42. In holding as above, we are aware that the issue of jurisdiction has been
settled in previous decisions of this Court. In Anyang’ Nyong’o and
Others vs. Attorney General of Kenya and Others [supra] for example,
the Court stated that:“Under Article 33(2), the Treaty obliquely envisages interpretation
of Treaty provisions by National Courts. However, reading the
pertinent provision with Article 34 leaves no doubt about the
primacy, if not supremacy of this Court’s jurisdiction over the
interpretation of provisions of the Treaty. For clarity, it is useful
to reproduce here, the two Articles in full.
Article 33 provides:1. Except where jurisdiction is conferred on the Court by
Treaty, disputes in which the Community is a party shall not
on that ground alone, be excluded from the jurisdiction of
the national courts of the Partner State; and
2. Decisions of the Court on the interpretation and
application of this Treaty shall have precedence over
decisions of national courts on a similar matter.
Article 34 provides:Where a question is raised before any court or tribunal of a
Partner State concerning the interpretation or application of
the provisions of this Treaty or the validity of the
regulations,
directives,
decisions
or
actions
of
the
Community, that court or tribunal shall, if it considers that a
ruling on the question is necessary to enable it to give
judgment, request the Court to give a preliminary ruling on
the question.
Reference No. 5 of 2013
Page 12
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