (The Rules),
Ngalo raised a preliminary objection that there is no cause of action
established against the 1st
Respondent. The pleadings of the Claimants do not disclose that at
any stage, the Secretary General was informed by the Applicants
anybody at all that the Applicants had been incarcerated or confined
or that their rights were being denied.
Ogalo responded by submitting that under Article 71(1)(d) of the
Treaty one of the functions of the Secretariat, of which the
Respondent is head, is:
either on its own initiative or otherwise, of such investigations,
collection of information, or verification of matters
relating to any
matter affecting the Community that appears to it to merit
Ogalo contended that it is not necessary that the 1st
Respondent must be told by any person “because he can, on his own,
Court dismissed the preliminary objection but we reserved our reasons
for doing so and we now proceed to give them. At the time
the preliminary objection the Court had not reached the stage of a
Scheduling Conference under Rule 52. It is at that
points of agreement and disagreement are sorted out. It was our
considered opinion that the matter raised could appropriately
classified at the Scheduling Conference as a point of disagreement.
apart from that the matter raised by Mr. Ngalo was not one which
could be dealt with as a preliminary objection because it was
point of law but one involving facts. As LAW,
J. A. of the East African Court of Appeal observed
Biscuit Manufacturing Co. Ltd. v. West End Distributors Ltd.
 E. A. 696 at p. 700:
So far as I am
aware, preliminary objection consists of a point of law which has
been pleaded, or which arises by clear implication
out of pleadings,
and which if argued as a preliminary point may dispose of the suit.
Examples are an objection to the jurisdiction
of the court, or a plea
of limitation, or a submission that the parties are bound by the
contract giving rise to the suit to refer
the dispute to arbitration.
Then at p. 701 SIR
CHARLES NEWBOLD, P. added:
objection is in the nature of what used to be a demurrer. It
raises a pure point of law which is argued on the assumption that all
the facts pleaded by the other side are correct.
cannot be raised if any fact has to be ascertained or
if what is sought is the exercise of judicial discretion. (Emphasis
The Court of
Appeal of Tanzania in Civil Reference No. 32 of 2005, Etiennes
National Housing Corporation
dealt with a similar issue and, after citing Mukisa
with approval, held:
Here facts have to
be ascertained in all the remaining six grounds of the so called
preliminary objection and that is why the Respondent
has filed two
affidavits which have been objected to by the applicant.
We are of the
decided view that grounds of preliminary objection advanced cannot be
disposed off without ascertaining facts. These
are not then matters
for preliminary objection. So, we dismiss the motion for preliminary
objection with costs.
or not the 1st
Respondent had knowledge of what was happening to the complainants in
Uganda can never ever be a point of law but one of fact to
by evidence and, therefore, it could not be a matter for a
preliminary objection and hence the dismissal.
may as well point out here, for the sake of completeness, that Mr.
Ngalo also challenged the legality of the affidavits filed in
of the Reference. However, in the course of answering questions from
the Bench he abandoned his objection in the following
Your Lordships, I
am not going to pursue this point. I concede that these affidavits
are sufficient for the purposes of this application.
issues were agreed upon at the Scheduling Conference which were:
the invasion of the High Court premises by armed agents of the
Second Respondent, the re-arrest of the Complainants granted
the High Court and their incarceration in prison constitute
infringement of the Treaty for the Establishment of the East
the First Respondent can on his own initiative investigate matters
falling under the ambit of the provisions of the Treaty.
As for the first
issue Mr. Ogalo submitted that the Court was called on to interpret
Articles 6, 7, 8, 29 and 71 of the Treaty and
implored the Court to
do so by looking at “the ordinary meaning of the words used in
those provisions, the objectives of the Treaty
and the purposes of
main plank of argument was that the acts complained of violated one
of the fundamental principles of the Community as spelled
Article 6(d), that is, rule of law. As to the import of that doctrine
he referred us to The
Republic v. Gachoka and Another,
 1 EA 254; Bennett
v. Horseferry Road Magistrates’ Court and Another 
2 All ER 474; and a passage in Kanyeihamba’s
Commentaries on Law, Politics and Governance
(Renaissance Media Ltd, 2006) p 14.
learned advocate pointed out that the first complaint is the act of
surrounding the High Court of Uganda by armed men so as to
the enforcement of the decision of the Court. The second act was the
re-arrest and the incarceration of the Complainants.
