[2024] EACJ 13


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)*

# **APPLICATION NO. 47 OF 2022**

(Arising from Reference No. 39 of 2022)

## THE INDEPENDENT ELECTORAL COMMISSION OF KENYA ....................................

# **VERSUS**

MALE H. MABIRIZI K. KIWANUKA ....................................

THE ATTORNEY GENERAL OF THE REPUBLIC OF KENYA ....................................

28^TH NOVEMBER, 2024

### **RULING OF THE COURT**

### **A. INTRODUCTION**

- 1. This Application was filed on 19th December 2022 by the Independent Electoral and Boundaries Commission of Kenya, the proposed Intervener ("IEBCK" or "the Commission"). - 2. The Proposed Intervener seeks leave to be joined in **Reference No 39 of 2022** pending before this Court ("the Court") as an Intervener pursuant to Article 40 of the Treaty for the Establishment of the East African Community ("the Treaty") and Rule 59 of the East African Court of Justice Rules of the Court, 2019 ("the Rules"). - 3. The Applicant and proposed Intervener, the Independent Electoral and Boundaries Commission of Kenya, is an independent constitutional body established under Articles 88 and 248(2)(c) of the Constitution of Kenya, 2010. - 4. The Applicant's core mandate includes conducting and supervising referenda and elections to elective offices established by the Constitution. - 5. The 1st Respondent is a Ugandan citizen and a lawyer residing in Kampala, Uganda. - 6. The 2nd Respondent is the Attorney General of the Republic of Kenya, sued in his capacity as the Principal Legal Advisor to the Government of Kenya.

Application No. 47 of2022 Page 1

### **B. REPRESENTATION**

- 7. The Applicant was represented by Advocates George Murugu, Victor Liech, Joy Anami and Ronald Wahisi; the 1st Respondent selfrepresented while the 2nd Respondent was represented by Advocates Eric Gumbo, Nura Abdikarim Hassan and Elias Ouma. - 8. The parties filed written submissions, which were adopted and highlighted on 25th September 2024.

#### **C. BACKGROUND**

- 9. On August 9, 2022, presidential elections were held in the Republic of Kenya. The results of the elections, conducted by the Commission, were declared on August 15, 2022. - 10. On 22nd August 2022, Mr. Male H. Mabirizi K. Kiwanuka, filed a Statement of Reference in this Court against the Attorney General of the Republic of Kenya, alleging that the Chairperson of the Commission, Mr Wafula Chebukati, violated multiple legal provisions in the process of declaring the election results. - 11. In the Reference, the Applicant seeks various reliefs against the Respondent, primarily challenging the processes, actions, and decisions of the Chairperson of the Commission on August 15, 2022. The Applicant contends that these actions were unlawful and in contravention of Articles 6(d) and 7(2) of the Treaty as well as the Common Market Protocol. Specifically, the Applicant seeks a declaration that the processes and decisions in question violated the principles of democracy and good governance as prescribed under the Treaty. The Applicant further prays for an order annulling the

Application No . 4 7 of 2022 Page 2

presidential election results declared on August 15, 2022, and for a permanent injunction restraining any Kenyan state agencies or bodies from recognizing the said results.

12. Additionally, the Applicant seeks general, exemplary, and aggravated damages, along with costs of the case and interest at a rate of 6% per annum on the awarded damages and costs. Central to the Applicant's claim is the assertion that the Chairperson acted unilaterally in declaring the results, excluding the majority of the Commission members from the decision-making process. This, the Applicant alleges, occurred in an environment characterized by confusion and uncertainty, and without the requisite signatures of the majority of the Commission members. The Applicant contends that such actions undermined the democratic principles and good governance norms enshrined in the Treaty and other applicable laws.

