PERSONS IN UGANDA

(b)
(c) abstain from any measures likely to jeopardise the achievement of those
objectives or the implementation of those of this Treaty.
The governing principles under the Treaty are very important. They are the
fundamentals upon which the system is supposed to run. The emphasis on good
governance and the rule of law alone would imply an introduction of human rights
into the Treaty as it concerns the treatment of citizens and subjects, but the treaty
also specifically mentions human rights. The Treaty enjoins partner states to abide
by the international human rights standards set by the different international human
rights instruments that they are party to. There is specific mention of the African
Charter on Human and Peoples’ Rights (The African Charter). The African Charter
protects rights of LGBTI persons as will be discussed in the next section. The treaty
also mentions adherence to accepted international human rights standards, which as
will be discussed in the next section, provide protection to LGBTI persons.
The East African Court of Justice (EACJ) is provided for under Article 27 of the East
African Treaty. It is responsible for the interpretation and implementation of the
Treaty. According to Article 27, the initial jurisdiction of the court is over interpretation
and application of the treaty. Extended jurisdiction, which includes among others
jurisdiction over human rights is to be determined by the Council of Ministers and
a protocol passed by partner states to operationalise it. So, the court does not have
a human rights jurisdiction. However, the Court has made pronouncements to the
effect that it can entertain human rights matters if they concern violations of the
Treaty principles. In Katabazi and others vs. Secretary General of the East African
Community and Another (Uganda), 49 the court’s jurisdiction over human rights
complaints was directly in issue. The court observed that the court does not have
a human rights jurisdiction. That such a jurisdiction requires determination by the
Council and adoption of a protocol by the partner states. However the court declined
to shy away from hearing the case reasoning that Article 27 empowers it to interpret
and apply objectives and fundamental and operational principles of the Community
enshrined in Articles 5, 6 and 7 of the Treaty which enjoin states to observe good
governance, rule of law and social justice.
This was further discussed in the case of Attorney General of Rwanda v Plaxeda
Rugumba 50 in which the government of Rwanda appealed a decision made by the court
against it on grounds that the court lacked jurisdiction. The First instance division of
the court had held that the government of Rwanda had violated different rights of
the applicant and her brother contrary to the Treaty and the African Charter. The
Attorney General of Rwanda appealed contending that the court had no jurisdiction
over matters concerning human rights violations. The appellate chamber held that
although the court does not yet have jurisdiction to adjudicate disputes concerning
human rights per se, Article 6(d) of the treaty allow the court to assert jurisdiction
over such claims when they concern the basic principles of the Treaty.
From the above judgment, the court acknowledged that breach of principles of good
governance and the rule of law in Articles 6(d) and 7(2) of the Treaty entitled the court
to investigate such breach and that these Articles also gave the court jurisdiction to
interpret whether the state had promoted or protected human and peoples’ rights in
49 (2007) AHRLR 119 (EAC 2007).
50 Appellate Division, Appeal No 1 of 2012.
39