Mr. Ogalo pointed
out that the acts complained of constituted contempt of court and
also interference with the independence of the
concluded that both contempt of court and the violation of the
independence of the judiciary contravene the principle
of the rule of
for the second issue Mr. Ogalo was very brief. He submitted that the
Respondent is empowered by Article 71 (1)(d), on his own initiative,
to conduct investigation, collect information or verify facts
relating to any matter affecting the Community that appears to him to
merit examination. The stand taken by Mr. Ogalo was that if
Respondent properly exercised his powers under the Treaty, he should
have known the matters happening in Uganda as a Partner State
take appropriate actions.
asked the Court to find both issues in favour of the complainants.
reply Mr. Ngalo pointed out that what concerned the 1st
Respondent was the second issue. The Learned Counsel submitted that
the complainants are alleging that the 1st
Respondent ought to have reacted to what the 2nd
Respondent was doing in Uganda. However, he contended, there is no
evidence that the 1st
Respondent was aware of those activities. He pointed out that Article
29 starts by providing “Where the Secretary General considers
a Partner State has failed …” and he argued that for the
Secretary General to “consider” he has to be aware but the
Complainants have failed to establish that awareness.
As for Article 71
Mr. Ngalo submitted that it provides for the functions of the
Secretariat as an institution of the Community and
not as to what
happens in the Partner States.
Respondent Mr. Oluka dealt with the surrounding of the High Court,
the re-arrest and the continued incarceration of the Complainants.
The Learned Senior State Attorney pointed out that all the three
matters were fully canvassed and decided upon by the Constitutional
Court of Uganda. Therefore, he submitted that this Court is
prohibited by the doctrine of
from dealing with those issues again.
that though the facts in this Reference and those which were in the
Petition before the Constitutional Court of Uganda are
the same, the parties are different. In the Constitutional Petition
No. 18 of 2005, the parties were The Uganda Law
Society and the
Attorney General of Uganda while in this Reference the parties are
James Katabazi and 21 others, on the one hand,
and the Secretary
General of the Community and the Attorney General of Uganda, on the
other hand. Nevertheless, Mr. Oluka stuck to
his guns that the
doctrine of res
applies to this Reference.
also submitted that under Article 27 (1) this Court does not have
jurisdiction to deal with matters of human rights until jurisdiction
is vested under Article 27(2). He, therefore, asked the Court to
dismiss the Reference with costs.
are three issues which we think we ought to dispose of at the outset:
First, whether or not Article 71 is relevant in this application.
Second, whether or not the doctrine of res
applies to this Reference. Last, is the issue of the jurisdiction of
this Court to deal with human rights.
is the argument of Mr. Ogalo that Article 71 (1) (d) imposes on the
Respondent the duty to collect information or verify facts relating
to any matter affecting the Community that appears to him to
examination. Mr. Ngalo, on the other hand, contends that Article 71
(1) (d) sets out the functions of the Secretariat as an
of the Community and not as to what happens in the Partner States
Article 71 (1) (d)
provides as follows:
shall be responsible for:
undertaking either on its own initiative or otherwise, of such
investigations, collection of information, or verification
to any matter affecting the Community that
appears to it to merit examination; (Emphasis is supplied.)
Ngalo wanted to confine the functions of the Secretariat under
Article 71 (1) (d) to internal matters of the Secretariat as an
organ, which he erroneously referred to as an institution, divorced
from the duties imposed on the Secretary General under Article
is, therefore, our considered opinion that Article 71 (1) (d) applies
to this Reference.
we barred from adjudicating on this Reference because of the doctrine
The doctrine is uniformly defined in the Civil Procedure Acts of
Kenya, Uganda and Tanzania as follows:
No court shall try
any suit or issue in which the matter directly and substantially in
issue has been directly and substantially in
issue in a former suit
between the same parties, or between parties under whom they or any
of them claim, litigating under the same
title, in a court competent
to try such subsequent suit or the suit in which such issue has been
subsequently raised, and has been
heard and finally decided by such
situations appear to us to be essential for the doctrine to apply:
One, the matter must be “directly and substantially”
in issue in
the two suits. Two, parties must be the same or parties under whom
any of them claim litigating under the same title.