### **D. GROUNDS AND BASIS FOR INTERVENTION**

- 13. The grounds and basis of the Application are extensively stated in the Application and in the Affidavit in Support of the Application, deponed by Chrispine Owiye, but briefly are that: - **i. The Respondent, as the Attorney General, was not involved in the conduct of the elections and is not privy to the specific planning or logistical decisions of the Commission. As such, the Respondent cannot adequately address the allegations raised in the Reference;**

- ii. It has a direct and immediate interest in the issues raised in the Reference; - iii. Its intervention will not enlarge the issues but will aid in the effective adjudication of the matter. Granting the Commission leave to intervene will enable the Court to adjudicate and settle all the issues effectively and completely; - iv. Its actions and decisions are governed by Articles 88 and 249(2) of the Constitution of Kenya, 2010, which mandate its independence and subject it only to the Constitution and the law; - v. The Commission contends that it conducted the August 9, 2022, presidential elections in compliance with its constitutional and statutory mandate; - vi. The allegations against the Commission's Chairperson pertain directly to its statutory and constitutional functions; - vii. The Commission's intervention is necessary to provide clarity on the contested actions and ensure the integrity of the proceedings; and - viii. The Commission's intervention is limited to addressing the orders sought in the Reference specifically those implicating its mandate and actions. Its participation will not prejudice the existing parties or expand the scope of the issues before the Court. It

Application No. 4 7 of 2022 Page4

**undertakes to accept the proceedings as they stand at the time of intervention and abide by the Court's decision.**

- 14. On 3rd September 2024, Mr Male Mabirizi, filed an Affidavit in Reply, opposing the Intervener Application. - 15. In his Reply, Mr Mabirizi, refuted allegations made in the supporting affidavit, specifically disputing claims that described him as female and suggestions that he was challenging the decision of the Supreme Court of Kenya. He characterized these assertions as misplaced and erroneous. Addressing paragraphs 12 to 19 of the supporting affidavit, Mr Mabirizi, contended that the Intervener, being part of the Government of Kenya, lacks the requisite legal capacity to directly approach the East African Court of Justice. He argued that such representation could only lawfully be undertaken by the Attorney General of Kenya, who is cited as the 2nd Respondent in the matter. - 16. Mr Mabirizi further maintained that, under international law, the actions of the Intervener are attributable to the 2nd Respondent. He asserted that, despite the constitutional and statutory independence accorded to the Intervener, its interests and actions are intrinsically aligned with those of the 2nd Respondent, rendering them effectively the same entity. Finally, Mr Mabirizi argued that the Application for intervention constituted an abuse of the Court's process, asserting that its true intent was to provide the 2nd Respondent with multiple avenues to oppose the substantive Reference. On this basis, the 1st Respondent urged the Court to dismiss the Application.

17. The 2nd Respondent did not file an Affidavit in reply but filed submissions that supported admission of the IEBCK as an Intervener.

### **E. PRELIMINARY OBJECTION**

18. When the Application came up for hearing, the 1st Respondent, Male Mabirizi, raised a preliminary point of law challenging the Court's jurisdiction. Given the foundational principle in this Court's jurisprudence to address jurisdictional issues as a priority once raised, we shall address the matter at the outset.

### **a. The 151 Respondent's Submissions**

- 19. Mr. Mabirizi challenged the legal standing of the IEBCK to participate as an Intervener in this Court. That this Court has no jurisdiction over the IEBCK, a constitutional commission established under Article 88 of the Constitution of Kenya. - 20. He contended that this Court lacks jurisdiction to entertain the Applicant's Application to intervene, relying on the provisions of Article 40 of the Treaty. He argued that Article 40 restricts intervention to a Partner State, the Secretary General or a resident of a Partner State, provided such an entity is not already a party to the proceedings. - 21. According to the 1st Respondent, the Applicant, as a subset of the Republic of Kenya, does not qualify as a distinct entity under this provision, given that the Government of Kenya is already represented in the proceedings by the 2nd Respondent.

- 22. In addressing the legal interpretation of the Treaty, the 1s^t Responder:it emphasized the principle of harmonious interpretation of treaties, as outlined in the Vienna Convention on the Law of Treaties. He drew the Court's attention to its decision in **Inspectorate of Government vs Geoffrey Kazinda, EACJ Application No. 23 of 2022,** where it was held that entities without international legal personality cannot independently be held responsible on account of a Partner State before this Court. - 23. Mr Mabirizi further warned of the potential for abuse of Court processes, asserting that allowing the Applicant to intervene would create duplicity and afford the 2nd Respondent an unfair advantage, thereby undermining the framework and objectives of Article 40 of the Treaty. - 24. Additionally, the 1st Respondent highlighted the potential financial and legal liabilities arising from intervention, citing precedents such as **Attorney General of Burundi vs Secretary General of EAC & Hon. Fred Mukasa Mbidde, EACJ Appeal No. 02 of 2019** to underscore the necessity of strict adherence to the requirements of Article 40 of the Treaty. He further argued that, while the Applicant may claim constitutional independence within Kenya, such a status does not extend to proceedings under the Treaty. That Article 8(4) of the Treaty precludes reliance on domestic laws for the interpretation or Application of the Treaty's provisions, reinforcing the 1st Respondent's assertion that the Applicant lacks the capacity to intervene in the current matter.

