kyomuhendo v attorney general of republic of uganda and others reference no 11 of 2020 2024 eacj 15 29 november 2024

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IN THE EAST AFRICAN COURT OF JUSTICE

AT ARUSHA

FIRST INSTANCE DIVISION (Coram : Yohane B. Masara, PJ; Richard Muhumuza, Richard Wabwire Wejuli, ~ Leonard Gacuko & Kayembe Ignace Rene Kasanda, JJ) REFERENCE NO. 11 OF 2020 ADAM KYOMUHENDO .................................................. APPLICANT

VERSUS

THE ATTORNEY GENERAL OF THE REPUBLIC OF UGANDA ........................ 1sr RESPONDENT

THE ATTORNEY GENERAL OF THE REPUBLIC OF KENYA ... ....................... 2N□ RESPONDENT

THE ATTORNEY GENERAL OF THE UNITED REPUBLIC OF TANZANIA .......... 3RD RESPONDENT

THE ATTORNEY GENERAL OF THE REPUBLIC OF RWANDA ....................... 4TH RESPONDENT

THE ATTORNEY GENERAL OF THE REPUBLIC OF BURUNDI ....... .... .. .......... 5TH RESPONDENT

THE ATTORNEY GENERAL OF THE REPUBLIC OF SOUTH SUDAN ............... 5TH RESPONDENT

THE SECRETARY GENERAL OF THE EAST AFRICAN COMMUNITY ................ 7TH RESPONDENT 29TH NOVEMBER, 2024

JUDGEMENT OF THE COURT A. INTRODUCTION 1. This Reference was brought before the East African Court of Justice ("the Court") on 4th May 2020 under Articles 3(2)-(4), 6(d), 7(1 )(a) and (2), 8(1 )(a) and (c), 23, 27(1 ), 30, 38(2), 67(3), 123(3)(c), 9(1 )(a), 10(1 ), 11 (1) - (9), 12(1) - (4 )) of the Treaty for the Establishment of the East African Community ("the Treaty") and Rule 25 of the East African Court of Justice Rules of the Court, 2019 ("the Rules").

2. The Applicant, Mr. Adam Kyomuhendo, is a natural person, a citizen and resident of the Republic of Uganda, a Partner State of the East African Community. His address of service for the purposes of this Reference is c/o Parkhill Advocates, 2 nd Floor, Suite C4, Block C, Rovis Apartments, Plot 49, P.O. Box 37405 Kampala, Republic of Uganda.

3. The 1st Respondent is the Attorney General of the Republic of Uganda, sued in his official capacity as the Principal Legal Advisor of the Government of the Republic of Uganda. His address of service is: c/ o Ministry of Justice and Constitutional Affairs, Plot 7, Parliamentary Avenue, Bauman House, P.O Box 7183, Kampala-Uganda.

4. The 2nd Respondent is the Attorney General of the Republic of Kenya, sued in his capacity of the Principal Legal Advisor of the Republic of Kenya, a Partner State. His address of service is: c/o Attorney General's Chambers, Office of the Attorney General & Department of Justice, Sheria House, 7th Floor, Harambee Avenue, P.O. Box 40112- 00100, Nairobi.

5. The 3rd Respondent is the Attorney General of the United Republic of Tanzania, sued in his capacity as the Chief Legal Advisor to the Reference No. 11 of 2020 Page 1 Government of the United Republic of Tanzania. For the purposes of this Reference, his address for service is: Office of the Solicitor General, 20 Kivukoni Road, PO. Box 71554, 11492 Dar es Salaam, United Republic of Tanzania.

6. The 4th Respondent is the Attorney General of the Republic of Rwanda, sued in his official capacity as the Principal Legal Advisor of the Government of the Republic of Rwanda.

7. The 5th Respondent is the Attorney General of Burundi, sued in his official capacity as the Principal Legal Advisor of the Republic of Burundi. His address for service for the purposes of the instant Reference is c/o The Office of the Attorney General of the Republic of Burundi, Minister of Justice, P.O. Box 1880, Bujumbura, Burundi.

8. The 6th Respondent is the Attorney General of the Republic of South Sudan, sued in his capacity as the Principal Legal Advisor of the Respondent State. His address of service for the purposes of this Reference is: c/o the Office of the Attorney General, (Hon Minister of Justice & Constitutional Affairs), Airport Rd., Next to CES Ministry of Education, Juba- Republic of South Sudan.

9. The 7th Respondent is the Secretary General of the East African Community, sued in his official capacity as the Principal Executive Officer of the Community as well as in his capacity as the Head of the EAC Secretariat, the Secretary of its Summit and the custodian of the Legal Instruments of the said Community.

10. The Reference seeks to challenge the Democratic Republic of Congo's (hereinafter, "DRC") application to join the East African Community due to the alleged continuing arbitrary and incommunicado Reference No. 11 of 2020 Page 2 detention of a number of persons and citizens of the Republic of Uganda. B. REPRESENTATION 11 . At the hearing, the Applicant appeared in person. The 1st Respondent was represented by Mr Hillary Ebila, State Attorney; the 2nd Respondent was represented by Ms Schola Mbilo, Principal State Counsel and Ms Mary Muchago State Counsel; the 3rd Respondent was respectively represented by Ms Vivian Method and Ms Veritas Mlay, Principal State Attorneys, Ms Narindwa Sekimanga, Senior State Attorney and Ms Victoria Rugendo, State Attorney; the 4th Respondent was represented by Mr Nicholas Ntarugera, Senior State Attorney; the 5th Respondent was represented by Mr Diomede Vyizigiro, Director of Civil Litigation and Mr. Pacifique Barankitse, Senior State Attorney; the 6th Respondent was not represented, while the 7th Respondent was represented by Or Anthony L. Kafumbe, Counsel to the Community. C.BACKGROUND 12. As presented by the Applicant, the subject matter of this Reference originates from the circumstances of the political and human rights activists SAMUEL WILLIAM MUGUMYA, STEPHEN MUGISHA, AGGREY KAMUKAMA, JOSEPH KAMUGISHA, NATHAN BRIGHT and 35 Unnamed Others who have been detained by the Government of (DRC)'s agents.

13. According to the Applicant, the above-mentioned political and human rights activists were arrested and subjected to detention, which he qualifies as arbitrarily, incommunicado, extra-legally and very pitiful in various prisons and detention facilities including the Ndolo Military Reference No. 11 of 2020 Page 3 Prison run or operated by the Government of the DRC, including its agents, proxies, servants or auxiliaries under its direct command, influence and control.

14. The Applicant alleges that, as result of the arrest and arbitrary detention of the above human rights activists, the latter have been denied access to their family, relations and lawyers of their choice which is in serious violation and contravention of fair trial safeguards as are entrenched in the provisions of the African Charter of Human and Peoples Rights and other international legal instruments.

15. Following the actions denounced by the Applicant and attributed to the DRC's Agents, the Applicant approached this Court praying inter a/ia that the Summit of the Heads of State and Government be restrained from considering the application by the DRC to join the East African Community unless and until she immediately and unconditionally releases, pays and meets its obligations towards the above-stated detainees. D. THE APPLICANTS' CASE 16. The Applicant's case is contained in his Statement of Reference and in the Affidavit affirmed by the Applicant on 28thApril 2020. The Applicant's case is also set out in the Rejoinder to the Respondents' Responses to the Statement of Reference. The Applicant also filed written Submissions in support of the Reference and the Rejoinder to the Respondents' written Submissions.