Lastly, the matter
was finally decided in the previous suit. All the three situations
must be available for the doctrine of res
operate. In the present case one thing is certain: The parties are
not the same and cannot be said to litigate under the same title.
Mr. Oluka himself has properly conceded that.
while in the Constitutional Court of Uganda the issue was whether the
acts complained of contravene the Constitution of
Uganda, in the
instant Reference the issue is whether the acts complained of are a
violation of the rule of law and, therefore, an
infringement of the
Treaty. Therefore, the doctrine does not apply in this Reference.
Does this Court
have jurisdiction to deal with human rights issues? The quick answer
is: No it does not have. Jurisdiction of this
Court is provided by
Article 27 in the following terms:
The Court shall
initially have jurisdiction over the interpretation and application
of this Treaty.
Court shall have such other original, appellate, human rights and
other jurisdiction as will be determined by the Council at
suitable subsequent date. To this end, the Partner States shall
conclude a Protocol to operationalise the extended jurisdiction.
very clear that jurisdiction with respect to human rights requires a
determination of the Council and a conclusion of a Protocol
effect. Both of those steps have not been taken. It follows,
therefore, that this Court may not adjudicate on disputes concerning
violation of human rights per
However, let us
reflect a little bit. The objectives of the Community are set out in
Article 5 (1) as follows:
objectives of the Community shall
be to develop policies and programmes aimed at widening and
deepening co-operation among the Partner States in political,
economic, social and cultural fields, research and technology,
defence, security and legal
and judicial affairs,
for their mutual benefit. (Emphasis supplied.)
and (3) give details of pursuing and ensuring the attainment of the
objectives as enshrined in sub-article (1) and
of particular concern
here is the “legal and judicial affairs” objective.
Article 6 sets out the fundamental principles of the Community which
governs the achievement of the objectives of the Community,
as provided in Article 5 (1). Of particular interest here is
paragraph (d) which talks of the rule of law and the promotion
the protection of human and peoples’ rights in accordance with the
provisions of the African Charter on Human and Peoples’
Article 7 spells
out the operational principles of the Community which govern the
practical achievement of the objectives of the Community
Sub-Article (1) and seals that with the undertaking by the Partner
States in no uncertain terms of Sub-Article (2):
Partner States undertake to abide by the principles of good
governance, including adherence to the principles of democracy, the
rule of law,
social justice and
the maintenance of universally accepted standards of human rights.
Article 8 (1) (c) the Partner States undertake, among other things:
Abstain from any
measures likely to jeopardise the achievement of those objectives or
the implementation of the provisions of this
the Court will not assume jurisdiction to adjudicate on human rights
it will not abdicate from exercising its jurisdiction of
interpretation under Article 27 (1) merely because the Reference
allegation of human rights violation.
we go back to the substance of this Reference. As we have already
observed in this judgment, the 2nd
Respondent has conceded the facts which are the subject matter of
this Reference and, so, they are not in dispute. He has only offered
some explanation that the surrounding of the Court, the re-arrest,
and therefore, the non observance of the grant of bail, and the
re-incarceration of the Complainants were all done in good faith to
ensure that the Complainants do not jump bail and go to perpetuate
Mr. Ogalo invited
us to find that explanation unjustified because it was not supported
by evidence. We agree with him and we would
go further and observe
that “the end does not justify the means”.
Complainants invite us to interpret Articles 6(d), 7(2) and 8(1)(c)
of the Treaty so as to determine their contention that those
for which they hold the 2nd
Respondent responsible, contravened the doctrine of the rule of law
which is enshrined in those articles.
provision of Article 6(d) provides as follows:
principles that shall govern the achievement of the objectives of the
Community by the Partner States shall include:
governance including adherence to the principles of democracy, the
rule of law,
accountability, transparency, social justice, equal opportunities,
gender equality, as well as the recognition, promotion and
protection of human and peoples’ rights in accordance with the
provisions of the African Charter on Human and Peoples’ Rights;
The starting point
is what does rule of law entail?
Wikipedia, the Free
in its most basic form, is the principle that no one is above the
follows logically from the idea that truth, and therefore law, is
based upon fundamental principles
which can be discovered, but which
cannot be created through an act of will.
