IN THE EAST AFRICAN COURT OF JUSTICE

AT ARUSHA
(Coram: Moijo M. ole Keiwua P, Joseph N. Mulenga VP, Augustino S. L.
Ramadhani J, Mary Stella Arach-Amoko J, Harold R. Nsekela J)

REFERENCE NO. 1 OF 2007

BETWEEN

JAMES KATABAZI AND 21 OTHERS ……………………… APPLICANTS

VERSUS

SECRETARY GENERAL OF THE EAST AFRICAN

COMMUNITY………………………………………………….. 1ST
RESPONDENT

THE ATTORNEY GENERAL OF THE REPUBLIC OF

UGANDA……………………………………………………… 2ND
RESPONDENT

DATE: 1ST DAY OF NOVEMBER, 2007

JUDGMENT OF THE COURT.

This is a Reference by sixteen persons against the Secretary

General of the East African Community as the 1st Respondent

and the Attorney General of Uganda as the 2nd Respondent.

The story of the Claimants is that: During the last quarter of

2004 they were charged with treason and misprision of
treason and consequently they were remanded in custody.
 2

However, on 16th November, 2006, the High Court granted

bail to fourteen of them. Immediately thereafter the High Court
was surrounded by security personnel who interfered with the
preparation of bail documents and the fourteen were re-
arrested and taken back to jail.

On 24th November, 2006, all the Claimants were taken before

a military General Court Martial and were charged with
offences of unlawful possession of firearms and terrorism.
Both offences were based on the same facts as the previous
charges for which they had been granted bail by the High
Court. All Claimants were again remanded in prison by the
General Court Martial.

The Uganda Law Society went to the Constitutional Court of

Uganda challenging the interference of the court process by
the security personnel and also the constitutionality of
conducting prosecutions simultaneously in civilian and
military courts. The Constitutional Court ruled that the
interference was unconstitutional.

Despite that decision of the Constitutional Court the

complainants were not released from detention and hence this
Reference with the following complaint:
The Claimants aver that the rule of law requires
that public affairs are conducted in accordance
with the law and decisions of the Court are
respected, upheld and enforced by all agencies of
the Government and citizens and that the actions
of a Partner State of Uganda, its agencies and the
 3

second Respondent have in blatant violation of

the Rule of Law and contrary to the Treaty
continued with infringement of the Treaty to date.

The Claimants have sought the following orders:

(a) That the act of surrounding the High Court by armed
men to prevent enforcement of the Court’s decision is
an infringement of Articles 7(2), 8(1)(c) and 6 of the
Treaty for the Establishment of the East African
Community (The Treaty).
(b) That the surrounding of the High Court by armed men
from the Armed Forces of Uganda is in itself an
infringement of the Fundamental Principles of the
Community in particular regard to peaceful settlement
of disputes.
(c) The refusal by the Second Respondent to respect and
enforce the decision of the High Court and the
Constitutional Court is infringement of Articles 7(2),
8(1)(c) and 6 of the Treaty.
(d) The continual arraignment of the Applicants who are
civilians before a military court is an infringement of
Articles 6, 7, and 8 of the Treaty for Establishment of
the East African Community.
(e) The inaction and the loud silence by the First
Respondent is an infringement of Article 29 of the
Treaty.
(f) Costs for the Reference.
 4

The 1st Respondent in his response at the outset sought the

Court to dismiss the Reference on two grounds: One, that
there was no cause of action disclosed against him, and two,
that the affidavits in support of the Reference were all

incurably defective. In the alternative, the 1 st Respondent

argued that:
The allegations which form the basis of the
Application have at no time been brought to the
knowledge of the 1st Respondent and the
Claimants are, therefore, put to strict proof.