17. The gravamen of the instant Reference is the DRC's application to join the East African Community as a Partner State. Reference No. 11 of 2020 Page4 18. It is the Applicant's case that at the time of filing the Reference, the DRC had applied to join the East African Community as its 7th Partner State. However, becoming aware of both DRC'S application to join the community and the arbitrary and incommunicado detention by her agents since 2014 of the citizens of the Republic of Uganda mentioned in the Reference, the Applicant commenced this Reference alleging that DRC's application must not be entertained by the relevant organs of the Community because, in his eyes, to do so would be to violate the fundamental and operational principles of Community.

19. The Applicant alleges that the Republic of Uganda, the 1st Respondent in the instant Reference, has at all material times been complicit together with DRC in perpetuating the suffering of the abovesaid citizens mentioned in the Reference and or has at all material times been aware of the incommunicado detention more than 6 years without trial contrary to international law.

20. According to the Applicant, the above-stated persons were and or continue to be detained in various military and other civilian installations without being subjected to fair trial and, if so done, contrary to international law principles on fair trial. 21 . The Applicant vigorously argues that to allow the admission processes of the DRC to continue would be an abuse of process and on the part of the Court, to lend legitimacy or official cover to misadventures of Partner States which would be in flagrant violation of the Treaty and international law.

22. Consequently, the Applicant prays for the following orders reproduced verbatim: Reference No. 11 of 2020 Page 5 i. A DECLARATION that the accumulated actions by the Government of and THE DEMOCRATIC REPUBLIC OF CONGO, its agents, servants, proxies and or officials of ARBITRARILY and INCOMMUNICADO detaining SAMUEL WILLIAM MUGUMYA, STEPHEN MUGISHA, AGGREY KAMUKAMA, JOSEPH KAMUGISHA, NATHAN BRIGHT and 35 Other citizens of the Republic of Uganda, a Partner State of the East African Community, and denying them a fair trial for an accumulated period of about six (6) years breaches, violates and infringes Articles (3)(a)(b) and (f), 6(d), 7(2), 8(1)(c), 30 and 123(c) of the TREATY FOR THE

ESTABLISHMENT OF THE EAST AFRICAN COMMUNITY ( the EAC); ii. A DECLARATION that the accumulated violations in paragraph 4.1 perpetrated by the Government and THE DEMOCRATIC REPUBLIC OF CONGO against SAMUEL WILLIAM MUGUMYA, STEPHEN MUGISHA, AGGREY KAMUKAMA, JOSEPH KAMUGISHA, NATHAN BRIGHT and 35 Other citizens of the Republic of Uganda - a Partner State of the East African Community- make

THE DEMOCRATIC REPUBLIC OF CONGO INELIGIBLE to be admitted by THE SUMMIT OF THE HEADS OF

STATE AND GOVERNMENT OF THE EAST AFRICAN COMMUNITY as the Community's 7th Partner State UNLESS and UNTIL the Government and THE

DEMOCRATIC REPUBLIC OF CONGO IMMEDIATELY and UNCONDITIONALLY ceases the stated violations, Reference No. 11 of 2020 Page 6 formally apologises to the victims of these violations including to the Government and THE REPUBLIC OF UGANDA - a Partner State of the East African Community- for violation of her citizens' rights -and-

FULLY AND SUFFICIENTLY PAYS MONETARY COMPENSATION TO ITS VICTIMS FAIR AND JUST in Court's estimation to restore them - in as much as possible- to the positions in which they were before their arbitrary detention including compensating them - as far as possible- for the immense physical and psychological loss and or damage they have resultantly suffered; iii. A DECLARATION that the Summit of the Heads of State and Government of the East African Community will be in violation of the Articles 3(3)(a)(b) and (f), 6(d), 7(2), 8(1)(c), 30 and 123(c) of the Treaty for the Establishment of the East African Community if it considers let alone takes the decision to admit THE DEMOCRATIC REPUBLIC OF CONGO UNTIL and

UNLESS THE DEMOCRATIC REPUBLIC OF CONGO facilitates - in coordination with the Ugandan Government or in such manner as Court may see fit and just - the safe evacuation from its territory and transportation to Uganda of SAMUEL WILLIAM MUGUMYA, STEPHEN MUGISHA, AGGREY KAMUKAMA, JOSEPH KAMUGISHA, NATHAN BRIGHT and 35 UNNAMED OTHERS citizens of the Republic of Reference No. 11 of 2020 Page 7 Uganda it continues to arbitrarily detain in its facilities - including NDOLO MILITARY PRISON; iv. A DECLARATION that the Summit of the Heads of State and Government of the East African Community will be in violation of the Articles 3(3)(a)(b) and (f), 6(d), 7(2), 8(1)(c), 30 and 123 (c) of the Treaty for the Establishment of the East African Community if it considers let alone takes the decision to admit THE DEMOCRATIC REPUBLIC OF CONGO as the 7th Member of the Community UNTIL and UNLESS THE

DEMOCRATIC REPUBLIC OF CONGO IMMEDIATELY and UNCONDITIONALLY takes tangible steps -as may be determined by this Court - to rehabilitate the MENTAL AND PHYSICAL HEALTH of the said SAMUEL WILLIAM MUGUMYA, STEPHEN MUGISHA, AGGREY KAMUKAMA, JOSEPH KAMUGISHA, NATHAN BRIGHT and 35 UNNAMED OTHERS - citizens of the Republic of Uganda whom THE DEMOCRATIC REPUBLIC OF CONGO has illegally/arbitrarily detained incommunicado and or continues to so do in its various detention facilities and prisons centres including the NDOLO MILITARY PRISON; v. A DECLARATION that the Summit of the Heads of State and Government of the East African Community will be in violation of the Articles 3(3)(a)(b) and (f), 6(d), 7(2), 8(1)(c), 30 and 123(c) of the Treaty for the Establishment of the East African Community if it Reference No. 11 of 2020 Page 8 considers let alone takes the decision to admit THE DEMOCRATIC REPUBLIC OF CONGO UNTIL and

UNLESS THE DEMOCRATIC REPUBLIC OF CONGO facilitates and allows access of lawyers - including the Applicant- and family members - in co-ordination with the Ugandan Government - or in such manner as Court may see fit and safe - to SAMUEL WILLIAM MUGUMYA, STEPHEN MUGISHA, AGGREY KAMUKAMA, JOSEPH KAMUGISHA, NATHAN BRIGHT and 35 UNNAMED OTHERS including meeting their professional fees, transportation and other costs to their respective areas of detention; vi. A DECLARATION that the Secretariat of the East African Community represented in this Reference by the 7th Respondent will be violation of Articles 3 (3)(a)(b) and (f), 6(d), 7(2), 8(1)(c), 30 and 123(c) of the Treaty for the Establishment of the East African Community if it proceeds to put or table before the Summit of the Heads of State and Government all and any matters as concern, relate or are ancillary to or take any action regarding the application by THE DEMOCRATIC REPUBLIC OF CONGO to join the East African Community UNLESS and UNTIL THE DEMOCRATIC REPUBLIC OF CONGO pays or meets its obligations towards the above-stated SAMUEL WILLIAM MUGUMYA, STEPHEN MUGISHA, AGGREY KAMUKAMA, JOSEPH KAMUGISHA, NATHAN BRIGHT AND 35 UNNAMED OTHERS as are set/stated above; Reference No. 11 of 2020 Page 9 vii. A DECLARATION that the Summit of the Heads of State and Government of the East African Community will be in violation of the Articles 3(3)(a)(b) and (f), 6(d), 7(2), 8(1)(c), 30 and 123(c) of the Treaty for the Establishment of the East African Community if it considers let alone takes the decision to admit THE

