Litigating at the East African Court of Justice
Module 6: Litigating Digital Rights Cases in Africa
Snapshot of types of cases before the East African Court of Justice
In 2019 the East African Court of Justice (EACJ) handed down a judgment in which is declared that certain provisions of Tanzania’s Media Services Act violated freedom of expression.
A group of civil society organisations approached the EACJ arguing that that “the Act in its current form is an unjustified restriction on the freedom of expression which is a cornerstone of the principles of democracy, the rule of law, accountability, transparency and good governance which [Tanzania] has committed to abide by, through the Treaty.” It was submitted that the Act violated freedom of expression through the criminalising the dissemination of disinformation.
The EACJ was critical of the broad wording of the impugned provision that regulated content restriction. Further, the EACJ found that the provisions relating to fake news and rumours were similarly vague and found them to be in conflict with the EAC Treaty. The EACJ ultimately found that the provisions violated freedom of expression and ordered the Tanzanian government to take measures to bring the Act into compliance with the EAC Treaty.
Overview of the East African Court of Justice
The EACJ is a sub-regional court that is mandated to resolve disputes involving the East African Community and its Member States. The EACJ was established by article 9 of the Treaty for the Establishment of the East African Community (EAC Treaty) and is tasked with interpreting and enforcing the treaty.(1) The East African Court of Justice Rules of Procedure (EACJ Rules) govern its functioning while it seeks to ensure adherence to law in the interpretations and application of, and compliance with, the EAC Treaty. The EACJ serves the East African Community (EAC), namely Burundi; Kenya; Rwanda; South Sudan; United Republic of Tanzania; and Uganda. It has a First Instance Division and an Appellate Division. The former administers justice and applies relevant law, while the latter confirms, denies or changes decisions taken by the First Instance Division.
Stage 1: Statement reference and statement of claim
A statement of reference (similar to a claim or complaint in domestic litigation) should include an allegation of a human rights violation made by a Partner State, the Secretary-General, or a legal or natural person. Article 24 of the EACJ Rules provides for the lodging of a statement of claim. It should be lodged at the court as a statement of reference and should include:
- The designation, name, address and the residence of both the applicant and respondent(s).
- The subject-matter of the reference and a summary of the points of law on which the application is based.
- The nature of any supporting evidence offered
- The relief sought.
A notice of the reference and a copy of the application must be served on each respondent on the Secretary-General.
Article 25 provides for the lodging of a statement of claim. This is used where the issue is between the East African Community and its employees and should include:
- The name, designation, address and where applicable residence of the claimant.
- The designation, name, address and where applicable residence of the respondent.
- A concise statement of facts on which a claim is based and of the law applicable.
- The order sought.
The EACJ User Guide explains that once a claim or reference has been filed, the Registrar will issue a notification requiring the respondents to file their statement of defence, accompanied by a copy of the statement.
Stage 2: Standing
Article 30(1) of the EACJ Rules provides that any legal or natural person who is resident in a partner state has standing to refer a determination to the EACJ; specifically, the party must be:
- A legal or natural person.
- A resident of an EAC Partner State.
- Challenging the legality of any Act, regulation, directive, decision, and action of the said Partner State or an institution of the Community.
Article 37 of the EAC Treaty allows for parties to be represented when they appear before the EACJ. Parties can be represented by an advocate entitled to appear before a superior court of any of the Partner States.
Note on amicus curiae
Amici curiae are allowed to apply to be involved in a matter per article 36 of the EACJ Rules. An application must be made by notice of motion and provide the following information:
- A description of the parties.
- The name and address of the amicus curiae.
- A description of the claim or reference.
- The order in respect of which the amicus curiae is applying for leave to intervene.
- A statement of the amicus curiae’s interest in the result of the case.
Stage 3: Jurisdiction
The jurisdictional requirements of the EACJ are set out in articles 27 and 30 of the EAC Treaty. Article 27 states as follows:
“(1) The Court shall initially have jurisdiction over the interpretation and application of this Treaty: Provided that the Court’s jurisdiction to interpret under this paragraph shall not include the application of any such interpretation to jurisdiction conferred by the Treaty on organs of Partner States.
(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.”