(Emphasis is supplied.)
goes further to amplify:
Perhaps the most
important application of the rule of law is the principle that
governmental authority is legitimately exercised only
with written, publicly disclosed laws adopted and enforced in
accordance with established procedural steps that are
referred to as
due process. The principle is intended to be a safeguard against
arbitrary governance, whether by a totalitarian leader
or by mob
rule. Thus, the rule of law is hostile both to dictatorship and to
at home in East Africa Justice George Kanyeihamba in Kanyeihamba’s
Commentaries on Law, Politics and Governance
at page 14 reiterates that essence in the following words:
rule of law is not a rule in the sense that it binds anyone. It is
merely a collection of ideas and principles propagated in the
so-called free societies to guide lawmakers, administrators, judges
and law enforcement agencies. The
overriding consideration in the theory of the rule of law is the idea
that both the rulers and the governed are equally subject
to the same
law of the land.
is palpably clear to us, and we have no flicker of doubt in our
minds, that the principle of “the
rule of law”
contained in Article 6(d) of the Treaty encapsulates the import
propounded above. But how have the courts dealt with it? In The
Republic v. Gachoka and Another
the Court of Appeal of Kenya reiterated the notion that rule of law
entails the concept of division of power and its strict observance.
v. Horseferry Road Magistrates’ Court and Another,
the House of Lords took the position that the role of the courts is
to maintain the rule of law and to take steps to do so.
that appeal the Appellant, a New Zealander, while living in Britain
obtained a helicopter by false pretences and then fled the
He was later found in South Africa but as there was no Extradition
Treaty between Britain and South Africa, the police authorities
the two countries conspired to kidnap the Appellant and took him back
to Britain. His defence to a charge before a divisional
that he was not properly before the court because he was abducted
contrary to the laws of the two countries. That defence
by the divisional court. However, on appeal to the House of Lords
LORD GRIFFITHS remarked at page 108:
If the Court is to
have the power to interfere with the prosecution in the present
circumstances it must be because the judiciary
responsibility for the maintenance of the rule of law that embraces a
willingness to oversee executive action and to refuse
behaviour that threatens either basic human rights or the rule of
His Lordship went
It is to my mind
unthinkable that in such circumstances the court should declare
itself to be powerless and stand idly by.
then referred to the words of LORD DEVLIN in Connelly
 2 All ER 401 at 442:
The courts cannot
contemplate for a moment the transference to the executive of the
responsibility for seeing that the process of
law is not abused.
The appeal was
allowed and the appellant was let scot-free.
the facts complained of in this Reference breached the sacred
principle of rule of law as expounded above?
us briefly reiterate the facts even at the risk of repeating
ourselves: The Complainants
were granted bail by the High Court of Uganda but some armed security
agents of Uganda surrounded the High Court premises
execution of the bail, re-arrested the Complainants, re-incarcerated
them and re-charged them before a Court Martial.
were not released even after the Constitutional Court of Uganda
Ogalo left no
unturned to persuade us to find that what the soldiers did breached
the rule of law. He referred us to similar facts in the
Rights Project and Civil Liberties v. Nigeria,
Communication 143/95, 150/96 – AHG/222 (XXXVI) Annex V p 63. In
that matter Chief Abiola, among others, was detained and the Federal
Government of Nigeria refused to honour the bail granted to him by
court. In the said Communication the African Commission on Human
Rights had this to say in paragraph 30 on page 67:
fact that the government refuses to release Chief Abiola despite the
order of his release on bail made by the Court of Appeal
violation of Article 26 which obliges State parties to ensure the
independence of the judiciary. Failing
to recognise a grant of bail by the Court of Appeal militates against
the independence of the judiciary.
facts in that Communication are on all fours with the present
and we find that the independence of the judiciary, a corner stone of
the principle of the rule of law, has been violated.