DEMOCRATIC REPUBLIC OF CONGO UNTIL AND

UNLESS THE DEMOCRATIC REPUBLIC OF CONGO FORMALLY, UNCONDITIONALLY AND UNEQUIVOCALLY apologises to SAMUEL WILLIAM MUGUMYA, STEPHEN MUGISHA, AGGREY KAMUKAMA, JOSEPH KAMUGISHA, NATHAN BRIGHT AND 35 UNNAMED OTHERS for violating their rights; viii. AN ORDER that THE DEMOCRATIC REPUBLIC OF CONGO should make written commitment and or representation that - upon being granted membership to the East African Community - it will not violate - going forward-the human and people's rights of its citizens and those of the other Partner States of the East African Community and that it will at all times abide by the fundamental and operative principles of the Treaty for the Establishment of the East African Community including adherence to the principles of democracy, the rule of law, accountability, transparency, social justice, equal opportunities, gender equality as well as recognition, promotion and protection of human and people's rights in accordance Reference No. 11 of2020 Page 10 with the provisions of the African Charter on Human and Peoples Rights and the EAC TREATY; ix. AN ORDER FOR PERMANENT INJUNCTION restraining the Summit of the Heads of State and Government from considering the application by and or taking the decision to admit THE DEMOCRATIC REPUBLIC OF CONGO as a Partner State of the East African Community UNLESS and UNTIL THE DEMOCRATIC REPUBLIC OF CONGO IMMEDIATELY

and UNCONDITIONALLY releases and pays and or meets its obligations towards the stated SAMUEL WILLIAM MUGUMYA, STEPHEN MUGISHA, AGGREY KAMUKAMA, JOSEPH KAMUGISHA, NATHAN BRIGHT AND 35 UNNAMED OTHERS as are set/stated above; x. AN ORDER for general damages to the Applicant flowing from the disturbance, inconvenience and anguish caused to him by the actions complained about in this Reference in terms as Court may determine; xi. AN ORDER awarding the Costs of the Reference to the Applicant; xii. An Order awarding interest at 6% per annum in 6.10 and 6.11 from the time of filing this Reference until payment in full as this Court orders; and xiii. ANY OTHER ORDERS OR REMEDIES that this Court may see fit to give. Reference No. 11 of 2020 Page 11 E. THE RESPONDENTS' CASE 23. The Respondents' case is encapsulated in their Replies to the Statement to the Reference. In a nutshell, all Respondents vehemently rebutted the claims made by the Applicant and opposed the issuance of any of the orders prayed for. i. The 1st Respondent's Case 24. The 1st Respondent's case is laid out in his Response to the Reference and in the Affidavit deponed on 8th July 2020 by Richard ADROLE from the Attorney General's Chambers. The 1st Respondent also filed written submissions filed in Court on 2nd October 2024.

25. The 1st Respondent raised an objection to the Reference based on a point of law contending that the instant Reference is overtaken by events and therefore stale, moot and academic as the current status is that the DRC was admitted to the Community by the Summit of the Heads of State in their 19th Extra-Ordinary General Meeting held on 29th March 2022, following the recommendations of the Council of Ministers which had informed it that the DRC had met all the criteria for admission as set in Treaty.

26. Similarly, the 1st Respondent contends that some of the allegedly illegally arrested and detained Ugandans, such as Sam Mugumya, were released by the DRC upon serving their respective sentences as rendered by the DRC's Courts.

27. It is further the 1st Respondent's stance that this Court has no jurisdiction to inquire into alleged Human Rights violation of a non- member of the EAC. Reference No. 11 of 2020 Page 12 28. In addition, the 1st Respondent draws the Court's attention that the Reference does not disclose a cause of action against the 1st Respondent.

29. Counsel for the 1st Respondent concluded his Submissions by praying the Court to dismiss the Reference with costs. ii. The 2nd Respondent's case 30. The 2 nd Respondent's case is contained In his Response to the Reference filed on 9th September 2021. The 2nd Respondent also filed written submission dated 3rd May 2024. 31 . The 2nd Respondent's case is not different from the other Respondents' Reply. It is the 2 nd Respondent's contention that this Court lacks jurisdiction to determine the Reference.

32. The 2 nd Respondent states that the facts pleaded by the Applicant do not disclose any of the matters contemplated under Article 30(1) of the Treaty.

33. In addition, the 2nd Respondent observes that: i. The Reference discloses no cause of action against the 2nd Respondent; ii. The matter before the Court is overtaken by events as the Democratic Republic of Congo has been admitted as a member State to the East African Community; iii. The law including the Treaty unequivocally reserves the functions of admission of new members to the East African Community to the Summit; Reference No.11 of2020 Page 13 iv. The issues raised are subject to bilateral negotiations; v. The issues relate to a State that was not a member State of the East African Community at the time of filing the reference, and vi. The issues raised herein are a preserve of municipal courts.

34. The 2 nd Respondent prayed that the present Reference be dismissed with costs. iii. The 3rd Respondent's case 35. The 3rd Respondent's case is contained in the Respondent's Response to the Reference, the Notice of Preliminary objections filed on 5th August 2021. The 3rd Respondent's case is equally set out in the Affidavit in Reply sworn and deponed by Mr Erigh RUMISHA, a State Attorney employed by the Office of the Solicitor General of the United Republic of Tanzania.

36. Additionally, the 3rd Respondent filed a submission in Reply to the Applicant's Submissions.

37. Like the other Respondents, the 3rd Respondent questions the · Jurisdiction of this Court. It is the 3rd Respondent's opinion that the powers of this Court are confined to the interpretation, application and compliance of the Treaty; that the process of consideration for admission of foreign countries into the EAC does not violate the Treaty.

38. Further, that the Treaty provides that all matters relating to admission to membership of the Community are the express mandate of the Partner States. Reference No.11 of2020 Page 14 39. In addition, the 3rd maintains that the Applicant's allegations are baseless since the alleged violations complained of are matters for domestic courts of the country and not this Court and that the Court is devoid of powers to grant what the Applicant sought against a non - party who is yet to become a Partner State to the EAC.

40. Lastly, the 3rd Respondent upholds that the instant Reference is overtaken by events and therefore invites the Court to dismiss it in its totality with costs. iv. The 4th Respondent's Case 41 . The 4 th Respondent's case is contained in his Response to the Statement of Reference dated 2nd September 2021. The 4th Respondent also filed written submissions in Court on 23 rd 2024.

42. The 4 th Respondent contends that he has no knowledge of the alleged arbitrary arrests and detentions of the said Samuel Mugumya, Stephen Mugisha, Aggrey Kamukama, Joseph Kamugisha, Nathan Bright and the 35 unnamed prisoners in the Democratic Republic of Congo as alleged by the Applicant in his Statement of Reference.

43. For the 4th Respondent, submits that matters subject to this Reference ought to be directly pursued by the Applicant with the responsible authorities in the DRC for expeditious trial and extradition of the mentioned victims to Uganda as appropriate under the extradition treaty.