### **b. The Applicant's Submissions**

- 25. In its submissions, the Applicant opposed the preliminary objection and asserted its qualification as a resident of the Republic of Kenya, a Partner State under the Treaty. The Applicant referred to Articles 88, 94 and 248 of the Constitution of Kenya, as well as statutory recognition under the Independent Electoral and Boundaries Commission Act and the Elections Act, to affirm its distinct legal personality and mandate, distinguishing it from other governmental entities. - 26. The Applicant contended that its independence as a constitutional commission enables it to function autonomously and separately from the 2nd Respondent. Counsel emphasized that this autonomy precludes any inference that the Applicant's legal status is subsumed under the representation of the 2nd Respondent and allows it to engage directly with the Court, thereby satisfying the jurisdictional requirements for intervention. - 27. The Applicant highlighted its direct involvement in the conduct of the elections, central to the issues raised in the Reference, as establishing its substantial interest in the matter. This role, it argued, provides a sufficient basis for its participation and justifies its application to intervene. The Applicant maintained that it had fulfilled the requirements for intervention as outlined under Article 40 of the Treaty. ## **c. The 2nd Respondent's Submissions**

- 28. Mr Gumbo, Counsel for the 2nd Respondent, associated himself with submissions by Mr Wahisi for the Applicant, arguing that the objection mischaracterizes the nature of jurisdiction. According to Mr. Gumbo, the process of determining the admissibility of an Intervener falls squarely within the Court's procedural mandate and does not amount to a jurisdictional question under the Treaty. He further argued that Article 30 of the Treaty, which provides for References by legal and natural persons, is not determinative in this context, as the IEBCK qualifies as a legal person by virtue of being a body corporate under Kenyan law. - 29. In rebuttal, Mr. Mabirizi contended that the IEBCK, being an organ established under Kenyan municipal law, does not meet the criteria set out under Articles 28, 29, and 30 of the Treaty. He argued that these Articles distinguish between Partner States, the Secretary General, and natural or legal persons, and that the framers of the Treaty did not intend for state-established bodies like the IEBCK to invoke Article 30 to gain access to this Court. He relied on previous decisions of the Court, including **Central Bank of Kenya vs Pontrilas Investment & Attorney General of Kenya, EACJ Application No. 6 of 2022,** to support his position that the IEBCK lacks standing under international law.

## d. **The Court's Determination**

30. The import of the objection raised by the 1st Respondent is to determine whether the IEBCK qualifies as a legal person with standing to intervene under the Treaty and consequently, whether the objection raised by Mr. Mabirizi constitutes a challenge to the jurisdiction of this Court.

- 31. In his submissions, the 1st Respondent sought to rely on this Court's decision in **Inspector General of Government vs Geoffrey Kazinda** (supra) to brace his argument that the prerequisites for eligibility to be admitted as Intervener under Article 40 in proceedings under the Treaty are the same as stipulated under Articles 28, 29 and 30 of the Treaty. That for a person to come to this Court or to be sued in this Court, he must be a Partner State and organ or a resident and that similarly one seeking to be admitted as an Intervener would have to answer to the same criteria. - 32. In our opinion, the 1st Respondent's argument in that regard is misconceived. - 33. The provisions of Articles 27, 28, 29 and 30 of the Treaty collectively outline the jurisdiction of the Court and establish eligibility and the avenues through which various actors may invoke the Court's jurisdiction. These provisions outline who may litigate before the Court. - 34. Article 28 allows Partner States to directly seek judicial resolution of disputes while Article 29 empowers the Secretary General to refer matters to the Court and Article 30 enables legal and natural persons residing in a Partner State to challenge the legality of acts, regulations, directives, decisions, or actions of a Partner State or Community institution before the Court.