The 2nd Respondent, on the other hand, virtually conceded

the facts as pleaded by the Claimants. After admitting that the
Claimants were charged with treason and misprision of

treason, the 2nd Respondent stated in his Response:

(e) That on 16th November, 2005, the security agencies of

the Government of Uganda received intelligence
information that upon release on bail, the Claimants
were to be rescued to escape the course of justice and
to go to armed rebellion.
(f) That the security agencies decided to deploy security
at the High Court for purely security reasons and to
ensure that the Claimants are re-arrested and taken
before the General Court Martial to answer charges of
terrorism and unlawful possession of firearms.
 5

(g) That on 17th November, 2005, all the Claimants were

charged in the General Court Martial with terrorism
and unlawful possession of firearms which are service
offences according to the Uganda People’s Defence
Forces Act, No. 7 of 2005.

Thus, in effect, the 2nd Respondent is affirming that the acts

did take place but contends that they did not breach the rule
of law.

The Claimants were represented by Mr. Daniel Ogalo, Learned

Counsel, while the 1st Respondent had the services of Mr.

Colman Ngalo, Learned Advocate, and Mr. Wilbert Kaahwa,

Learned Counsel to the Community. The 2nd Respondent was

represented for by Mr. Henry Oluka, Learned Senior State
Attorney of Uganda assisted by Mr. George Kalemera and Ms.
Caroline Bonabana, Learned State Attorneys of Uganda.

When the matter came up for the Scheduling Conference

under Rule 52 of the East African Court of Justice Rules of
Procedure (The Rules), Mr. Ngalo raised a preliminary
objection that there is no cause of action established against

the 1st Respondent. The pleadings of the Claimants do not

disclose that at any stage, the Secretary General was informed
by the Applicants or by anybody at all that the Applicants had
been incarcerated or confined or that their rights were being
 6

denied.

Mr. Ogalo responded by submitting that under Article 71(1)(d)

of the Treaty one of the functions of the Secretariat, of which

the 1st Respondent is head, is:

the undertaking either on its own initiative or
otherwise, of such investigations, collection of
information, or verification of matters relating to
any matter affecting the Community that
appears to it to merit examination.

Mr. Ogalo contended that it is not necessary that the 1 st

Respondent must be told by any person “because he can, on
his own, initiate investigations”.

The Court dismissed the preliminary objection but we reserved

our reasons for doing so and we now proceed to give them. At
the time of hearing the preliminary objection the Court had
not reached the stage of a Scheduling Conference under Rule
52. It is at that Conference that points of agreement and
disagreement are sorted out. It was our considered opinion
that the matter raised could appropriately be classified at the
Scheduling Conference as a point of disagreement.

But apart from that the matter raised by Mr. Ngalo was not
one which could be dealt with as a preliminary objection
because it was not on point of law but one involving facts. As
 7

LAW, J. A. of the East African Court of Appeal observed in

Mukisa Biscuit Manufacturing Co. Ltd. v. West End
Distributors Ltd. [1969] E. A. 696 at p. 700:
So far as I am aware, preliminary objection
consists of a point of law which has been
pleaded, or which arises by clear implication out
of pleadings, and which if argued as a
preliminary point may dispose of the suit.
Examples are an objection to the jurisdiction of
the court, or a plea of limitation, or a submission
that the parties are bound by the contract giving
rise to the suit to refer the dispute to arbitration.

Then at p. 701 SIR CHARLES NEWBOLD, P. added:

A preliminary objection is in the nature of what
used to be a demurrer. It raises a pure point of
law which is argued on the assumption that
all the facts pleaded by the other side are
correct. It cannot be raised if any fact has to
be ascertained or if what is sought is the
exercise of judicial discretion. (Emphasis is
supplied.)

The Court of Appeal of Tanzania in Civil Reference No. 32 of

2005, Etiennes Hotel v National Housing Corporation dealt
with a similar issue and, after citing Mukisa Biscuits with
approval, held:
Here facts have to be ascertained in all the
remaining six grounds of the so called
preliminary objection and that is why the
Respondent has filed two affidavits which have
been objected to by the applicant.

We are of the decided view that grounds of preliminary

objection advanced cannot be disposed off without
 8

ascertaining facts. These are not then matters for preliminary

objection. So, we dismiss the motion for preliminary objection
with costs.

