the African Charter on Human and Peoples’ Rights, he qualifies it with “as
recognised by Article 6(d) and 7(2) of the Treaty”. In effect, we understand the
cause of action in his case to be the alleged infringement of a Partner State’s
Treaty obligations which we find to be a matter which lies outside the province
of human rights. -see Attorney General of Uganda v Omar Awadh (supra).
31. What matters, in our view, is that the Application seeks that this Court
determines whether the actions and decisions of the Respondent were an
infringement of specific Treaty provisions. It is the interpretation and
application of these provisions in order to determine whether the impugned
actions and decisions are infringements that provides the jurisdiction of this
Court under Article 27(1).
32. Consequently, we think the Applicant has passed the test established by the
Appellate Division of this Court in the IMLU Case (supra). It is not violations of
human rights under the Constitution and other laws of Uganda or of the
international community that is the cause of action in the Reference, rather the
cause of action is constituted by allegations of infringements of specific Treaty
provisions by the Ugandan Government. Applying the IMLU test to the present
case, as the Respondent urged us to do, we do find, indeed, that the Treaty
provisions alleged to have been violated have, through Uganda’s voluntary
entry into the EAC Treaty, been scripted, transformed and fossilised into
several principles, obligations and treaty guarantees now stipulated in, among
others, Articles 6(d), 7(2), 104 of the Treaty and 7 of the Protocol, breach of
any of which by Uganda would give rise to infringement of the Treaty. It is that
alleged infringement which, through interpretation of the Treaty under Article
27(1) constitutes the cause of action in the instant Reference, and
consequently, establishes the legal foundation of the jurisdiction of this Court
in this Reference.
REFERENCE NO.5 OF 2011
Page 14