Court Hears an Application seeking Court’s Order for Stay of Signing the EPA by Partner States
East African Court of Justice; Arusha, Tanzania; 15 March 2017:
The First Instance Division heard an Application filed by Castro Pius Shirima a Tanzanian resident against the EAC Partner States and the Secretary General. The Applicant is seeking the Court’s order for stay of signing the European Partnership Agreement (EPA). According to the status of the Partner States on the signing of EPA, the Counsels representing the Respondents confirmed that the Republics of Kenya and Rwanda have signed the Agreement. And Kenya has even ratified. However they are asking Court to order the 2 Partner States stay any other pending procedures.
The Applicant’s agent Mr. Moto Matiko Mabanga, submitted that, it is very clear that Kenya and Rwanda have signed the EPA, however they also have to come to an agreement with other EAC Partner States to sign one single document of the Agreement. He also said that the Republic of South Sudan as a state which did due diligence before joining the Community and the fact that it is a member of the EAC, makes it automatically part of the negotiation and therefore it cannot say it was not involved in the negotiations.
He further urged that the Community must ensure that it does not fall into the same disagreements and different conclusions by different Partner States which led to the collapse of the previous EAC, but rather achieve the fundamental Principles of the Community, to build a sustainable Community and its economy.
Moto also said that, the legal representatives of the EAC should not be involved into arguing on the technicalities but look at what will sustain the region. He again added that, even if Kenya and Rwanda signed the EPA, due to purposes of Justice, it can be reversed. He finally called Court grant orders as sought.
Mr. Nestor Kayobera representing Burundi submitted that, the Applicant is requesting Court to stop the Partner States which have not signed stay from signing but did not ask for withdrawal of those that have signed already. He further said that, it is the 1st Respondent’s contention that, the Application is not necessary neither desirable in accordance to Article 39 of the Treaty for the Establishment of the East African Community on granting of interim orders. Article 39 provides that, “the Court may in a case referred to it make any interim orders or issue any directions which it considers necessary or desirable”
He also added that Burundi as sovereign state will sign EPA at an appropriate time as other Partner States have signed.
Further still, Kayobera submitted that, the Court has set three conditions for granting interim orders; 1) that if the Reference has a pre-mafacie case and a probability of success. That in his view there is no pre-mafacie case and no probability of success; 2) that if the Applicant will suffer irreparable injury, he urged that, the Applicant has not shown court which economic injury he will suffer if the 1ST Respondent signs the EPA; 3) that the other important condition is that the Court will consider the balance of convenience. He also added that the Applicant has not shown why he is requesting for the stay but rather based on his arguments which are speculative. He asked Court to dismiss the Application.
2nd Respondent Kenya represented by Ms. Jenifer Gitiri, submitted that they raised points of pre-preliminary objections pursuant to rule 41 of the EACJ Rules of Procedure; whether the Court has jurisdiction to hear the matter; whether the disputes raised by the Applicant are a dismissible; whether an order of stay should be granted especially for Kenya which has signed the agreement already.
Ms. Gitiri urged that, pursuant to Article 27 (1) of the Treaty which provides that; “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”. She further said that the signing of EPA is a Treaty making process which is a mandate of the sovereign state and therefore jurisdiction of the Court does not extend to the sovereignty of the Partner States in EAC.
She also submitted that the process of signing of EPA begun way back in 2004 under the APC African Pacific Caribbean group of states under EU and that mandate was in exercise of their sovereignty as states, that so it cannot be challenged in this court. She again stated that EPA negotiation were made pursuant to Article 37 of the Protocol for the Establishment of EAC Customs Union as well as Article 37(1) of the Protocol for the Establishment of EAC Common market, that therefore it cannot be admissible in this Court.