Whether or not the 1st Respondent had knowledge of what

was happening to the complainants in Uganda can never ever
be a point of law but one of fact to be proved by evidence and,
therefore, it could not be a matter for a preliminary objection
and hence the dismissal.

We may as well point out here, for the sake of completeness,

that Mr. Ngalo also challenged the legality of the affidavits filed
in support of the Reference. However, in the course of
answering questions from the Bench he abandoned his
objection in the following terms:
Your Lordships, I am not going to pursue this
point. I concede that these affidavits are
sufficient for the purposes of this application.

Two issues were agreed upon at the Scheduling Conference

which were:
1. Whether the invasion of the High Court premises by
armed agents of the Second Respondent, the re-arrest
of the Complainants granted bail by the High Court
and their incarceration in prison constitute
infringement of the Treaty for the Establishment of the
East African Community.
2. Whether the First Respondent can on his own
 9

initiative investigate matters falling under the ambit of

the provisions of the Treaty.

As for the first issue Mr. Ogalo submitted that the Court was
called on to interpret Articles 6, 7, 8, 29 and 71 of the Treaty
and implored the Court to do so by looking at “the ordinary
meaning of the words used in those provisions, the objectives
of the Treaty and the purposes of those articles”.

His main plank of argument was that the acts complained of

violated one of the fundamental principles of the Community
as spelled out in Article 6(d), that is, rule of law. As to the
import of that doctrine he referred us to The Republic v.
Gachoka and Another, [1999] 1 EA 254; Bennett v. Horseferry
Road Magistrates’ Court and Another [1993] 2 All ER 474; and
a passage in Kanyeihamba’s Commentaries on Law, Politics
and Governance (Renaissance Media Ltd, 2006) p 14.

The learned advocate pointed out that the first complaint is

the act of surrounding the High Court of Uganda by armed
men so as to prevent the enforcement of the decision of the
Court. The second act was the re-arrest and the incarceration
of the Complainants.

Mr. Ogalo pointed out that the acts complained of constituted

contempt of court and also interference with the independence
of the Judiciary. He concluded that both contempt of court
 10

and the violation of the independence of the judiciary

contravene the principle of the rule of law.

As for the second issue Mr. Ogalo was very brief. He submitted

that the 1st Respondent is empowered by Article 71 (1)(d), on

his own initiative, to conduct investigation, collect information
or verify facts relating to any matter affecting the Community
that appears to him to merit examination. The stand taken by

Mr. Ogalo was that if the 1 st Respondent properly exercised

his powers under the Treaty, he should have known the
matters happening in Uganda as a Partner State and take
appropriate actions.

He, therefore, asked the Court to find both issues in favour of

the complainants.

In reply Mr. Ngalo pointed out that what concerned the 1 st

Respondent was the second issue. The Learned Counsel

submitted that the complainants are alleging that the 1 st

Respondent ought to have reacted to what the 2 nd

Respondent was doing in Uganda. However, he contended,

there is no evidence that the 1st Respondent was aware of

those activities. He pointed out that Article 29 starts by
providing “Where the Secretary General considers that a
Partner State has failed …” and he argued that for the
 11

Secretary General to “consider” he has to be aware but the

Complainants have failed to establish that awareness.

As for Article 71 Mr. Ngalo submitted that it provides for the

functions of the Secretariat as an institution of the
Community and not as to what happens in the Partner States.

For the 2nd Respondent Mr. Oluka dealt with the surrounding
of the High Court, the re-arrest and the continued
incarceration of the Complainants. The Learned Senior State
Attorney pointed out that all the three matters were fully
canvassed and decided upon by the Constitutional Court of
Uganda. Therefore, he submitted that this Court is prohibited
by the doctrine of res judicata from dealing with those issues
again.

Mr. Oluka conceded that though the facts in this Reference

and those which were in the Petition before the Constitutional
Court of Uganda are substantially the same, the parties are
different. In the Constitutional Petition No. 18 of 2005, the
parties were The Uganda Law Society and the Attorney
General of Uganda while in this Reference the parties are
James Katabazi and 21 others, on the one hand, and the
Secretary General of the Community and the Attorney General
of Uganda, on the other hand. Nevertheless, Mr. Oluka stuck
to his guns that the doctrine of res judicata applies to this
 12

Reference.