Article 30 states further that:
“(1) Subject to the provisions of Article 27 of this Treaty, any person who is resident in a Partner State may refer for determination by the Court, the legality of any Act, regulation, directive, decision or action of a Partner State or an institution of the Community on the grounds that such Act, regulation, directive, decision or action is unlawful or is an infringement of the provisions of this Treaty.
(2) The proceedings provided for in this Article shall be instituted within two months of the enactment, publication, directive, decision or action complained of, or in the absence thereof, of the day in which it came to the knowledge of the complainant, as the case may be.
(3) The Court shall have no jurisdiction under this Article where an Act, regulation, directive, decision or action has been reserved under this Treaty to an institution of a Partner State.”
Accordingly, jurisdiction can be exercised in the following ways:
- Ratione personae: Article 30(1) of the EAC Treaty provides that any natural or legal resident in the EAC may bring a case to the EACJ.
- Ratione temporis: Cases could fall within the temporal jurisdiction of the EACJ if they occurred subsequent to the EAC Treaty coming into force. There is a strict two-months rule that guides this exercise of jurisdiction.
- Ratione materiae: Article 30(1) of the EAC Treaty authorises legal and natural persons, resident in a state party to the EAC Treaty, to make a reference (the same as filing a complaint) to the EACJ on whether an act or omission of a state party is an infringement of the EAC Treaty.
Jurisdiction over human rights violations
It is necessary to note that the EACJ does not explicitly have jurisdiction over human rights matters. However, articles 6(d) and 7(2) of the EAC Treaty create scope for human rights matters to be brought before the EACJ.
Article 6(d) states:
“The fundamental principles that shall govern the achievement of the objectives of the Community by the Partner States shall include: 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.”
Article 7(2) states:
“The Partner States undertake to abide by the principles of good governance, including adherence to the principles of democracy, the rule of law, social justice and the maintenance of universally accepted standards of human rights.”
These articles were relied on in Burundi Journalists’ Union v Attorney General of the Republic of Burundi. In 2013, the Burundi Journalists Union filed a reference with the EACJ alleging that the Press Law enacted in Burundi restricted freedom of the press, which is a cornerstone of the principles of democracy, rule of law, accountability, transparency, and good governance. Before turning to the merits of the matter the EACJ needed to determine whether the reference was properly before it and whether it had jurisdiction to engage it. Finding that it did have jurisdiction, the EACJ reasoned that the interpretation of the question whether articles 6(d) and 7(2) of the EAC Treaty were violated in the enactment of the Press Law is a matter squarely within the ambit of this EACJ’s jurisdiction. In essence, the EACJ read freedom of expression into the above articles and held that the violations of freedom are justiciable as violations of the EAC Treaty, accordingly, clothing it with jurisdiction.
Media Defence has noted that “the judgment is strong precedent for future cases as it removes any doubts over whether the EACJ can consider freedom of expression cases despite its lack of explicit human rights jurisdiction. This makes the EACJ a viable forum before which to test the laws of East African states relevant to the media.”
Stage 4: Admissibility
The EACJ does not apply the same admissibility criteria applied by the ACHPR and the African Court. The two key considerations for the EACJ are as follows:
- Two-month rule: Article 30(2) of the EAC Treaty requires references to be filed with the EACJ within two months of the alleged violation. This time frame is narrow and can be difficult to comply with. In Attorney General of Uganda and Another v Awadh and Others, the EACJ held that it would not be flexible on this requirement. It is also necessary to note that there is no provision in the EAC Treaty that recognises the concept of continuing violations.
- Local remedies:There is no requirement that all domestic remedies must be exhausted first. In Democratic Party v Secretary-General and the Attorneys General of the Republics of Uganda, Kenya, Rwanda and Burundi, the EACJ held that this jurisdiction is not voluntary and that once an applicant can show an alleged violation of the EAC Treaty, the EACJ must exercise jurisdiction. Where it does not have jurisdiction, the EACJ has held that:
“Jurisdiction is quite different from the specific merits of any case … As it is, it should be noted that one of the issues of agreement as set out by the parties is that there are triable issues based on Articles 6, 7, 27 and 30 of the Treaty. That is correctly so since once a party has invoked certain relevant provisions of the Treaty and alleges infringement thereon, it is incumbent upon the Court to seize the matter and within its jurisdiction under Articles 23, 27 and 30 [to] determine whether the claim has merit or not. But where clearly the Court has no jurisdiction because the issue is not one that it can legitimately make a determination on, then it must down its tools and decline to take one more step.”