Application No. 4 7 of 2022 Page 10

- 35. In the **Inspectorate of Government case** (supra) which the 1st Respondent cited to support his case, the Inspector General of Government sought to be joined as a co-Respondent in the proceedings. The Application was denied. The Court held that the Inspectorate of Government could not be held responsible for the Government of Uganda's acts and omissions under the Treaty. That the actions of the Inspectorate of Government could only be challenged in this Court through the Attorney General. - 36. The instant case is distinguishable from that of **Inspectorate of Government case** (supra); the facts are dissimilar and the two were brought under different provisions of the Treaty. The remedies sought were dissimilar as well; while the **Inspectorate of Government case** (supra) sought to be joined as co-respondent/party to the proceedings, in the instant case, the Applicant seeks to be admitted as an Intervener. - 37. The question of whether the IEBCK can be an Intervener for the state under the Treaty requires a careful examination of Articles 30 and 40, as well as the distinction between a Reference and an intervention Application. - 38. Article 30 provides that a legal or natural person who is a resident of a Partner State may file a Reference before the East African Court of Justice to challenge the legality of an Act, regulation, directive, decision, or action of a Partner State or an institution of the Community. This provision governs the initiation of substantive actions to question compliance with the Treaty. It also prescribes who can invoke the jurisdiction of the Court in a Reference and against

Application No. 47 of 2022 Page 11

whom such action can be taken. The scope of Article 30 is specific to the direct challenge of acts or omissions and does not extend to procedural matters like intervention.

- 39. Article 40, in contrast, provides for intervention, permitting a Partner State, the Secretary General, or a resident of a Partner State who is not a party to an ongoing case to seek leave of the Court to intervene. - 40. Intervention is a distinct procedural mechanism allowing an entity to join ongoing proceedings to support one of the parties or to protect its own interests. It is not a Reference and is not governed by the criteria for bringing or defending a Reference under Article 30. - 41. The reliance by the 1st Respondent on the decision in **Inspector General of Government vs Geoffrey Kazinda** (supra) attempts to combine the requirements for a Reference under Articles 28, 29 and 30 with the procedural prerequisites for intervention under Article 40. In the **Inspectorate of Government case** (supra), the Court denied the Inspectorate of Government's Application to be joined as a corespondent, holding that it lacked international personality and that its actions could only be attributed to the Government of Uganda, which should be represented by the Attorney General. - 42. However, the Application in that case sought to add the Inspectorate as a co-respondent, not as an Intervener under Article 40. The remedies sought and the procedural context were materially different. - 43. In the present case, the Applicant seeks to be admitted as an Intervener under Article 40, not as a party or co-respondent. The distinction between a Reference and an intervention Application is

Application No. 47 of2022 Page 12

critical. Intervention does not constitute an action against a Partner State or institution of the Community under Article 30, but rather a request to participate in ongoing proceedings to protect an interest or contribute to the resolution of the case.

- 44. Articles 27, 28, 29 and 30 govern the substantive jurisdiction of the Court and the categories of persons or entities that can initiate or respond to References. Article 40, on the other hand, establishes the criteria for procedural intervention, which is a separate category of participation. - 45. Thus, the argument advanced by the 1st Respondent misconstrues the nature of intervention under Article 40 and conflates it with the substantive requirements for initiating a Reference under Article 30. - 46. A State organ or institution may, in principle, seek to intervene on behalf of the State under Article 40, provided it can demonstrate a legitimate interest in the proceedings and meets the procedural requirements for intervention. This does not equate to bringing a substantive Reference under Article 30 of the Treaty but instead recognizes the distinct role of intervention in the procedural framework of the Court. - 47. In the event, we are convinced that IEBCK would qualify as a legal person with standing to intervene under Article 40 of the Treaty in an appropriate case. - 48. In conclusion, we find that the preliminary objection raised by Mr. Mabirizi does not constitute a challenge to the jurisdiction of this Court and is accordingly dismissed.

