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126
Katabazi and Others v Secretary-General of the EAC and Another
(2007) AHRLR 119 (EAC 2007)
[37.] Article 7 spells out the operational principles of the Community
which govern the practical achievement of the objectives of the
Community in sub-article (1) and seals that with the undertaking by
the partner states in no uncertain terms of sub-article (2):
The partner states undertake to abide by the principles of good
governance, including adherence to the principles of democracy, the
rule of law, social justice and the maintenance of universally accepted
standards of human rights (emphasis added).
[38.] Finally, under article 8(1)(c) the partner states undertake,
among other things, to: ‘Abstain from any measures likely to
jeopardise the achievement of those objectives or the
implementation of the provisions of this Treaty.’
[39.] While the Court will not assume jurisdiction to adjudicate on
human rights disputes, it will not abdicate from exercising its
jurisdiction of interpretation under article 27(1) merely because the
reference includes allegation of human rights violation.
[40.] Now, we go back to the substance of this reference. As we have
already observed in this judgment, the 2nd respondent has conceded
the facts which are the subject matter of this reference and, so, they
are not in dispute. He has only offered some explanation that the
surrounding of the Court, the re-arrest, and therefore, the nonobservance
of the grant of bail, and the re-incarceration of the
complainants were all done in good faith to ensure that the
complainants do not jump bail and go to perpetuate insurgency.
[41.] Mr Ogalo invited us to find that explanation unjustified because
it was not supported by evidence. We agree with him and we would
go further and observe that ‘the end does not justify the means’.
[42.] The complainants invite us to interpret articles 6(d), 7(2) and
8(1)(c) of the Treaty so as to determine their contention that those
acts, for which they hold the 2nd respondent responsible,
contravened the doctrine of the rule of law which is enshrined in
those articles.
[43.] The relevant provision of article 6(d) provides as follows:
The fundamental principles that shall govern the achievement of the
objectives of the Community by the partner states shall include good
governance including adherence to the principles of democracy, the
rule of law, accountability, transparency, social justice, equal
opportunities, gender equality, as well as the recognition, promotion
and protection of human and peoples’ rights in accordance with the
provisions of the African Charter on Human and Peoples’ Rights
(emphasis added).
The starting point is what does rule of law entail? From Wikipedia, the
Free Encyclopaedia:
The rule of law, in its most basic form, is the principle that no one is
above the law. The rule follows logically from the idea that truth, and
therefore law, is based upon fundamental principles which can be
discovered, but which cannot be created through an act of will
(emphasis added).
African Human Rights Law Reports