He also submitted that under Article 27 (1) this Court does not
have jurisdiction to deal with matters of human rights until
jurisdiction is vested under Article 27(2). He, therefore, asked
the Court to dismiss the Reference with costs.

There are three issues which we think we ought to dispose of

at the outset: First, whether or not Article 71 is relevant in this
application. Second, whether or not the doctrine of res judicata
applies to this Reference. Last, is the issue of the jurisdiction
of this Court to deal with human rights.

It is the argument of Mr. Ogalo that Article 71 (1) (d) imposes

on the 1st Respondent the duty to collect information or verify

facts relating to any matter affecting the Community that
appears to him to merit examination. Mr. Ngalo, on the other
hand, contends that Article 71 (1) (d) sets out the functions of
the Secretariat as an institution of the Community and not as
to what happens in the Partner States

Article 71 (1) (d) provides as follows:

1. The Secretariat shall be responsible for:
(a) …
(b) …
(c) …
(d) the undertaking either on its own initiative or
otherwise, of such investigations, collection of
 13

information, or verification of matters relating to

any matter affecting the Community that
appears to it to merit examination; (Emphasis is
supplied.)

Mr. Ngalo wanted to confine the functions of the Secretariat

under Article 71 (1) (d) to internal matters of the Secretariat as
an organ, which he erroneously referred to as an institution,
divorced from the duties imposed on the Secretary General
under Article 29. It is, therefore, our considered opinion that
Article 71 (1) (d) applies to this Reference.

Are we barred from adjudicating on this Reference because of

the doctrine of res judicata? The doctrine is uniformly defined
in the Civil Procedure Acts of Kenya, Uganda and Tanzania as
follows:
No court shall try any suit or issue in which the
matter directly and substantially in issue has
been directly and substantially in issue in a
former suit between the same parties, or between
parties under whom they or any of them claim,
litigating under the same title, in a court
competent to try such subsequent suit or the
suit in which such issue has been subsequently
raised, and has been heard and finally decided
by such court.

Three situations appear to us to be essential for the doctrine

to apply: One, the matter must be “directly and substantially”
in issue in the two suits. Two, parties must be the same or
parties under whom any of them claim litigating under the
 14

same title. Lastly, the matter was finally decided in the

previous suit. All the three situations must be available for the
doctrine of res judicata to operate. In the present case one
thing is certain: The parties are not the same and cannot be
said to litigate under the same title. Mr. Oluka himself has
properly conceded that.

Secondly, while in the Constitutional Court of Uganda the

issue was whether the acts complained of contravene the
Constitution of Uganda, in the instant Reference the issue is
whether the acts complained of are a violation of the rule of
law and, therefore, an infringement of the Treaty. Therefore,
the doctrine does not apply in this Reference.

Does this Court have jurisdiction to deal with human rights

issues? The quick answer is: No it does not have. Jurisdiction
of this Court is provided by Article 27 in the following terms:
1. The Court shall initially have jurisdiction over
the interpretation and application of this
Treaty.
2. The Court shall have such other original,
appellate, human rights and other jurisdiction
as will be determined by the Council at a
suitable subsequent date. To this end, the
Partner States shall conclude a Protocol to
operationalise the extended jurisdiction.

It very clear that jurisdiction with respect to human rights

requires a determination of the Council and a conclusion of a
Protocol to that effect. Both of those steps have not been
 15

taken. It follows, therefore, that this Court may not adjudicate

on disputes concerning violation of human rights per se.

However, let us reflect a little bit. The objectives of the

Community are set out in Article 5 (1) as follows:
1. The objectives of the Community shall be to
develop policies and programmes aimed at
widening and deepening co-operation
among the Partner States in political,
economic, social and cultural fields, research
and technology, defence, security and legal
and judicial affairs, for their mutual benefit.
(Emphasis supplied.)
Sub-Articles (2) and (3) give details of pursuing and ensuring
the attainment of the objectives as enshrined in sub-article (1)
and of particular concern here is the “legal and judicial affairs”
objective.