44. It is further the 4 th Respondent's case that this Reference is overtaken by event and therefore this Honourable Court should dismiss it in its entirety with costs. Reference No. 11 of2020 Page 15 v. The 5th Respondent's Case 45. The 5th Respondent's case is contained in his Response to the Statement of Reference which is ostensibly similar to the other Respondents' position vis-a-vis the Statement of Reference. He also wrote written submissions to substantiate his position.

46. It is the 5th Respondent's view that the Reference does not disclose any cause of action against him as the Applicant does not disclose any act, regulation, directive, decision or action posed and challenged before this Court.

47. More fundamentally the 5th Respondent contends that the Reference is overtaken by events as the challenged admission process of DRC as a Partner State to the Community has been concluded by its admission as a Partner State of the Community.

48. Further, it is the 5th Respondent's assertion that this Court lacks jurisdiction to entertain the Reference as the alleged violations of the Treaty were committed by a non- member State of the Community at the time the Reference was lodged.

49. Therefore, the 5th Respondent prays that the Reference be dismissed with costs. vi. The 6th Respondent's Case 50. The 6 th Respondent contends that the Reference does not disclose any cause of action against the Republic of South Sudan as required under Article 30 (1) of the Treaty. Reference No. 11 of 2020 Page 16 51 . It is further his contention that this Honourable Court has no jurisdiction to entertain the Reference and the same should be dismissed with costs. vii. The 7th Respondent's Case 52. The 7th Respondent's case is contained in his Response to the Statement of Reference filed in Court on 7th December 2021 . The 7th Respondent also made written submissions filed in Court on 24th April 2024.

53. Reacting to the Applicant's statement of Reference, the 7th Respondent recalls that there is a criterion for admission of new members which together with the Treaty were consistently adhered to in processing the admission of the DRC.

54. The 7th Respondent avers that the requirement for the admission of new members into the Community were all followed and as such contests all allegation of breaching the Treaty.

55. It is the 7th Respondent's view that the matters relating to the suffering of certain citizens in the Democratic Republic of Congo such as Sam William Mugumya and others, are the subject of the Government of Uganda and the Democratic Republic of Congo and should not be litigated in this Court but handled through extradition arrangements.

56. Finally, the 7th Respondent's case is that the Reference discloses no cause of action against him as provided for under Article 30(1) of the Treaty and like other Respondents in the present Reference, the 7th Respondent prays for dismissal of the Reference with costs. Reference No. 11 of2020 Page 17 F. ISSUES FOR DETERMINATION 57. At the Scheduling Conference held on 28th February 2024, the following issues were agreed to be determined by the Court: i. Whether this Honourable Court has jurisdiction to entertain this matter; ii. Whether this Reference is overtaken by events and therefore stale, moot and academic; iii. Whether this Reference discloses any cause of action against the Respondents; iv. Whether the impugned actions of DRC violated the spirit and letter of the EAC Treaty; and v. Whether the parties are entitled to the reliefs sought.

58. At the hearing held on 4th October 2024, the Applicant prayed the Court to allow him to make a Rejoinder to some of Respondents' written Submissions that he was not served with.

59. With consent of the Parties and in respect of the cardinal principle of natural justice which includes the right to fair trial and fair hearing, the Court allowed the Applicant to file Submissions in rejoinder. The Court also directed that it will dispense with the highlights of written submissions and proceed to determine the matter on the basis of pleadings and written submissions on record. G. COURT'S DETERMINATION OF THE ISSUES ISSUE 1. Whether this Honourable Court has Jurisdiction to Entertain this Matter Reference No. 11 of2020 Page 18 And ISSUE 3: Whether this Reference discloses any cause of action against the Respondents 60. Although the two issues above stated are distinct, Parties submissions, particularly the Applicant combined arguments on them. Before we outline the rival submissions herein, we feel obligated to preface the same with the following. 61 . As was pointed out by this Court in the case of the Attorney General of the United Republic of Tanzania vs African Network for Animal Welfare, EACJ Appeal No. 3 of 2011. "Jurisdiction is a most, if not the most fundamental issue that the Court faces in any trial. It is the very foundation upon which the judicial edifice is constructed; the fountain from which springs the flow of the judicial process. Without Jurisdiction, a Court cannot even take the proverbial first Chinese step in its judicial journey to

hear and dispose of the case." 62. In the same vein, in the case of Alcon International Limited vs Standard Chartered Bank of Uganda and 2 others, EACJ Appeal No. 3 of 2013, the Appellate Division of this Court citing with approval the Kenyan Court of Appeal case of Owners of the Motor Vessels 'Lillian S' vs. Ca/tex Oil (Kenya) Limited {1989) KLR wherein Nyarangi, J .A. noted that: "Jurisdiction is everything. Without it, a Court has not power to make one step. Where a court has no Jurisdiction, there would be no basis for a continuation of the proceedings Refer ence No. 11 of 2020 Page 19 pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds that it is without jurisdiction." 63. Jurisdiction of this Court has been broken into three distinct heads. In Eric Kabalisa Makala vs Attorney General of The Republic of Rwanda, EACJ Reference No. 1 of 2017, this Court stated: " ... to succeed on a claim of lack of Jurisdiction in this Court, a party must demonstrate the absence of any of the three (3) types of jurisdiction: ratione personae/locus standi, ratione materiae and ratione temporis. Simply stated, these 3 jurisdictional elements respectively translate into jurisdiction on account of the person concerned, matter involved and time element." 64. Guided with the above stated position of the law, we will proceed to determine Issue 1. We will first outline the submissions made for and against the issue. i. The Applicant's Submissions 65. As earlier stated, the Applicant opted to submit on the 1st issue together with the 3rd issue on the ground that the two are interrelated.

66. In his written Submissions filed on 9th April 2024, the Applicant maintains that the Court is vested with jurisdiction to entertain the Reference and argues that the Court has already pronounced itself accordingly on this particular aspect in its determination of Application No. 11 of 2020 in respect of the current proceedings. Reference No. 11 of2020 Page 20 67. Regarding the issue that the Reference does not disclose any cause of action against the Respondents, the Applicant argues that the cause of action that the Reference is premised upon is the process, procedure and transparency that was adopted by Summit in considering DRC's application to join the Community as a 7th Member.

68. It is the Applicant's further submissions that when the Democratic Republic of Congo applied to join the Community as the 7th member, it literally submitted itself to be fully bound by the legal structures, frameworks and values of the Community as are set out in Articles 3, 6 and 7 of the Treaty, among others.

69. In his view, the Reference seeks to propound that the respective organs of the EAC Community, such as the Summit, did not comply with the fundamental and operational principles of the Community which include the rule of law and adherence to, promotion and protection of fundamental and universally accepted human rights set out, inter alia, in the African Charter of Human and Peoples Rights and international human rights instruments set out in the Reference. ii. The Respondents' Submissions on Issues No. 1 and 3 i. The 1st Respondent's Submissions 70. Counsel for the 1st Respondent submitted that the jurisdiction of the Court is derived from the provisions of Articles 23(1) and 27(1) of the Treaty on the interpretation and application of the Treaty.