Stage 5: Procedure
Chapters VII and XII of the EACJ Rules provide for written and oral proceedings. Rule 54(1) provides that pre-trial proceedings take place after the close of pleading and allow the Principal Judge to determine issues in dispute, the possibility of mediation, the need for evidence and whether argument should be written or oral. Rule 53(3) and (4) provides:
“If the matter is to proceed to hearing the Division shall fix the date for commencement of hearing.
In any case where there is no need for evidence and all parties opt to present legal arguments in writing, the Division shall prescribe the time within which the parties shall file their respective written legal arguments and may fix the date on which the parties shall appear before a bench of three judges to deal with any other matter the Division thinks necessary.”
The User Guide explains the process of oral hearings as follows:
“One Party, usually the Claimant, first begins [Rule 62]. He states his case and produces his evidence ─ including calling his witness(es) to give evidence. The Respondent questions the Claimant (in cross-examination). If there is anything that is not clear, the Claimant may re-examine the witness further; and/or comment on any new points raised [Rule 63].
As the witnesses give evidence, the judge(s) take down notes. Simultaneously, a full audio recording of the proceedings is made [Rule 65]. If the case is not concluded for each hearing, a new date is set when the hearing will be continued. That process is known as Adjournment. The Court will always fix a specific date when the case will carry on. If any date is fixed at a later stage, then the Court will notify all the parties of the new date.”
The above steps take place at the level of the First Instance Divisions. Judgment shall be delivered within sixty (60) days from the conclusion of the hearing except where the EACJ is unable to do so. In some instances, the EACJ might elect to provide a decision at the close of the hearing and provide reasons at a later date.
A decision from the judgment or any order of the First Instance Division can be appealed per article 77 of the Rules of Procedure on:
- Points of law.
- Grounds of lack of jurisdiction.
- Procedural irregularity.
Written notice must be given when doing so and state the grounds of the appeal.
An intended appellant must lodge a notice of appeal within 30 days from the date of the decision. Parties are also entitled to review a judgment. Article 35 of the EAC Treaty read with article 72 of the EACJ Rules of procedure provides:
“An application for review of a judgment may be made to the Court only if it is based upon the discovery of some fact which by its nature might have had a decisive influence on the judgment if it had been known to the Court at the time the judgment was given, but which fact, at that time, was unknown to both the Court and the party making the application, and which could not, with reasonable diligence, have been discovered by that party before the judgment was made, or on account of some mistake, fraud or error on the face of the record or because an injustice has been done.”
An application for review of a judgment may be made to the EACJ only if it is based upon the discovery of some fact which by its nature might have had a decisive influence on the judgment if it had been known to the Court at the time the judgment was given, but which fact, at that time, was unknown to both the Court and the party making the application, and which could not, with reasonable diligence, have been discovered by that party before the judgment was made, or on account of some mistake, fraud or error on the face of the record or because an injustice has occurred.
Stage 6: Measures and Remedies
Article 38(3) of the EACJ Treaty provides that a partner state or the Council shall take, without delay, the measures required to implement a judgment of the EACJ. Article 39 of the EACJ Treaty allows for the issuance of interim orders when it is considered necessary to do so. Article 69(2) of the EACJ requires all orders of the EACJ to clearly specify the relief granted or other determination of the case.
Stage 7: Enforcement
Article 44 provides, amongst other things, that the rules of civil procedure applicable in the state in question will govern the execution of a judgment of the EACJ that imposes a pecuniary obligation. Rule 74 provides that a party who wishes to execute an order of the EACJ must make an application in accordance with Form 9 of the Second Schedule to the EACJ Rules.
Practicalities of litigating before the EACJ
The time limitations of the EACJ undoubtedly pose practical challenges for litigants. Other challenges that have been noted include administrative challenges, lack of enforcement mechanisms, and funding challenges.(2)