Commission went further to observe in paragraph 33 that:
attempts to justify Decree No. 14 with the necessity for state
security. While the Commission is sympathetic to all
to maintain public peace, it must note that too often extreme
measures to curtail rights simply create greater unrest.
dangerous for the protection of human rights for the executive branch
of government to operate without such checks as the judiciary
is exactly what the Government of Uganda through the Attorney
General, the 2nd
Respondent, attempted to do, to justify the actions of the Uganda
Peoples’ Defence Forces:
November, 2005, the security Agencies of the Government of Uganda
received intelligence information that upon release on bail,
Claimants were to be rescued to escape the course of justice and to
go to armed rebellion.
the security agencies decided to deploy security at the High Court
for purely security reasons and to ensure that the Claimants
re-arrested and taken before the General Court Martial to answer
charges of terrorism and unlawful possession of firearms.
We on our part are
alarmed by the line of defence offered on behalf of the Government of
Uganda which if endorsed by this Court would
lead to an unacceptable
and dangerous precedent, which would undermine the rule of law.
Much as the
exclusive responsibility of the executive arm of government to ensure
the security of the State must be respected and
upheld, the role of
the judiciary to provide a check on the exercise of the
responsibility in order to protect the rule of law cannot
gainsaid. Hence the adjudication by the Constitutional Court of
Uganda referred to earlier in this judgment. In the context of
East African Community, the same concept is embodied in Article 23
The Court shall be
a judicial body which shall ensure the adherence to law in the
interpretation and application and compliance with
hold that the intervention by the armed security agents of Uganda to
prevent the execution of a lawful Court order
violated the principle
of the rule of law and consequently contravened the Treaty. Abiding
by the court decision is the corner stone
of the independence of the
judiciary which is one of the principles of the observation of the
rule of law.
The second issue
is rather nebulous and we better reproduce it for a better
the first Respondent can on his own initiative, investigate matters
falling under the ambit of the provisions of the Treaty.
Article 29(1) of
the Treaty provides as follows:
Secretary General considers that a Partner State has failed to fulfil
an obligation under this Treaty or has infringed a
provision of this
Treaty, the Secretary General shall submit his or her findings to the
Partner State concerned for that Partner
State to submit its
observations on the findings.
General is required to “submit his or her findings to the Partner
State concerned”. It is obvious to us that before
General is required to do so, she or he must have done some
investigation. From the unambiguous words of that sub-Article
is nothing prohibiting the Secretary General from conducting an
investigation on his/her own initiative. Therefore, the glaring
answer to the second issue is: Yes the Secretary General can on his
own initiative investigate such matters.
the real issue here is not whether he can but whether the Secretary
General, that is, the 1st
Respondent, should have done so. It was in this regard that there was
heated debate in the preliminary objection on whether or not
Secretary General must have intelligence of some activity happening
in a Partner State before he undertakes an investigation.
dismissed the preliminary objection for the reason that the issue was
not a point of law but one of fact requiring evidence. That
of whether or not the 1st
Respondent had knowledge, however, was never produced by the
Complainants in the course of the hearing. This, therefore, is the
juncture to determine whether or not knowledge is an
essential prerequisite for an investigation by the 1st
are of the decided opinion that without knowledge the Secretary
General could not be expected to conduct any investigation and
up with a Report under Article 29(1).
may as well add that it is immaterial how that information comes to
the attention of the Secretary General. As far as we are concerned
would have sufficed if the Complainants had shown that the events in
Uganda concerning the Complainants were so notorious that
Respondent could not but be aware of them. But that was not the case
for the Complainants.
almost all jurisdictions courts have the powers to take judicial
notice of certain matters. We are not prepared to say that what
complained of here is one such matter. However, the powers that the
Secretary General has under Article 29 are so encompassing
pertinent to the advancement of the spirit of the re-institution of
the Community and we dare observe that the Secretary
General ought to
be more vigilant than what his response has portrayed him to be.
any case, it is our considered opinion that even if the 1st
Respondent is taken to have been ignorant of these events, the moment
this Application was filed and a copy was served on him, he
became aware, and if he was mindful of the delicate responsibilities
he has under Article 29, he should have taken the necessary
under that Article. That is all that the Complainants expected of
him: to register with the Uganda Government that what happened
detestable in the East African Community.
the result we hold that the Reference succeeds in part and the
Claimants are to have their costs as against the 2nd
JOSEPH N. MULENGA
AUGUSTINO S. L. RAMADHANI
MARY STELLA ARACH-AMOKO
HAROLD R. NSEKELA