71. Counsel for the 1st Respondent urged that the Summit under Article 3(2) of the Treaty is mandated to admit new members to the Community. That, these powers are exclusive to the Summit and cannot be delegated as provided for under Article 11(9)(c). Reference No. 11 of 2020 Page 21 72. For the 1st Respondent, the import of Article 3(2) and 3(3) of the Treaty is to designate as a function of the Summit, the admission of a foreign country into the Community. He contends that Article 4(3), (4), (5), (6) and (7) of the Protocol outlines the procedures to be adopted by the council of the Ministers and Summit in such admission.

73. It is the 1st Respondent's contention that there is no argument by the Applicant in the correct procedure to follow and neither has he led evidence to illustrate that an incorrect procedure was followed to admit the DRC as a member state.

74. To buttress his argument, the 1st Respondent rely on the case Patrick Ntege Walusimbi and 2 Others vs the Attorney General of Uganda and 5 Others, EACJ Reference No. 8 of 2013.

75. Regarding the Applicant's allegation that the issue of jurisdiction was wholly determined by this Court in Application No. 11 of 2020 arising from this Reference, the 1st Respondent submits that the same can be distinguished as in the latter matter the applicants challenged the jurisdiction of the court in as far as considering the granting of an interim relief namely an injunction against the Summit of the EAC from considering the admission of the DRC as a 7th Member of the EAC.

76. The 1st Respondent contends further that since the jurisdiction of this Court is conferred on it by Article 23(1) and 27 (1 ) of the interpretation and application of the Treaty, this Court has no jurisdiction to deal with allegations of violation of human rights that occurred when the DRC was not a member of the Community. Consequently, the 1st Respondent is of the view that the Court has no jurisdiction to inquire into these alleged violations. Reference No. 11 of 2020 Page 22 77. He therefore concluded his submissions by asserting that the nature and subject matter involving negotiations between the Partner States and the Democratic Republic of Congo are not amenable to the judicial process.

78. On whether the Reference discloses a cause of action against the Respondents, the 1st Respondent contended that since the mandate of admission of a foreign country is vested in the Summit under Article 11 (9)(c) of the Treaty and not on any one Partner State, there is no plausible cause of action against any one Partner State.

79. To strengthen his stand, the 1st Respondent cited the decision of this Court in the case of Prof. Peter Anyang' Nyong'o, EACJ Reference No. 1 of 2006 where it was stated that: "The Court is compelled to exercise its jurisdiction only where it is being called upon to determine the legality of any Act, regulation, directive, decision or action of a partner state or an institution of the community referred to it on the ground that it is unlawful, or it infringes on specific provisions of the Treaty." 80. He further relied on the decision of the Appellate Division of this Court in the case of Legal Brain Trust {IBT) Ltd, vs The Attorney General of The Republic of Uganda, EACJ Appeal No. 4 of 2012 where it held that under Article 30(1) of the Treaty, "a cause of action must be founded on the failure of a partner state or an institution of the community to apply the Treaty." 81. Finally, the 1st Respondent noted that in exercise of their mandate of admission of members, Partner States are to be guided by the criteria, Reference No. 11 of2020 Page 23 conditions and other considerations outlined under Article 3(3) and (4) of the Treaty.

82. To him, the Applicant carries the burden of proof that the Respondents have acted outside the said scope. ii. The 2nd Respondent's Submissions 83. The 2 nd Respondent's submission on the two issues does not differ from to those presented above by the 1st Respondent.

84. The 2nd Respondent contends that Article 30(1) of the Treaty mandates this Court to exercise jurisdiction only where it is being called upon to determine the legality of any act, regulation, directive, decision or action of a Partner State or of an institution of the Community on the grounds that it is unlawful, or it infringes specific provisions of the Treaty.

85. The 2nd Respondent maintains that the Applicant has not demonstrated the commission of any act by the Respondents to qualify for determination by this Court under Article 30 read together with Article 27 of the Treaty.

86. In addition , the 2 nd Respondent argues that the actions or illegality raised in the Reference refer to DRC, a country that was not a Partner State of the Community at the time of commencing these proceedings. Counsel for the 2 nd Respondent asserts also that DRC was not bound at that time by the principles and values outlined in the Treaty.

87. To reinforce his submissions, Counsel for the 2nd Respondent referred to the case of Legal Brain Trust (IBT) Ltd vs the Attorney General of the Republic of Uganda (supra). Reference No. 11 of 2020 Page 24 88. The 2 nd Respondent's position is that the issues raised in the Reference were subject to bilateral negotiations between the Republic of Uganda and the Democratic Republic of Congo. Furthermore, in the 2 nd Respondent's opinion, the allegations raised in the Reference by the Applicant are purely within the jurisdiction of domestic courts.

89. Finally, the 2nd Respondent contended that the power of admission of new members to the East African Community is a prerogative of the Summit by virtue of the Treaty. In this regard, the Applicant has not demonstrated any abuse of the process or procedure by the Summit. Hence the reference should be dismissed with costs. iii. The 3rd Respondent's Submissions 90. Like the 1st and 2nd Respondents, the 3rd Respondent rebuts the Applicant's submissions on the two issues. It is his assertion that this Court has no jurisdiction to entertain the matter and that the Applicant has no cause of action against the Respondents. 91 . In support of that position, the 3rd Respondent relied on Articles 27( 1) and 30(1) of the Treaty from which the jurisdiction ratione materiae is derived in cases where a legal or natural person resident in a Partner State challenges an act of a Partner State or an institution of the Community, on the grounds that such impugned act is unlawful or is an infringement of the provisions of the Treaty.

92. For the 3rd Respondent, the present Reference was improperly brought before this Court since, at the time of its filing, DRC was not a Partner State to EAC and, consequently, this Court has no jurisdiction to issue any order against a State that has not been made a party to the proceedings. Reference No. 11 of 2020 Page 25 93. Regarding the cause of action, the 3rd Respondent maintains that "If the core of this Reference now is to find justice for those Ugandans whom DRC had arbitrarily detained, then the Applicant has no cause of action against the rest of the Respondents." 94. Therefore, it is the 3rd Respondent's argument that since the alleged human rights violations have been levelled against DRC, the cause of action is against DRC who is not a party to this Reference. iv. The 4th Respondent's Submissions 95. On the issue of jurisdiction, Counsel for the 4 th Respondent submitted that the Court lacks jurisdiction to entertain this matter as "acts that triggered this Reference were acts by the DRC which was not by that time a member State of the EAC and thus the EACJ is not vested with powers to entertain matters of violations made by a none member Stare (sic) and, moreover, of human rights nature." 96. In addition, the 4 th Respondent states that the Applicant does not disclose any issues contemplated under Article 30 of the Treaty. v. The 5th Respondent's Submissions 97. Submitting on the issues, the 5th Respondent contends that this Court lacks jurisdiction to entertain the Reference as the alleged violations of the Treaty were committed by a non-member State of the Community at the time the Reference was lodged.

98. Further, Counsel for the 5th Respondent stressed that this Court does not have jurisdiction to entertain the matter as its competence is limited to matters relating to determination of the legality of any act, regulation, directive, decision or action of a Partner State or an institution of the Reference No. 11 of2020 Page 26 Community on the grounds that such act, regulation, directive, decision or action is unlawful or is an infringement of the provisions of the Treaty by virtue of Article 30(1 ).

