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as well. That Article 30 should be interpreted to bring persons who commit misfeasance and who infringe the provisions of the Treaty, within the ambit of Article 30, to account for their actions. This is what the Court said:‐ “With due respect to Counsel for the Applicants, it appears to us that enjoining the 2nd, 5th and 6th Respondents to the reference was under a misconception. A reference under Article 30 of the Treaty should not be construed as an action in tort brought by a person injured by or through the misfeasance of another. It is an action to challenge the legality under the Treaty of an activity of a Partner States or of institutions of the Community. The alleged collusion and connivance, if any, is not actionable under Article 30.” The preliminary objection was upheld and the said Respondents were struck off the reference with costs. In the case of Modern Holdings (supra), Court once again upheld an objection where the Respondent was not an institution or a Partner State of the Community. Similarly in this case, we are satisfied that the 2nd, 3rd and 4th Respondents were wrongly joined to the Reference and we order that they be struck off with costs. 4 Cause of Action Against the 5th Respondent 8

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Jurisdiction3
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03/10 Independent Medical Unit v Attorney General of Kenya & 4 Others

EACJ Decision

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Type of Document

Ruling

Country

State Agent

Keywords

Right to Fair Trial

Year Decided: Jun 29, 2011

Rights Violated (EACJ Treaty Provisions)

None Indicated

Duration of Procedure: ~ Jun 29, 2011

Primary Documents

03_10 Independent Medical Unit v Attorney General of Kenya & 4 Others.pdf
English
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Treaty for the Establishment of the East African Community

ARTICLE 30Reference by Legal andNatural Persons1.Subject to theprovisions of Article 27 of this Treaty,any person who is resident in a Partner State may refer for determination by the Court, the legality of any Act,regulation, directive, decision or action of a Partner State or aninstitution of the Community on the grounds that such Act, regulation, directive, decision or action is unlawful or isan infringement of the provisions of this Treaty.2.The proceedings provided for in this Article shall be instituted within two monthsof the enactment, publication, directive, decision or action complained of, or in the absence thereof, of the day in which it came to the knowledge of the complainant, as the case may be;3.The Court shall have no jurisdiction under this Article where an Act, regulation, directive, decision or action has been reserved under this Treaty to an institution of a Partner State.

Treaty

Treaty for the Establishment of the East African Community

Treaty

Treaty for the Establishment of the East African Community

Treaty

Treaty for the Establishment of the East African Community

Treaty

Treaty for the Establishment of the East African Community

Treaty

Treaty for the Establishment of the East African Community

ARTICLE 27Jurisdiction of the Court1.The Court shall initially have jurisdiction over the interpretation and application of this Treaty:Provided that the 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. 302.The Court shall have such other original, appellate, human rights and other jurisdictionas will be determined by the Council at a suitable subsequent date. To this end, the Partner States shall conclude a protocol to operationalise the extended jurisdiction

Treaty

Treaty for the Establishment of the East African Community

Treaty

Treaty for the Establishment of the East African Community

ARTICLE 7Operational Principles of the Community1.The principles that shall govern the practical achievement of the objectives of the Community shall include:(a)people-centeredand market-driven co-operation; 14(b)the provision by the Partner States of an adequate and appropriate enabling environment, such as conducive policies and basic infrastructure;(c)the establishment of an export oriented economy for the Partner States in which there shall be free movement of goods, persons, labour, services, capital, information and technology;(d)the principle of subsidiarity with emphasis on multi-level participation and the involvement of a wide range of stake-holders in the process of integration;(e)the principle of variable geometry which allows for progression in co-operation among groups within the Community for wider integration schemes in various fields and at different speeds;(f)the equitable distribution of benefits accruing or to be derived from the operations of the Community and measures to address economic imbalances that may arise from such operations;(g)the principle of complementarity; and(h)the principle of asymmetry.2.The Partner States undertake to abide by the principles of good governance, includingadherence to the principles of democracy, the rule of law, social justice and the maintenance of universally accepted standards of human rights

Treaty

Treaty for the Establishment of the East African Community

ARTICLE 6Fundamental Principles of the CommunityThe fundamental principles that shall govern the achievement of the objectives of the Community by the Partner States shallinclude:(a)mutual trust, political will and sovereign equality;(b)peaceful co-existence and good neighbourliness;(c)peaceful settlement of disputes;(d)good governance including adherence to the principles of democracy, the rule of law, accountability, transparency, social justice, equal opportunities, gender equality, as well as the recognition, promotion and protection of human and peoples rights in accordance with the provisions of the African Charter on Human and Peoples’ Rights;(e)equitable distribution of benefits; and(f)co-operation for mutual benefit.

