74. The Applicant’s right to redress was guaranteed by Article 54 of the Protocol.
The Article provides that:
i) in accordance with their Constitutions, national laws and
administrative procedures and with the provisions of this
Protocol, Partner States guarantee that:
a)
any person whose rights and liberties as
recognized by this Protocol have been infringed
upon, shall have the right to redress, even
where this infringement has been committed by
persons acting in their official capacities; and
b)
the
competent
judicial,
administrative
or
legislative authority or any other competent
authority, shall rule on the rights of the person
who is seeking redress.
75. Discussing the import of a similar provision the European Court of
Justice in State v Royer Case 48/75, held that:
a decision ordering the deportation of a Community alien may not
be carried out, save in cases of urgency which have been properly
justified, against a person protected by Community law until the
latter has been able to exhaust the remedies guaranteed by
Articles 8 and 9 of Directive 64/221.
76. The combined effect of this very persuasive authority and the import of Article
54 of the Protocol, reproduced above, regarding the instant Reference is that
the immigration officials had, foremost, an obligation to strictly apply the
limitations of the freedom of movement, given its importance to the East
African Community Common Market in particular, and integration in general.
REFERENCE NO.5 OF 2011
Page 35