99. On the other hand, the 5th Respondent avers that the Reference does not disclose any cause of action against him.

100. That, the Applicant did not show any role played by the said Respondent in the arbitrary detentions of Samuel Mugumya, Stephen Mugisha, Aggrey Kamukama, Joseph Kamugisha, Nathan Bright and 35 unnamed prisoners in the Democratic Republic of Congo. vi. The 6th Respondent's Submissions 101 . The Republic of South Sudan, the 6th Respondent herein, did not file written submission in support of its case. vii. The 7th Respondent's Submissions 102. Submitting on issue No. 1, the 7th Respondent maintained that the Applicant erroneously filed claims against violations of human rights committed by the DRC government in a Court of an organisation where it was not a member.

103. In that regard, the 7th Respondent contends that this Court does not have jurisdiction to entertain this matter.

104. However, the 7th Respondent appreciates the jurisdiction of the Court given the direction arising from the Court's ruling in the case of Adam Kyomuhendo vs Attorney General of Uganda and 6 others, EACJ, Application No. 11 of 2020 rendered on 5th April 2022. Reference No. 11 of2020 Page 27 105. As to the issue of the cause of action, the 7th Respondent avers that the Reference discloses no cause of action against him in respect of the admission process of the Democratic Republic of Congo as a Member of the East African Community. To support his argument in that respect, the 7th Respondent relied on the case of Anthony Leonard Msanze & Another vs Juliana Elias Msanze, Civil Appeal 76 of 2021, cited in Mtwara Civil Case No. 9 of 2022: Alpha Risk Management Ltd vs Stella Maris University College & St. Augustine University of Tanzania, where the Court of Appeal of Tanzania held: "The laid down relevant principle in causes of action in John M. Byombalirwa vs Agency Maritime Internationale; through this decision, we first pointed out that although the expression Cause of Action has not been defined under the Civil Procedure Code but that expression simply means essential facts, which a Plaintiff in a suit has to plead and later prove by evidence if he wants to succeed in the suit. Secondly, we laid down that for purposes of deciding whether or not a plaint discloses a cause of

action, courts should not go far, into written statements of defence or into replies to the written statements of defence. But they should discover a cause of action by looking only at the Plaint. Thirdly, we also said that where the Plaint does not disclose a cause of action, the remedy is not for the Court to dismiss the Plaint but to reject it." Reference No. 11 of 2020 Page 28 106. In light of the above, the 7th Respondent affirms that the Reference as well as the Applicant's written submissions are not explicit in disclosing any cause of action against the 7th Respondent. iii. The Applicant's Submissions in Rejoinder 107. In his submissions in rejoinder to the Respondents' Submissions, the Applicant argued simply that the question regarding jurisdiction was resolved with a certain emphatic finality in Adam Kyomuhendo vs Attorney General of Uganda and 6 Others, Miscellaneous Application No. 11 of 2020.

108. In his view, this Court must reaffirm its position that the Reference raises serious issues and establishes a cause of action. iv. The Court's Determination on Issues 1 and 3 109. We have considered the pleadings filed by the respective parties, the written Submissions made and the arguments made in Court on 28th February and 4th October 2024.

110. With regards to the issue of jurisdiction, it is worth noting that this Court has had an opportunity to pronounce itself on the question. In Application No. 11 of 2020 arising from the instant Reference. This Court stated: "In our view, the question whether the directives of the Summit on the said application as contained in the Communique of the 21 st Ordinary Summit amount to an infringement of Articles 3(2)-(4) as read with Articles 23 and 27(1) of the Treaty, is a matter within the jurisdiction of this Court. In Samuel Mukira Muhochi vs Attorney Reference No. 11 of 2020 Page 29 General of the Republic of Uganda EACJ Reference No. 5 of 2011 this Court stated as follows: "What matters, in our view, it is that the application seeks that this Court determines whether the actions and decisions of the Respondent were an infringement of specific Treaty provisions. It is the interpretation and application of these provisions in order to determine whether the impugned actions and decisions are infringements that provides jurisdiction of Court under Article 27 (1 )." 111 . Consequently, the Court held the same view in the Application and, accordingly, agreed with the Applicant on the issue of jurisdiction .

112. Therefore, having previously determined the issue of jurisdiction over the Application arising from this Reference, we cannot hold otherwise, specifically as it relates to jurisdiction ratione materiae.

113. Having so held, we now move to determine Issue 3 regarding whether the Reference raises a cause of action against the Respondents.

114. A cause of action is defined by the Black's Law Dictionary as "A group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in Court from another person." 115. More largely, the cause of action was defined in Ajayi vs Military Administrator, Ondo State (1997) 5 N.W.L.R. (Pt.504) where the Court held that: Reference No. 11 of2020 Page 30 "A cause of action consists of every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment. It is a bundle or aggregate of facts, which the law will recognize as giving the plaintiff a substantive right to make a claim against the relief or remedy being sought. The factual situation on which the plaintiff relies to support his claim must be recognized by law as giving rise to a substantive right capable of being claimed or enforced against the defendant. A cause of action is therefore determined by the statement of claim and the averments therein." 116. Similarly, this Court stated in the case of Prof. Peter Anyang' Nyong'o and Others vs Attorney General of the Republic of Kenya and Others, EACJ Reference No. 1 of 2006, that "A cause of action is a set of facts or circumstances that in law give rise to a right to sue or to take out an action in court for redress or remedy." 117. Thus, as stated in Prof. Peter

Anyang' Nyongo (supra) "if a plaint shows that the plaintiff enjoyed a right, that the right has been violated and that the defendant is liable, then, in my opinion, a cause of action has been disclosed (... )" 118. In this Reference, the Applicant alleges violation of the Treaty by the Respondents. The Application seeks that this Court determines whether the actions and decisions of the Respondents were an infringement of specific Treaty provisions.

119. In the case of Mbugua Mureithi Wa Nyambura vsThe Attorney General of the Republic of Uganda & The Attorney General of the Republic of Kenya, EACJ Reference No. 11 of 2011 , the Court noted: Reference No. 11 of 2020 Page 31 "Indeed, it has been established by this Court that an alleged infringement of the provisions of the Treaty would give rise through interpretation of the Treaty under Article 27(1) to a cause of action ( ... ) Therefore, since he was enjoying his rights which were allegedly violated by the Respondents, the requirements to support or sustain a cause of action were enough to enable him to file a reference." 120. Further, this Court in Patrick Walusumbi and Others vs Attorney General of the Republic of Uganda and Others, EACJ Reference No. 8 of 2013 had the following to say: "For avoidance of doubt, for a cause of action to be established under Article 30(1) of the Treaty, one only need to show that he is a resident of a Partner State; he is complaining about the legality of any Act, regulation, directive, decision or action of a Partner State or an institution of the Community and lastly, that the actions allegedly constitute a violation of the Treaty." 121. Therefore, relying on the above authorities, we hold that the Applicant, by alleging the infringement of a number of provisions of the Treaty; including, Articles 3(2)-(4), 6(d),7(1)(a) and (2),

8(1)(a) and (c), 23, 27(1) and 30, has disclosed a cause of action against the Respondents. ISSUE 2: Whether this Reference is Overtaken by Events and therefore, Stale, Moot and Academic Reference No. 11 of2020 Page 32 122. In this Reference, the Applicant and Respondents have divergent views on the question whether the Reference is overtaken by events. a) The Applicant's Case 123. The Applicant states that the Reference is not overtaken by events. In his view, even if DRC was admitted to the Community as the 7th member during the pendency of these proceedings, its admission into the Community was not the only issue that was the subject of this Reference.

