Acuil v Attorney General of the Republic of South Sedan and Another (Reference No.4 of 2018) [2021] EACJ 8 (8 October 2021) (First Instance Division)

Key Facts

Issues

• The Court had to determine whether it has jurisdiction to entertain the Reference filed under the East African Community Treaty. The Respondent argued the Court lacks jurisdiction because the acts being challenged occurred before South Sudan was granted membership of the Community in April 2016, and the Reference is time barred. The Court examined Articles 27(1), 30(1), and 30(2) of the Treaty regarding jurisdiction ratione personae, ratione materiae, and ratione temporis.
• The Court needed to determine whether a parallel Bar Association was established by the Respondent and if that action contravened Articles 6(d) and 7(2) of the Treaty regarding good governance and rule of law principles. The Applicant alleged the Respondent established a parallel Bar Association to deny the Applicant the right to perform the function of Vice President in the transitional Bar.
• The Court had to assess whether the Applicant's right to renew his Practicing Certificate and be elected as Vice President of the Bar Association was infringed, which would constitute a violation of Articles 6(d) and 7(2) of the Treaty. The Applicant's practicing certificate expired in April 2017 but could not be renewed due to the alleged absence of a functioning Bar Association and Bar Council.
• The Court examined whether the Reference is time barred under Article 30(2) of the Treaty, which requires proceedings to be instituted within two months of the enactment, publication, directive, decision or action complained of. The Respondent argued the Reference was filed on 8th February 2018, more than two months after the actions complained of arose in 2014. The Court held that the Treaty does not recognize continuous breaches or allow extension of the time limit.
• The Court needed to determine whether the parties are entitled to the remedies sought by the Applicant, including declarations that the parallel Bar Association and its Bar Council are unconstitutional, orders to withdraw representatives assigned to the parallel Bar Association, and orders restraining the Respondent from issuing practicing licenses to advocates.

Holdings

Remedies

Legal Principles

• The Court found that it lacks jurisdiction ratione temporis to entertain the Reference because the impugned acts occurred in 2014, before South Sudan joined the East African Community in April 2016. The Treaty obligations apply to Partner States after obtaining membership, not retrospectively. The Court has no mandate to extend the time limitation under Article 30(2) of the Treaty nor the liberty to treat alleged Treaty breaches as continued violations.
• The Court applied the two-month limitation period under Article 30(2) of the Treaty for instituting proceedings. The proceedings must 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 complaint. The Court cannot extend this time limit for continued violations.
• The Court held that a Treaty cannot be applied retrospectively unless a different intention appears from the Treaty or is otherwise established. In the absence of contrary intention, a Treaty cannot apply to acts or facts which took place or situations which ceased to exist before the date of its entry into force. The principle of non-retroactivity is a fundamental issue that goes to the root of the case and must be determined at the outset before dealing with any other issue.

Precedent Name

• Alcon International Limited vs. Standard Chartered Bank of Uganda & 2 Others, EACJ Appeal No. 3 of 2013
• Attorney General of the Republic of Uganda & Another vs. Omar Awadh & 6 Others, EACJ Appeal No. 2 of 2012
• Emmanuel Mwakisha Mjawasi & Others vs. Attorney General of the Republic of Kenya, EACJ Reference No. 2 of 2010
• Attorney General of the United Republic of Tanzania vs. African Network of Animal Welfare, EACJ Reference No. 9 of 2010
• Attorney General of the Republic of Kenya vs. Independent Medical Legal Unit, EACJ Appeal No. 1 of 2011

Cited Statute

• Advocates' Act, 2013
• East African Court of Justice Rules of 2019
• Treaty for the Establishment of the East African Community
• Political Parties Act, 2012
• Ministry of Legal Affairs and Constitutional Development Act, 2008
• Transitional Constitution of the Republic of South Sudan 2011
• South Sudan Bar Association Election Rules and Regulations, 2014

Judge Name

• Hon. Justice Charles Nyachae
• Hon. Lady Justice Monica K. Mugenyi
• Hon. Justice Audace Ngiye

Passage Text

• For the reasons stated in this judgment, we find and hold that this Court does not have jurisdiction to hear and determine the Reference. Further and in any event, it is also our finding that the Reference is time barred. The upshot of the foregoing discourse is that we do hereby dismiss this Reference with costs to the Respondent. It is so ordered.
• We find that we have no jurisdiction over this Reference, and must decline the invitation to decide otherwise. Unless the principle of non-retrospective application of the Treaty is rebutted by demonstrating a contrary intention; as a matter of law, the Court would lack the juridical basis to determine a dispute in respect of events that took place before the coming into force of the Treaty.
• In our considered view, the Respondent's argument is aptly addressed by the principle of non-retroactivity of the Treaty as spelt out by the Court above. From the pleadings on record, it is clear that the Treaty violations in contention before us occurred sometime in 2014. There is no contrary intention from the reading of the Treaty that it was to apply retrospectively and none has been established before us by the Applicant. In any event, the Reference was filed on 8th February, almost two years after South Sudan joined the Community. Therefore, this reasoning is not helpful at all.