42. It is erroneous to refer to the current situation of the Respondents as unlawful
detention. This is for two reasons: first, the Respondents went before the courts of
Kenya upon their arrest; and right now, they are currently before the competent courts
in Uganda duly charged and awaiting trial. Second, it is for the courts of law, not anyone
else, to judge whether or not a detention is unlawful. Lastly, the illegality of the
Respondents’ detention cannot be determined by the alleged abuse of process in
effecting their arrest and rendition.
43. We note in particular, that both the arrest and the rendition were proximate. Both
happened simultaneously, virtually on the same date(s) — dates of which the respective
Respondents were fully aware: a fact which the Respondents have not and cannot deny
or contest. On the contrary, they have conceded as much. It was precisely because of
this knowledge that the Respondents had their matters brought promptly to the Kenyan
courts (and subsequently to the Ugandan courts). Alas, later the same Respondents
came to this Court to file their complaint, but too late: approximately one year after the
expiry of the time limit of two months prescribed in Article 30 (2) of the Treaty.
44. In the instant case, both parties including the Court itself recognize that the
Respondents were arrested in one country and rendered to another without the
intervening process of extradition. But whether this was unlawful and whether any such
unlawfulness has affected or tainted the Respondents’ initial and even current
detention, are matters to be decided by the courts, including this Court, on the merit of
the case. Cleary, under our law, such merits can only be gone into by this Court if the
Respondents are able to surmount the preliminary but formidable hurdle of the time bar that is prescribed by Article 30 (2).
DETENTION AS A CONTINUING VIOLATION AND THE PRINCIPLE OF LEGAL
CERTAINTY IN LIGHT OF THE MEANING OF ARTICLE 30 (2).
45. The Court finds also that the situation of the Respondents in the instant case is quite
different from the situation of the Plaxeda Rugumba case (supra). In the Rugumba
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