Then Article 6 sets out the fundamental principles of the

Community which governs the achievement of the objectives of
the Community, of course as provided in Article 5 (1). Of
particular interest here is paragraph (d) which talks of the rule
of law and the promotion and the protection of human and
peoples’ rights in accordance with the provisions of the African
Charter on Human and Peoples’ Rights.

Article 7 spells out the operational principles of the

Community which govern the practical achievement of the
objectives of the Community in Sub-Article (1) and seals that
with the undertaking by the Partner States in no uncertain
terms of Sub-Article (2):
The Partner States undertake to abide by the
 16

principles of good governance, including

adherence to the principles of democracy, the
rule of law, social justice and the
maintenance of universally accepted
standards of human rights. (Emphasis
supplied.)

Finally, under Article 8 (1) (c) the Partner States undertake,

among other things:
Abstain from any measures likely to jeopardise
the achievement of those objectives or the
implementation of the provisions of this Treaty.

While the Court will not assume jurisdiction to adjudicate on

human rights disputes, it will not abdicate from exercising its
jurisdiction of interpretation under Article 27 (1) merely
because the Reference includes allegation of human rights
violation.

Now, we go back to the substance of this Reference. As we

have already observed in this judgment, the 2 nd Respondent

has conceded the facts which are the subject matter of this
Reference and, so, they are not in dispute. He has only offered
some explanation that the surrounding of the Court, the re-
arrest, and therefore, the non observance of the grant of bail,
and the re-incarceration of the Complainants were all done in
good faith to ensure that the Complainants do not jump bail
and go to perpetuate insurgency.
 17

Mr. Ogalo invited us to find that explanation unjustified

because it was not supported by evidence. We agree with him
and we would go further and observe that “the end does not
justify the means”.

The Complainants invite us to interpret Articles 6(d), 7(2) and

8(1)(c) of the Treaty so as to determine their contention that

those acts, for which they hold the 2 nd Respondent

responsible, contravened the doctrine of the rule of law which
is enshrined in those articles.

The relevant provision of Article 6(d) provides as follows:

The fundamental principles that shall govern the
achievement of the objectives of the Community
by the Partner States shall include:
(a) …
(b) …
(c) …
(d) good governance including adherence to
the principles of democracy, the rule of
law, accountability, transparency, social
justice, equal opportunities, gender
equality, as well as the recognition,
promotion and protection of human and
peoples’ rights in accordance with the
provisions of the African Charter on
Human and Peoples’ Rights; (Emphasis
supplied.)

The starting point is what does rule of law entail?

 18

From Wikipedia, the Free Encyclopedia:

The rule of law, in its most basic form, is the

principle that no one is above the law. The rule
follows logically from the idea that truth, and
therefore law, is based upon fundamental
principles which can be discovered, but which
cannot be created through an act of will.
(Emphasis is supplied.)

The Free Encyclopedia goes further to amplify:

Perhaps the most important application of the

rule of law is the principle that governmental
authority is legitimately exercised only in
accordance with written, publicly disclosed laws
adopted and enforced in accordance with
established procedural steps that are referred to
as due process. The principle is intended to be a
safeguard against arbitrary governance, whether
by a totalitarian leader or by mob rule. Thus, the
rule of law is hostile both to dictatorship and to
anarchy.

Here at home in East Africa Justice George Kanyeihamba in

Kanyeihamba’s Commentaries on Law, Politics and
Governance at page 14 reiterates that essence in the following
words:
The rule of law is not a rule in the sense that it
binds anyone. It is merely a collection of ideas
and principles propagated in the so-called free
societies to guide lawmakers, administrators,
judges and law enforcement agencies. The
overriding consideration in the theory of the
 19

rule of law is the idea that both the rulers and

the governed are equally subject to the same
law of the land.
(Emphasis is supplied.)

