Thirdly, Counsel submitted that the matter is inadmissible in this Court since the
Claimants have not exhausted the local remedies available in the Republic of
Kenya.
Fourthly, it was Counsel’s contention that the Treaty has no provision for
retrospective application. The matters complained of occurred well before the
Treaty entered into force in 2000.The Reference is therefore wrongly brought
before this Court which cannot entertain it since the Court itself is a creature of
the Treaty.
Fifthly, Counsel attacked the Reference for being vague without any proof.
Lastly, Counsel contended that Article 5 of the Treaty is about the Objectives of
the Treaty, it cannot be used by the Claimants to bring a reference under Article
6(d) and 7(2) for previous injustices, if any.
Consequently, he prayed that the Reference be struck out with costs.
RESPONSE BY CLAIMANTS’ COUNSEL
Counsel for the Claimants opposed the objections strongly asserting that this
Court has the jurisdiction to hear and determine the Reference. He contended,
firstly, that the Reference is not about human rights violations or an appeal
against the decision of the Kenya High Court as alleged. He argued that the
Reference concerns the breach of Articles 6(d) and 7 (2) of the Treaty by the
Kenya Government and the fact that it contains allegations of violation of human
rights under the conventions cited therein cannot prevent this Court from
handling the Reference. In support of this stance he cited the decision of this
Court in Reference No.1 of 2007, James Katabazi and 21 Others vs The Attorney
General of the Republic Of Uganda.
Secondly, he disagreed that the matter was barred by the doctrine of res judicata
since the issues before this Court are not similar or directly and substantially in
issue before the Kenya High Court and Counsel for the claimants had not even
shown that they were the same litigants in both suits.
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