36. The Respondent submitted that the provisions of Articles 6 (d) of the Treaty
are aspirations and broad policy provisions which are futuristic and
progressive in application and that they raise political questions which cannot
be answered by this Court. Further, that they are not capable of being
breached and, therefore, are not justiciable. We find this stance erroneous for
the following reasons:
i)
Article 6 provides the six Fundamental Principles of the
Community. Black’s
Law Dictionary defines “Principle” as “a basic rule, law or
doctrine”.(9th Edition at p 1313)
Our understanding of
“Fundamental Principles” as used in this Article, aided by the
above definition, is that these are rules that must be followed or
adhered to by the Partner States in order that the objectives of
the Community are achieved.
Paragraph 11 of the Preamble to the Treaty provides that the
Partner States are;
“resolved to adhere themselves to the fundamental
and operational principles that will govern the
achievement of the objectives...”
Article 146(1) of the Treaty provides, inter alia, that a Partner State
may be suspended from taking part in activities of the
Community if that State fails to observe and fulfil the
fundamental principles and objectives of the Treaty.
Article 147(1) provides, inter alia, that a Partner State may be
expelled from the Community for gross and persistent violation
of the principles and objectives of the Treaty.
REFERENCE NO.5 OF 2011
Page 16