Ms. Gitiri also urged that Article 130 (3) of the Treaty provides that “with a view to contributing towards the achievement of the objectives of the Community, the Community shall foster co-operative arrangements with other regional and international organizations whose activities have a bearing on the objectives of the Community” She therefore added that when EAC Member States agreed to negotiate on the EPA, they were doing it to foster the activities that are a bearing to the objectives of the Community. That therefore the Applicant cannot purport to stop the functions of the sovereign states in signing this agreement. Again she added that on the 17th Extra-ordinary Summit, the Heads of State discussed the issue and agreed that they will meet at a later time so that other Members which have not signed can sign. She therefore submitted that if the Summit have seized the issue then it is not admissible to this Court.
The 2nd Respondent (Kenya) further contended that according to Article 30 (2) of the Treaty which provides that; “any proceedings must be constituted within two months from the day the Applicant came into the knowledge of the complaint”. She added that the negotiation in EAC started in 2004 and the EAC Member states chose configuration where they will negotiate as the block. From that time the Summit met in 2004 and 2007 and made decision that they will negotiate. That the negotiation were completed in 2014 when the agreement was initiated by the Heads of State which signified the finalization of the EPA negotiation and the Partner states proceeded with the legal translation of the documents and completed in September 2015. She therefore challenged the Applicant that failure to file the dispute within the time limit as stipulated in the Treaty makes the application being time barred and so asked Court to dismiss the Application.
In addition Ms. Gitiri submitted that, the Applicant has not tendered any evidence to Court, how he will be prejudiced by the signing of the EPA. That failure to do that the Application should not be granted.
Mr. Onguso also for the 2nd Respondent added that the Applicant failed to demonstrate the other processes that should be stayed as against the States which have already signed and ratified (Kenya and Rwanda) and also that he failed to show which errors those two Partner States have made by signing the EPA. So in conclusion he said that, on that basis the applicant doesn’t qualify to benefit from the prayers he sought.
The 3rd Respondent (Rwanda), the Counsel Mr. Nicholas Ntarugera submitted that he fully supports the submissions of the 2nd Respondent (Kenya), he went ahead and said that the Applicant has failed to clarify the damages he will suffer from the signing and the Community as whole and that Rwanda signed EPA as its obligation as a Member of EAC. That the un mentioned pending procedures the Applicant is complained of should not be entertained by this court.
The 4th Respondent (South Sudan), represented by Mr. Moses Swake submitted that, RSS was not part of the negotiations which took place before its admission to EAC and that the ruling this Court will deliver will not be binding South Sudan. He furthers added that the Applicant has not exactly mentioned what the issue is but he just said that the EAC Member states are not working together. In his view he said that, the members came together for the benefit of the region and its people.
The 5th Respondent (Tanzania), represented by Mr. Mark Mulwambu submitted that the Applicant has no cause of action against the 5th Respondent. He also said that, Tanzania has not signed EPA and has not indicated that they intend to sign the Agreement, that the allegations by the Applicant don’t have anything substantive and therefore wastage of time and abuse of process and should be dismissed with costs.
The 6th Respondent (Uganda), represented by Elisha Bafirawara, submitted that, they associate themselves with other respondents and also added that looking at the benefits of signing EPA Agreement will bring to the EAC as a region, that they find that to injunct the process of signing will cause a lot of inconvenience to the EAC Partner States and the Applicant will not be affected at all.
The 7th Respondent Secretary General represented by Stephen Agaba, submitted that, the Secretary General disapproves the urgency of the application and that it is based on misinformation and speculation because he did not show the cause of action against the 7th Respondent. He again said that the order sought by the Applicant court to direct the Secretary General to withdraw from negotiations, that the applicant does not know the role of the Secretary General in the negotiations of signing the Agreement.
Agaba still said that, the negotiations are spearheaded by the Heads of State and therefore the SG cannot be directed to withdraw from the negotiations. Further, that there are no negotiations going on, they were concluded and now on the level of signing and ratification and so the 7th Respondent from something that is not taking place. That they find the order sought misplaced and so be dismissed.
The Court will deliver its ruling on notice.
The matter was before Honorable Mr. Justice Isaac Lenaola (Deputy Principal Judge), Honorable Dr. Justice Faustin Ntezilyayo, Honorable Mr. Justice Fakihi A. Jundu
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