Application No. 47 of2022 Page 13

## **F. CONSIDERATION OF THE MERITS OF THE APPLICATION**

49. We now proceed to consider the merits of the Application.

- 50. The Applicant contended, correctly so, that it has locus standi as a resident of a Partner State under the Treaty and asserts that its joinder is necessary to address allegations raised against its Chairperson and Commissioners in the Reference. - 51. The Applicant submitted that the Reference before this Court directly challenges the declaration of presidential results made by its then Chairperson. - 52. It was argued that the reliefs sought by the Applicant in the Reference, specifically reliefs 1, 2 and 3, fundamentally target the Applicant's conduct and decisions in relation to the election but that despite the centrality of these allegations to the Applicant's role, the Applicant has not been joined as a party to these proceedings. - 53. The Applicant outlined the constitutional basis for its operations, noting that Article 88(1) of the Constitution of Kenya, 2010, establishes the IEBCK as an independent commission under Chapter 15 of the Constitution. Further, Article 249(2)(b) of the Constitution guarantees the IEBCK's independence, ensuring that it is not subject to direction or control by any person or authority. They also cited Section 13 of the **Independent Electoral and Boundaries Commission Act, No. 9 of 2011** which they said that also confirms the IEBCK's legal personality as a body corporate with the capacity to sue and be sued in its own name.

Application No. 4 7 of 2022 Page 14

- 54. As to whether it meets the threshold for intervention under Article 40 of the Treaty, it was contended that the IEBCK satisfies this requirement, as it is a resident entity of a Partner State under the Treaty and has demonstrated a direct and substantial interest in the proceedings and would not seek to widen the issues before Court. - 55. The Applicant highlighted its constitutional mandate under Article 88(4) of **the Constitution of Kenya,** which includes the conduct and supervision of elections. That the Reference specifically challenges the IEBCK's actions during the Presidential elections held on 9th August 2022, alleging that decisions by its Chairperson and Commissioners undermined principles of democracy, transparency, accountability, and fundamental civic rights and the reliefs sought, particularly those targeting the IEBCK's conduct and decisions, underscore the critical relevance of its participation. - 56. It was further asserted that the allegations raised directly implicate its conduct during the elections, necessitating its involvement to clarify and assist the Court in adjudicating the issues. The Applicant further notes that it is uniquely positioned to provide crucial information relevant to the matters before the Court. - 57. Counsel for the Applicant submitted that the Applicant's intervention will not expand the scope of the Reference but it seeks to address specific allegations raised within the parameters of the Applicant's Statement of Reference, thereby ensuring that the issues remain confined to those already framed in the proceedings. - 58. Citing relevant jurisprudence, including **Martha Wangari Karua vs The Attorney General of the Republic of Kenya (Hon. Anne** Application No. 47 of2022 Page 15

**Mumbi Waiguru & Hon. Peter Ndambiri: lnterveners), EACJ Reference No. 20 of 2019,** the Applicant noted that the role of an Intervener in proceedings before this Court is well defined and limited to making submissions on the evidence presented by the parties, either in support or opposition.

- 59. At the highlight of submissions, Counsel for the Applicant specified the reasons for seeking the joinder of the Applicant as Intervener. These included the procurement of electoral technology and materials, voter registration and updates, the independent audit and certification of the voter register, and preparations for the general election. Additionally, the IEBCK would address the conduct of the August 9, 2022, general election, covering result collection, transmission, verification, tallying, and declaration. - 60. In conclusion, the Applicant submitted that granting leave to intervene would ensure the proper representation of its interests and facilitate the just resolution of the issues before the Court. - 61 . The 2nd Respondent fully associated himself with and agreed with the submissions by the Applicant in justification of the Applicant's case for joinder. - 62. On his part, Counsel for the 2nd Respondent submitted that the sole issue for determination regarding the Application by the proposed Intervener, dated 19th December 2022, was whether the IEBCK had satisfied the threshold for intervention under Article 40 of the Treaty. - 63. He contended that the IEBCK qualified to apply for leave to intervene as it was a resident entity of a Partner State under the Treaty. It was

Application No. 4 7 of 2022 Page 16

argued that Article 40 of the Treaty permits such entities to seek leave to intervene in proceedings if they demonstrate a legitimate interest in the issues before the Court.