124. Succinctly, the Applicant bases his argument on the fact that the Reference raises issues of continuing human rights violations.

125. For him, the violations the subject of the Reference began to be perpetrated by the DRC in 2014 long before its application to join the Community. The Applicant states that even after formally applying to join the Community through the relevant EAC organs, the impugned violations continue to be perpetuated by the DRC against Samuel William Mugumya and others.

126. It is the Applicant's further argument that the impugned actions did not only start in 2014 long before the DRC applied to join the Community but continued to be perpetuated during the process for consideration of its application to join the Community and continue to be perpetrated to date even after its subsequent admission to the Community.

127. Therefore, the Applicant submits that there is nothing moot, stale or academic about the demonstrated and proven suffering of citizens of a Partner State of the Community by a Partner State. Reference No. 11 of2020 Page 33 b) The Respondents' Submissions 128. Submitting on the issue, all the Respondents contend that the Reference filed by the Applicant is overtaken by events and therefore stale, moot and academic.

129. In his Submissions, the 1st Respondent's counsel stated that, subsequent to the filing of the Reference, the Summit proceeded to consider the application of the DRC to join the Community culminating to its admission as the 7th Member.

130. The 1st Respondent was of the view that since DRC has already been admitted as a Member of the East African Community, the Reference is overtaken by events, moot and academic as there is no longer any live dispute for this Court to adjudicate on.

131. In support of his stand, Counsel of the 1st Respondent referred to the decision in Legal Brain Trust Ltd v Attorney General (supra).

132. The 1st Respondent concluded his Submissions on the issue that the Reference is clearly lifeless, academic, speculative and hypothetical and therefore prays the Court to dismiss it with costs.

133. On his party, Counsel for the 2 nd Respondent argued, in submissions, that since the cause of action of the Reference was for DRC not to be admitted as a 7th member of the Community for allegedly violating the human rights of the Republic of Uganda nationals, it is therefore not tenable to challenge the admission of a country that is now a member of the said Community.

134. The 3rd Respondent, on his part, contends that since DRC has already been admitted as a member of EAC, this Reference has been Reference No. 11 of 2020 Page 34 overtaken by events and is therefore moot. Hence, entertaining it would be a matter of mere academic exercise.

135. To reinforce his Submissions, Counsel for the 3rd Respondent relied on the cases of Human Rights Awareness & Promotion Forum (HRAPF) vs The Attorney General of Uganda, EACJ Reference No. 6 of 2014 and Legal Brains Trust {LBT) Ltd vs Attorney General of the Republic of Uganda (supra ).

136. Thus, the 3rd Respondent urges this Court to decline to determine the matter as it is overtaken by events. He urged the Court to dismiss the Reference with costs.

137. In the alternative, the 3rd Respondent's contended that the determination of the Reference will be a mere academic exercise, since a number of declaratory orders are sought against DRC that was not a party to EAC at the time of filing this Reference.

138. In addition, it is the 3rd Respondent's submissions that if the Court proceeds to determine this matter in respect of human rights violation by DRC, which is not enjoined as party, it will do so in violation of the right to be heard which is a fundamental right and one of the principles of natural justice.

139. Similarly, the 4 th Respondent opposed the Applicant's submissions and upholds that the Reference is overtaken by events and therefore stale, moot and academic, as DRC was already admitted to the EAC by the Summit of the Heads of States of the EAC in their 19th Extraordinary Meeting that took place on 29th March 2022.

140. The 4 th Respondent avers, therefore, that the Reference is meaningless since it is challenging the admission of the DRC which is Refer ence No. 11 of 2020 Page 35 already a member State and urges this Cour to dismiss the Reference with costs. 141 . On his part, the 5th Respondent rebuts the Applicant's submission as the Reference challenges the admission of the Democratic Republic of Congo as the 7th Partner State of the East African Community. The 5th Respondent submits that the instant Reference has already been overtaken by the events and therefore stale, moot and academic since the Democratic Republic of Congo was admitted by the Summit of the Heads of States held on 29th March 2022.

142. In addition, it is the 5th Respondent's argument that the Reference as it is now is a pure abuse of the process of this Court since the Applicant refused to amend his Reference and join DRC as a party to the proceedings.

143. To strengthen his submissions, the 5th Respondent cited some decisions of this Court; namely Alcon International Ltd vs The Standard Chartered Bank of Uganda and 2 others, EACJ Reference No. 6 of 2010, Attorney General of the United Republic of Tanzania vs African Network for Animal Welfare (supra) and Hon. Dr Margaret Zziwa vs The Secretary General of the East African Community, EAC Appeal No. 2 of 2017.

144. The 5th Respondent urged this Court to dismiss the Reference with costs.

145. Counsel to the Community, submitting on the issue whether the Reference is overtaken by events and therefore moot, submitted that the matter has been overtaken by events and is now moot. Reference No. 11 of2020 Page 36 146. It is the 7th Respondent's argument that in July 2022, DRC deposited her instruments of ratification of the Treaty of Accession to the Community and became a full member with all rights and obligations.

147. For the 7th Respondent, it is not therefore tenable to challenge the admission of a country that is now a full member of the East African Community.

148. Therefore, the 7th Respondent pleads that considering that DRC was admitted as a full member of the Community, the instant Reference is moot. c) The Applicant's Submissions in Reioinder 149. In his submission in rejoinder, the Applicant reiterated his earlier submissions on this point. In summary, the Applicant maintains that the Reference is not moot; that there is a live dispute that the Reference calls upon this Court to resolve.

150. He accordingly prays that this Court finds that DRC's actions violate its obligations under relevant provisions of the Treaty. d) Court's Determination of Issue 2 151. Having considered the rival submissions of the Parties on the aforesaid issue, we determine it as follows: 152. It is apparent that the Applicant confides his arguments on the issue on the notion of 'continuing human rights violations'. This is his ground for maintaining that the Reference is not moot.

153. In numerous past decisions, this Court has rejected the concept of legal continuing violations (see among others: The Attorney General Reference No. 11 of 2020 Page 37 of the Republic of Kenya vs Independent Medical legal Unit, EACJ Appeal No.1 of 2011; The Attorney General of the Republic of Uganda & Attorney General of the Republic of Kenya (as Interested Party) vs Omar Awadh and 6 Others. EACJ Appeal No. 2 of 2012: Malcom Lukwiya vs The Attorney General of the Republic of Uganda and the Attorney General of the Republic of Kenya (supra).

154. By relying on the principle of continuing human rights violation, the Applicant seems to have mis interpreted the Court's mandate to deal with the matter. We do agree with Counsel for the Respondents' position as supported by the authorities cited above that such arguments lack legs to stand on.

155. As to whether or not the Reference is overtaken by events and therefore stale, moot and academic, it is worthy to recall that the Court is generally required to decide on the matter when the orders or declarations to be granted are live, not when they appear to be academic and of no practical value.

