The Court further pointed out in Reference that:
“Article 33(2) appears to envisage that in the course of determining a case
before it, a national court may interpret and apply a Treaty provision.
Such envisaged interpretation, however, can only be incidental. The
Article neither provides for nor envisages a litigant directly referring a
question as to the interpretation of a Treaty provision to a national court.
Nor is there a provision directly conferring on the national court’s
jurisdiction to interpret the Treaty. Article 30 on the other hand, confers
on a litigant resident in a partner state the right of direct access to the
Court for determination of the issues set out therein. We, therefore, do
not agree with the notion that before bringing a Reference under Article
30, a litigant has to “exhaust the local remedy”. In our view there is no
local remedy to exhaust.’’ (Underlining added for emphasis).
We share the same view and accordingly, overrule this objection as well.
4. The Retrospective Application of the Treaty.
The Vienna Convention on the Law of Treaties provides in Article 28 that:
“Unless a different intention appears from the Treaty or is otherwise
established, its provisions do not bind a party in relation to any act or fact
which took place or any situation which ceased to exist before the date of
the entry in force of the treaty with respect to that party”.
According to the above provisions, a treaty cannot be applied retrospectively
unless a different intention appears from the treaty, or is otherwise established. In
the absence of a contrary intention therefore, a treaty cannot apply to acts or
facts which took place or situations which ceased to exist before the date of its
entry into force.
Form the pleadings on record, it is clear that the Claimants became aware of the
acts/omissions of the Respondent complained of by 1998, when they filed the suit
in the Kenya High Court. That was well before the Treaty entered into force in
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