## **a. 1st Respondent's Submissions in opposition to the Application**

- 64. Mr Mabirizi opposed the Application to have the IEBCK joined as an Intervener. He argued that the Application failed to meet the threshold set out in Article 40 of the Treaty and Rule 59(4) of the Court's Rules. He emphasized that the Court must assess each Application on its merits and that the standard for allowing intervention is higher than the usual balance of probabilities. - 65. Citing the precedent in **Amama Mbabazi vs Vower Kaguta Museveni, Election Petition No. 1 of 2016** and **Hon. Fred Mukasa Mbidde vs Attorney General of Burundi & Another, EACJ Application No. 6 of 2018,** Mr Mabirizi outlined three conditions for intervention: (1) the Intervener must have a direct and immediate interest in the case, (2) intervention must not enlarge the issues, and (3) the reasons for intervention must outweigh any opposition. He contended that the Applicant failed on all three conditions. - 66. Mr Mabirizi argued that the IEBCK's interest aligns with the Respondent's, making their joinder redundant. He asserted that the IEBCK's role is merely to support the Respondent's case, which does not constitute a distinct or immediate interest. That the IEBCK therefore lacks direct or immediate interest.

Application No. 47 of 2022 Page 17 - 67. He contended that allowing the IEBCK to intervene would introduce additional issues, duplicating the Respondent's defence and burdening the proceedings. That any allegations can be addressed within the existing framework. - 68. Mr Mabirizi argued that the duplication of roles by the Respondent and IEBCK prejudices the proceedings. He expressed concern that he would face coordinated attacks from two entities representing the same interests, leading to an unfair imbalance. - 69. He further noted that the Court operates under written international law (Article 8(4) of the Treaty), which excludes reliance on domestic laws or customary international law in this context. - 70. Finally, Mr Mabirizi emphasized that the Application is an abuse of process, as it seeks to present the same arguments through multiple avenues. He urged the Court to dismiss the Application with costs, citing prejudice to his case and the potential for procedural inefficiencies.

## **b. The Court's Determination**

- 71. The pivotal question that begs to be answered is whether the Independent Electoral and Boundaries Commission satisfies the threshold for intervention under the Treaty. - 72. Article 40 of the Treaty and Rule 59(4) of the Rules provide the legal criteria for determining eligibility for joinder as an intervener in proceedings in this Court.

- 73. Rule 59(4) specifies that the Court has the discretion to allow intervention only if it is "satisfied that the Application is justified." This provision ensures that intervention is not granted automatically upon request but is subject to the Court's determination of its necessity and relevance. The rule aligns with the purpose of Article 40, which allows intervention only to support or oppose arguments within the existing scope of the case. - 74. The "satisfaction" requirement establishes a threshold that Applicants must meet to justify their intervention. This involves demonstrating a clear and substantial interest in the outcome of the case without unduly complicating or enlarging the issues before the Court. - 75. Rule 59(4), read with Article 40, establishes a high judicial discretionary threshold to safeguard against unwarranted or disruptive interventions. The Court's satisfaction hinges on whether the Applicant's involvement will enhance the resolution of the case without prejudicing the rights of the original parties or deviating from the established scope of the litigation. - 76. In their pleadings and submissions, the Applicant emphasizes its constitutional and statutory mandate, notably: - **i. Article 88 of the Constitution of Kenya: Establishing the IEBCK as an independent commission responsible for conducting elections;** - **11. Article 249(2) (b): Guaranteeing its independence; and**

## **iii. Section 13 of the IEBC Act: Confirming its legal personality and capacity to sue or be sued.**

- 77. The IEBCK asserts locus standi as a resident entity of a Partner State, arguing that its joinder is necessary due to the centrality of allegations against its Chairperson and Commissioners and it contends that its constitutional and statutory mandate directly relates to the issues raised in the Reference, particularly the conduct of elections and declaration of results. - 78. However, while these provisions affirm the IEBCK's general mandate, they do not establish a distinct and indispensable role in this case. Mere mention of its role or mandate does not equate to a direct and substantial interest. - 79. The allegations in the Reference focus on decisions and conduct attributable to its Chairperson and Commissioners, rather than challenging the institution as a whole. The IEBCK's claim to intervention, therefore, hinges more on institutional association rather than demonstrating how its participation as a body would uniquely aid the Court in resolving the issues. - 80. Therefore, in our opinion, the Applicant's interest seems tangential rather than direct and immediate. - 81. Further, from a close perusal of the 2nd Respondent's Amended Response to the Statement of Reference filed on 16th December 2022, it is easily discerned that the Applicant's interests are already extensively and adequately represented by the 2nd Respondent, who

Application No. 47 of2022 Page 20

in any case has constitutional responsibility for defending government institutions.