Treaty

African Charter on Human and Peoples' Rights

Article 71.Every individual shall have the right to have his cause heard. This comprises: (a) the right to an appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force; (b) the right to be presumed innocent until proved guilty by a competent court or tribunal; (c) the right to defense, including the right to be defended by counsel of his choice; (d) the right to be tried within a reasonable time by an impartial court or tribunal. 2.No one may be condemned for an act or omission which did not constitute a legally punishable offence at the time it was committed. No penalty may be inflicted for an offence for which no provision was made at the time it was committed. Punishment is personal and can be imposed only on the offender.

Treaty

Treaty for the Establishment of the East African Community

Treaty

Treaty for the Establishment of the East African Community

Treaty

Treaty for the Establishment of the East African Community

ARTICLE 4Legal Capacity of the Community1.The Community shall have the capacity, within each of the Partner States, of a body corporate with perpetual succession, and shall have power to acquire, hold, manage and dispose of land and other property, and to sue and be sued in its own name.2.The Community shall have power to perform any of the functions conferred upon it by this Treaty and to do all things, including borrowing, that are necessary or desirable for the performance of those functions.3.The Community shall, as a body corporate, be represented by the Secretary General.

Treaty

Treaty for the Establishment of the East African Community

ARTICLE 5Objectives of the Community1.The objectives of the Community shall be to develop policies and programmes aimed at widening and deepening co-operation among the Partner States in political, economic, social and cultural fields, research and technology, defence, security and legal and judicial affairs, for their mutual benefit.2.In pursuance of the provisions of paragraph 1 of this Article, the Partner States undertake to establish among themselves and in accordance with the provisions of this Treaty, a Customs Union, a Common Market, subsequently a Monetary Union and ultimately a Political Federationin order to strengthen and regulate the industrial, commercial, infrastructural, cultural, social, political and other relations of the Partner States to the end that there shall be accelerated, harmonious and balanced development and sustained expansion of economic activities, the benefit of which shall be equitably shared.3.For purposes set out in paragraph 1 of this Article and as subsequently provided in particular provisions of this Treaty, the Community shall ensure:(a)the attainment of sustainable growth and development of the Partner States by the promotion of a more balanced and harmonious development of the Partner States;(b)the strengthening and consolidation of co-operation in agreed fields that would lead to equitable economic development within the Partner States and which would in turn, raise the standard of living and improve the quality of life of their populations;(c)the promotion of sustainable utilisation of the natural resources of the Partner States and the taking of measures that would effectively protect the natural environment of the Partner States;(d)the strengthening and consolidation of the long standing political,economic, social, cultural and traditional ties and associations between the peoples of the Partner States so as to promote a people-centeredmutual development of these ties and associations;(e)the mainstreaming of gender in all its endeavours and the enhancement of the role of women in cultural, social, political, economic and technological development; 13(f)the promotion of peace, security, and stability within, and good neighbourliness among, the Partner States; (g)the enhancement and strengthening of partnerships with the private sector and civil society in order to achieve sustainable socio-economic and political development; and(h)the undertaking of such other activities calculated to further the objectives of the Community, as the Partner States may from time to time decide to undertake in common

Treaty

Treaty for the Establishment of the East African Community

Treaty

Treaty for the Establishment of the East African Community

Treaty

Treaty for the Establishment of the East African Community

Treaty

The East African Court of Justice Rules of Procedure 2013

24. (1) A reference by a Partner State, the Secretary GeneralReferencesor any person under Articles 28, 29, 30 respectively of the Treatyshall be instituted by lodging in the Court a statement of reference.(2) A statement of reference under sub-rule (1) shallstate—(a)the name, designation, address and where applicable residence of the applicant; (b)the name, designation, address and where applicable residence of the respondent; (c)the subject-of the reference and a summary of the points of law on which the application is based; (d)where appropriate, the nature of any evidence offered in support; (e)the relief sought by the applicant. (3)Where the reference seeks the annulment of an Act, regulation, directive, decision or action, the statement of reference shall be accompanied by documentary evidence of the same. (4)Where the reference is made by a body corporate the statement of reference shall be accompanied by documentary evidence of the existence in law of that body corporate. (5)The Applicant shall serve on every respondent named in the reference and where applicable on the Secretary General a notification of the reference and a copy of the statement of reference.

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