It is palpably clear to us, and we have no flicker of doubt in

our minds, that the principle of “the rule of law” contained in
Article 6(d) of the Treaty encapsulates the import propounded
above. But how have the courts dealt with it? In The Republic
v. Gachoka and Another the Court of Appeal of Kenya
reiterated the notion that rule of law entails the concept of
division of power and its strict observance. In Bennett v.
Horseferry Road Magistrates’ Court and Another, the House of
Lords took the position that the role of the courts is to
maintain the rule of law and to take steps to do so.

In that appeal the Appellant, a New Zealander, while living in

Britain obtained a helicopter by false pretences and then fled
the country. He was later found in South Africa but as there
was no Extradition Treaty between Britain and South Africa,
the police authorities of the two countries conspired to kidnap
the Appellant and took him back to Britain. His defence to a
charge before a divisional court was that he was not properly
before the court because he was abducted contrary to the laws
of the two countries. That defence was dismissed by the
divisional court. However, on appeal to the House of Lords
LORD GRIFFITHS remarked at page 108:
If the Court is to have the power to interfere with
 20

the prosecution in the present circumstances it

must be because the judiciary accept a
responsibility for the maintenance of the rule of
law that embraces a willingness to oversee
executive action and to refuse to countenance
behaviour that threatens either basic human
rights or the rule of law.

His Lordship went on:

It is to my mind unthinkable that in such
circumstances the court should declare itself to
be powerless and stand idly by.
He then referred to the words of LORD DEVLIN in Connelly v.
DPP [1964] 2 All ER 401 at 442:
The courts cannot contemplate for a moment the
transference to the executive of the responsibility
for seeing that the process of law is not abused.

The appeal was allowed and the appellant was let scot-free.

Have the facts complained of in this Reference breached the

sacred principle of rule of law as expounded above?

Let us briefly reiterate the facts even at the risk of repeating

ourselves: The Complainants were granted bail by the High
Court of Uganda but some armed security agents of Uganda
surrounded the High Court premises pre-empting the
execution of the bail, re-arrested the Complainants, re-
incarcerated them and re-charged them before a Court
Martial. The Complainants were not released even after the
Constitutional Court of Uganda ordered so.
 21

Mr. Ogalo left no stone unturned to persuade us to find that

what the soldiers did breached the rule of law. He referred us
to similar facts in the case of Constitutional Rights Project and
Civil Liberties v. Nigeria, Communication 143/95, 150/96 –
AHG/222 (XXXVI) Annex V p 63. In that matter Chief Abiola,
among others, was detained and the Federal Government of
Nigeria refused to honour the bail granted to him by court. In
the said Communication the African Commission on Human
Rights had this to say in paragraph 30 on page 67:
The fact that the government refuses to release
Chief Abiola despite the order of his release on
bail made by the Court of Appeal is a violation of
Article 26 which obliges State parties to ensure
the independence of the judiciary. Failing to
recognise a grant of bail by the Court of
Appeal militates against the independence of
the judiciary. (Emphasis supplied).

The facts in that Communication are on all fours with the

present Reference and we find that the independence of the
judiciary, a corner stone of the principle of the rule of law, has
been violated.

The African Commission went further to observe in paragraph

33 that:
The government attempts to justify Decree No.
14 with the necessity for state security. While
the Commission is sympathetic to all genuine
attempts to maintain public peace, it must note
that too often extreme measures to curtail rights
simply create greater unrest. It is dangerous for
 22

the protection of human rights for the executive

branch of government to operate without such
checks as the judiciary can usefully perform.

That is exactly what the Government of Uganda through the

Attorney General, the 2nd Respondent, attempted to do, to

justify the actions of the Uganda Peoples’ Defence Forces:

(e) That on 16th November, 2005, the security

Agencies of the Government of Uganda
received intelligence information that upon
release on bail, the Claimants were to be
rescued to escape the course of justice and to
go to armed rebellion.
(f) That the security agencies decided to deploy
security at the High Court for purely security
reasons and to ensure that the Claimants are
re-arrested and taken before the General
Court Martial to answer charges of terrorism
and unlawful possession of firearms.