- 82. The Court must balance the Applicant's potential contribution against the burden of allowing intervention. Here, the IEBCK has not demonstrated that its intervention is necessary to resolve the issues. The 2nd Respondent's role already encompasses defending the integrity of governmental and constitutional processes, which discounts the IEBCK assertion that its unique position allows it to provide crucial information relevant to resolving the matter. - 83. Citing **Martha Karua vs Attorney General of Kenya** (supra) and other cases decided by this Court, the Applicant attempts to frame its role within established intervention jurisprudence. However, those cases affirm the need for a direct, immediate, and unique interest. Merely being implicated by association or having a general stake in the outcome is insufficient. The Applicant's reliance on general jurisprudence without strong factual alignment to the present case undermines the sufficiency of its claim. - 84. The Applicant's proposed submissions largely overlap with the 2nd Respondent's defence, particularly regarding the conduct of the elections and the integrity of the electoral processes. This duplication of arguments adds no new perspective to the case. Moreover, the risk of procedural inefficiencies and prejudicing the 1st Respondent, as he rightly submitted, outweighs the Applicant's interest in joining the proceedings. This state of affairs, in our opinion, debunks the assertion that its intervention would not expand the scope of the Reference and would stay within the framed issues.

Application No. 47 of2022 Page 21

- 85. Whereas the Application complies with the procedural requirements under Rule 59(2), procedural compliance alone does not guarantee intervention. Rule 59(4) places a higher standard on the Court to be satisfied that intervention is justified. - 86. For a significant matter such as the instant one, the Applicant ought to have: - i. **Clearly delineated their role in the disputed actions or decisions;** - ii. **Provided compelling evidence that their intervention is indispensable to a just resolution;** - iii. **Avoided duplicating arguments that existing parties can already address; and** - **iv. Possibly filed affidavit evidence in support of the Respondent's case in the Reference.** - 87. The Application for intervention appears more aligned with general interest rather than necessity. This does not meet the high standard required under Article 40 of the Treaty and Rule 59(4) of the Rules. - 88. Intervention is warranted only when the Applicant demonstrates a distinct and substantial interest that cannot be represented through existing parties.

## **G. CONCLUSION**

89. Alive to the established jurisprudence emphasizing that intervention must be carefully scrutinized to prevent undue disruption (See: **Amama Mbabazi vs Vower Kaguta Museveni, Election Petition**

Application No. 47 of2022 Page 22

**No. 1 of 2016,** and **Hon. Fred Mukasa Mbidde vs Attorney General of Burundi** & **Another, EACJ Application No. 6 of 2018),** our finding and conclusion is that the IEBCK fails to meet the threshold for intervention as set out under Article 40 of the Treaty and Rule 59(4) of the Rules; primarily for the reasons that:

- i. **The Applicant's interest is not distinct from that of the 2nd Respondent, and its role in the Reference is peripheral rather than central;** - ii. **The proposed intervention would largely replicate the Respondent's defence, adding no unique insights while complicating the proceedings; and** - **111. Allowing the IEBCK to intervene risks creating an unfair imbalance and inefficiencies in the proceedings.** - 90. Resultantly, we decline the Application for intervention.

## **H. COSTS**

91. In exercise of the Court's discretion under Rule 127 of the Rules, we direct that each party shall bear their own costs.

Dated, signed and delivered at Arusha this 28^th day of November, 2024.

nexua Hon. Justice Yohane B. Masara PRINCIPAL JUDGE Hon. Justice Richard Muhumuza **JUDGE** ............. Hon. Justice Richard Wabwire Wejuli **JUDGE** Hon. Justice Dr Léonard Gacuko **JUDGE**

Hon. Justice Kayembe Ignace Rene Kasanda JUDGE

Application No. 47 of 2022

Page 24