156. In the case of Alcon International Ltd vs The Standard Chartered Bank of Uganda and others (supra), this Court stated: "It must be said by this Court that the doctrine of mootness or academic adventure by the Courts of Justice is well known. The raison d'etre of Courts of Justice is to give binding decisions on live disputes submitted to them by the parties or, where applicable, to render advisory opinions in limited cases where their constitutive Constitutions, Statutes or Treaties so provide. If there is no live dispute for resolution ... or the Court is not exercising any advisory opinion jurisdiction it may have, Reference No. 11 of 2020 Page 38 a Court of Justice would be wasting the public resources of time, personnel and money by engaging in a futile and vain exposition of the law." 157. The Appellate division of this Court, in the above Appeal, cited with approval the holding in Borowski vs the Attorney General of Canada [19891 SCR 342 where the Supreme Court of Canada expressed itself in the same way as follows: "The doctrine of mootness is an aspect of a general policy practice that a Court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the Court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of

the Court will have no practical effect on such rights, the Court declines to decide the case. This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the Court is called upon to reach a decision. Accordingly, if, subsequent to the initiation of the action or proceeding, events occur which affect the rights of the parties, the case is said to be moot. The general policy or practice is enforced in most cases unless the Court exercises its discretion to depart from its Policy or Practice." 158. Similarly, in the case of the Attorney General of United Republic of Tanzania vs African Network for Animal Welfare, EACJ Appeal No. 3 of 2014, the Court held that: "In the above cases, the message is strong, comprehensive, and clear: Reference No. 11 of 2020 Page 39 i. The function of courts is to contribute to justice in concrete disputes, not to give opinions on general hypothetical questions; ii. Jurisdiction is conferred on courts not to deal with hypothetical, academic or political questions; iii. The court must not deal in matters that are clearly lifeless, spent, academic, speculative or hypothetical; and iv. Judicial power is the right to determine actual controversies arising between adverse litigants." 159. In our view, since the Reference challenges the admission of DRC into the Community as a 7th member, it is patently

obvious that the matter is now moot and hypothetical after DRC acceded to the EAC Treaty on 8th April 2022 and became a full member on 11 th July 2022 after it deposited its instruments of ratification. ISSUE 4: Whether the Impugned Actions of DRC Violated the Spirit and Letter of the EAC Treaty a) The Applicant's Submissions 160. On the issue whether the impugned actions of DRC violated the spirit and letter of the EAC Treaty, the Applicant reiterates his earlier Submissions above.

161. The Applicant submits that the actions impugned were committed and continue to be perpetrated by the DRC's agents even after its admission to the Community. Reference No. 11 of2020 Page 40 162. According to the Applicant, the specific provisions that DRC's actions violate are Articles 6(d), 7(2), 8(1 )(c), 30 and 123(c) of the EAC Treaty to the extent that they undergird respect for and protection of human rights. b) The Respondents' Submissions 163. In their Submissions, all the Respondents rebut the Applicant's Submissions, contending that the impugned actions occurred before the DRC was admitted as a member of the Community.

164. In answering this issue, Counsel for the 1st Respondent argued that this Court has no jurisdiction to inquire into the alleged violations as they occurred when the DRC had not joined the Community. For this reason, the 1st Respondent's stance is that DRC cannot be subject to the provisions of the Treaty for the alleged actions committed before her admission as Partner State to the East African Community.

165. In addition, the 1st Respondent submits that the Applicant has not provided any evidence to show that DRC has violated any provisions of the Treaty since it was admitted into the Community.

166. The above view is shared by Counsel for the 2 nd and 3rd Respondents. The 3rd Respondent's Counsel added that since DRC has not been made a party to the Reference, the Court does not have material facts from both the Applicant and DRC that will form a basis of its decision. That, to determine the matter without giving an opportunity to DRC to present her case, will be in violation of the principle of natural justice namely the right to be heard before any decision is made.

167. The 4 th Respondent also reiterated what was submitted by the other Respondents. Reference No. 11 of 2020 Page 41 168. On his part, the 5th Respondent submitted that it is only an act, regulation, directive, decision or action of a Partner State that are actionable before this Court for determination of whether they violate the Treaty. That, consequently, the challenged actions of DRC do not fall under the ambit of the provisions of the Treaty as it was not yet a member State to the Community at the time the Reference was lodged.

169. Counsel for the 7th Respondent does not deviate from the rest of the Respondents. He just added a dimension that, considering that the DRC was not a member of the Community until recently, the Applicant is at liberty to proceed against the DRC following her admission. c) The Applicant's Submissions in Rejoinder 170. In his Rejoinder to the Respondents' written Submissions, the Applicant focuses on the 3rd and 7th Respondents' Submissions and reiterated his earlier Submissions on the issue.

171. Regarding the submission that since DRC is not part of these proceedings, the Applicant states that the Court is constrained not to make adverse orders against it. It is the Applicant's position that the duty to join proceedings by a third party such as DRC such as not to be prejudiced by the outcome of proceedings was not on him.

172. On the submission that DRC is not part of these proceedings, the Applicant maintains that the party that will be prejudiced ought to seek leave to intervene and move the Court to clarify on matters that directly affect it in proceedings before this Court. Reference No. 11 of 2020 Page 42 173. For the Applicant, it is therefore disingenuous for the Respondents to argue that the Court cannot adjudicate this Reference in the absence of the DRC. d) The Court's determination on Issue 4 174. We have carefully considered the rival submissions of the Counsel in support of their respective stances.

175. In our considered view, it is not controverted that DRC at the time of commencing the instant Reference was not a member of the Community. It was, therefore, not subject to the Treaty provisions.

176. To determine the issue, we have to rely on the authorities of this Court on similar matters and international law on treaties.

177. In Patrick Walusumbi and others vs Attorney General of the Republic of Uganda and Others (supra), this Court stated as follows: " .. .we agree with the Respondents that the Republic of South Sudan is not a member of the East African Community and is therefore not bound by the Treaty." 178. In the same line, Article 26 of Vienna Convention on the Law of Treaties of 1969, embodies the principle of pacta sunt servanda which applies in the instant matter.

179. Indeed, the wording in Article 26 of the Vienna Convention thus, "Every treaty in force is binding upon the parties to it and must be performed by them in good faith" creates an obligation only on the Party to the Treaty. The same Convention defines a 'party' in Article Reference No. 11 of 2020 Page 43 2(1 )(g) as "a State which has consented to be bound by the treaty and for which the treaty is in force. " 180. Consequently, as DRC was not a member of the East African Community at the time this Reference was instituted, she cannot be bound by the provisions of the EAC Treaty on account of international law principles and, therefore, her alleged human right violations committed before she joined the Community do not fall under the Treaty. 181 . Lastly, it is our considered view that the Applicant if he still wants DRC be liable for the purported violations of the Treaty, it behoves him to raise a new cause of action and sue her as a Partner State to the Community. ISSUE 5: Whether the Parties are Entitled to the Reliefs Sought 182. Having decided the preceding issues on substance in the negative, the prayers sought by the Applicants are not tenable.

183. As to costs, Rule 127 (1 ) of the Rules provides as follows: "Costs in any proceedings shall follow the event, unless the Court shall for good reasons otherwise order." Reference No. 11 of 2020 Page 44 Dated, Signed and Delivered at Arusha this 29th Day of November 2024. Hon. Justice Yohane B. Masara

PRINCIPAL JUDGE Y-rzt -------~,f._______ Hon. Justice Richard Muhumuza 1/ Richard Wabwire Wejuli DGE ---------<: ~ -------------- Hon. Justice Dr Leonard Gacuko

JUDGE Hon. Justice Kayembe Ignace Rene Kasanda

JUDGE Reference No. 11 of 2020 Page 45