17 September 2015 – [On] 9 August 2015[ the] First Instance Division heard a matter that was adjourned a day before as the Court was ready to hear evidence in the case filed by Hon. Margaret Nantongo Zziwa former Speaker of EALA versus the Secretary General of the East African Community alleging that the process of her removal from the Office of EALA Speaker alleging was illegal and an infringement of Articles 53 and 56 of the Treaty for the Establishment of the East African Community.
Representing the Secretary General of the Community, Mr Agaba Stephen raised a preliminary objection on an issue of law premised on Section 20 of the East Africa Legislative Assembly (Powers and Privileges) Act 2003; the gist of which was that the Applicant (Hon. Margaret Nantongo Zziwa) and her witnesses were members and/or officers of the East African Legislative Assembly but had not secured leave from the Assembly to adduce evidence before the Court.
He submitted that Article 61 (1) and (2) of the Treaty on Powers, Privileges and Immunities of the Assembly and its Members provides that the Members of the Assembly shall be immune from legal action for any acts of omission or commission in the discharge of their functions under the Treaty and that the Community enacted legislation for the powers, privileges and immunities of the Assembly and members for the orderly and effective discharge of business of the Assembly as provided under the Article. Mr. Agaba further said that it is the intension of the Community to preserve the sanctity of the Assembly and protect the principle of separation of powers and in order to protect that, the Members and Officers of the Assembly need leave of the Assembly in order to give evidence in Court.
Mr. Agaba also argued that Sec 20 of the EALA Powers and Privileges does not contravene the Treaty and added that the list of witnesses which was submitted comprised of only Members of EALA. He asked Court that in order to proceed to hear the evidence in Chief of the Applicant’s witnesses (Hon. Zziwa), the Court should be satisfied that Section 20 of the Act should be complied with.
The Applicant represented by Mr. Justin Semuyaba argued that Section 20 of the Act mentioned above was enacted in 2003 after the Treaty was established and that it cannot override the Treaty. He further said that the Applicant has accessed the Court under Article 30 of the Treaty and therefore Sec 20 can’t override the rights the Applicant enjoys under Article 6 on the Principles of the Community. Mr. Ssemuyaba further said that the Applicant has the right to present her case, bring her witnesses to Court and Court makes a decision and that she cannot be locked out under Sec 20 of the EALA Powers and Privileges Act 2003.
He also argued that the Court has all the powers to allow her to bring witnesses and give evidence to get natural Justice. Mr. Semuyaba again said that the objections being raised by the Respondent are meant to block, delay or finally deny her justice and asked the Court to allow the case to go on. That the witnesses be allowed to give evidence so that the matter can be heard and dispensed with under the proper Rules of Natural Justice. He added that the Respondents also have the rights to present their witnesses. Mr. Semuyaba further stated that the Respondent has the intension to call witnesses to rebut the evidence of the Applicant and those witnesses are Members of the Assembly and yet he is denying the Applicant to bring her witnesses when the subject of the litigation are the very matters that happened in the Assembly.
Mr. Semuyaba asked Court to disregard the objection of the Respondent and dismiss it with costs.
This issue on Section 20 of the EALA Powers and Privileges Act 2003 came up the day before when the Court was ready to hear evidence and the Court ruled that the preliminary objection had not been properly brought before it as provided by Rule 41 (2) of the Court’s Rules of Procedures that requires notice to the Court and the other party in the case. The Court directed the Counsel for the Respondent (Agaba) to comply with the provisions of the said Rule and file a Notice of Preliminary Objection before the Court could hear arguments by both Parties.
The Court had also directed the Clerk of the East African Legislative Assembly to appear in Court as one of the witnesses who was required to give evidence but he was not present in Court.
The subject of the matter, is that the Applicant (Zziwa) alleges that in contravention of Articles 53 and 56 of the Treaty, Rule 9 and Annex 3 of the Rules of Procedure of EALA and Rule of law, on 26th November, 2014 some members of EALA convened in the Assembly chambers, summoned the Clerk of the Assembly to “preside over the Assembly”, re-instated a motion/process of removal of the Speaker, referred the motion to the Committee on Legal, Rules and Privileges for investigations, “ suspended” the Speaker/Applicant from exercising the functions of the office of Speaker and appointed one of them to preside over the proceedings. That the Committee’s action of conducting investigations on a non-existing motion was an illegality. That the Committee as constituted for the purposes of investigations was improper and breached the rules of natural justice, specifically the rule against bias.
In February 2015 the Court allowed Hon. Margareth Nantongo Zziwa to withdraw her Application seeking to stop her impeachment from the Office of the Speaker because the prayers sought had been over taken by events and the Assembly had elected a new Speaker.
The matters came before a bench of the Judges of the First Instance Division composed of Honourable Lady Justice Monica Mugenyi (Principal Judge), Justice Isaac Lenaola (Deputy Principal Judge), Justice Dr. Faustin Ntezilyayo, Justice Fakihi A . Jundu and Justice Audace Ngiye in open Court.
The Court will deliver its Ruling on notice
Notes for editors
Sec 20 of the East African Legislative Assembly Powers and Privileges Act, 2003 provides that;
(1) Notwithstanding the provisions of any other law, no member or officer of the Assembly and no person employed to take minutes or record evidence before the Assembly or any Committee shall, except as provided in this Act, give evidence else-where in respect of the contents of such minutes or evidence or of the contents of any documents laid before the Assembly or such Committee, as the case may be, or in respect of any proceedings or examination held before the Assembly or such Committee, as the case may be, without the special leave of the Assembly first had and obtained in writing.
(2) The special leave referred to in subsection (1) may be given during recess or adjournment by the Speaker or in his absence or incapacity or during any dissolution of the Assembly by the Clerk.
Rule 41 (2) of the East African Court of Justice Rules of Procedures 2013 provides that;
(2) Where a respondent intends to raise a preliminary objection he shall, before the scheduling conference under Rule 53 of these Rules, give not less than seven (7) days written notice of preliminary objection to the Court and to the other parties of the grounds of that objection.
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