We on our part are alarmed by the line of defence offered on

behalf of the Government of Uganda which if endorsed by this
Court would lead to an unacceptable and dangerous
precedent, which would undermine the rule of law.

Much as the exclusive responsibility of the executive arm of

government to ensure the security of the State must be
respected and upheld, the role of the judiciary to provide a
check on the exercise of the responsibility in order to protect
the rule of law cannot be gainsaid. Hence the adjudication by
the Constitutional Court of Uganda referred to earlier in this
judgment. In the context of the East African Community, the
same concept is embodied in Article 23 which provides:
The Court shall be a judicial body which shall
ensure the adherence to law in the interpretation
and application and compliance with this Treaty.
 23

We, therefore, hold that the intervention by the armed security

agents of Uganda to prevent the execution of a lawful Court
order violated the principle of the rule of law and consequently
contravened the Treaty. Abiding by the court decision is the
corner stone of the independence of the judiciary which is one
of the principles of the observation of the rule of law.

The second issue is rather nebulous and we better reproduce

it for a better comprehension:
Whether the first Respondent can on his own
initiative, investigate matters falling under the
ambit of the provisions of the Treaty.

Article 29(1) of the Treaty provides as follows:

Where the Secretary General considers that a
Partner State has failed to fulfil an obligation
under this Treaty or has infringed a provision of
this Treaty, the Secretary General shall submit
his or her findings to the Partner State
concerned for that Partner State to submit its
observations on the findings.
The Secretary General is required to “submit his or her
findings to the Partner State concerned”. It is obvious to us
that before the Secretary General is required to do so, she or
he must have done some investigation. From the
unambiguous words of that sub-Article there is nothing
prohibiting the Secretary General from conducting an
investigation on his/her own initiative. Therefore, the glaring
answer to the second issue is: Yes the Secretary General can
on his own initiative investigate such matters.

But the real issue here is not whether he can but whether the
 24

Secretary General, that is, the 1 st Respondent, should have

done so. It was in this regard that there was heated debate in
the preliminary objection on whether or not the Secretary
General must have intelligence of some activity happening in a
Partner State before he undertakes an investigation.

We dismissed the preliminary objection for the reason that the

issue was not a point of law but one of fact requiring evidence.

That evidence of whether or not the 1 st Respondent had

knowledge, however, was never produced by the Complainants
in the course of the hearing. This, therefore, is the appropriate
juncture to determine whether or not knowledge is an

essential prerequisite for an investigation by the 1 st

Respondent.

We are of the decided opinion that without knowledge the

Secretary General could not be expected to conduct any
investigation and come up with a Report under Article 29(1).

We may as well add that it is immaterial how that information

comes to the attention of the Secretary General. As far as we
are concerned it would have sufficed if the Complainants had
shown that the events in Uganda concerning the

Complainants were so notorious that the 1 st Respondent

could not but be aware of them. But that was not the case for
 25

the Complainants.

In almost all jurisdictions courts have the powers to take

judicial notice of certain matters. We are not prepared to say
that what is complained of here is one such matter. However,
the powers that the Secretary General has under Article 29 are
so encompassing and are pertinent to the advancement of the
spirit of the re-institution of the Community and we dare
observe that the Secretary General ought to be more vigilant
than what his response has portrayed him to be.

In any case, it is our considered opinion that even if the 1 st

Respondent is taken to have been ignorant of these events, the
moment this Application was filed and a copy was served on
him, he then became aware, and if he was mindful of the
delicate responsibilities he has under Article 29, he should
have taken the necessary actions under that Article. That is all
that the Complainants expected of him: to register with the
Uganda Government that what happened is detestable in the
East African Community.

In the result we hold that the Reference succeeds in part and

the Claimants are to have their costs as against the 2 nd

Respondent.

MOIJO MATAIYA OLE KEIWUA

 26

THE PRESIDENT

JOSEPH N. MULENGA
THE VICE-PRESIDENT

AUGUSTINO S. L. RAMADHANI
JUDGE

MARY STELLA ARACH-AMOKO

JUDGE

HAROLD R. NSEKELA
JUDGE