DETERMINATION OF THE APPLICATION
We have carefully considered the evidence, the submissions as well as the
applicable law on the subject. The following are our findings and conclusions:
Article 30 (2) of the Treaty provides that:
“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 absence thereof , of the day in which it
came to the knowledge of the complainants, as the case may be”.
This Court is alive to the strict limitations imposed by this provision. We also
agree with the Respondents that proceedings can only be brought within two
months of the unlawful act or infringement complained of, or of the day the
complainant became aware of it.
The facts of the instant Reference, however, present us with the kind of
unlawful acts, or treaty infringements which, if proved would, in our view,
obviously be continuous and not capable of mathematical computation of time.
This can be discerned from Paragraphs 5 and 6 of the Reference which state
that:
“5.On diverse dates between 22nd July 2010 and 17 September
2010 the Applicants were captured and abducted from various
locations in the Republic of Kenya by officers from the Kenyan and
Ugandan Police respectively in collaboration with officers/officials
acting on behalf of the United States of America, Federal Bureau of
Investigation (FBI) and were, after being illegally detained in
various police stations in Kenya (without charge) for periods
between 3 and 6 days, spirited across the border to Uganda in what
is notoriously referred to as “rendition”.
“6. Upon rendition as aforesaid todate the Applicants have been
shuffled between various locations, forests, police stations, military
barracks/camps and prisons under the directions of the 2nd
6