Businessman tasks EAC over EPA stalemate

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TANZANIAN resident Castro Shirima has lodged a notice of appeal against refusal by the East African Court of Justice to stay the process by East African Community (EAC) member states from signing and ratifying the Economic Partnership Agreement (EPA) with European Union.

Through his agent, Tanzanian businessman Moto Mabanga, Mr Shirima filed the notice last week with a view of taking the matter to the East African Court of Justice (EACJ), Appellate Division, for further determination.

This highly contested part of the Court’s decision was given by Justices Isaac Lenaola, Faustin Ntezilyayo and Fakihi Jundu, on the first instance on July 6, 2017. During hearing of application for stay, Mr Mabanga had featured in the proceedings and gave submissions for Mr Shirima.

“The appellant, being dissatisfied with the ruling and order of Isaac Lenaola, Faustin Ntezilyayo and Fakihi Jundu delivered at Arusha on July 6, 2017, intends to appeal to the Appellate Division of the East African Court of Justice against part of the said decision,” reads part of the notice.

Mr Mabanga clarifies that as agent of the appellant, he was deeply aggrieved by the EACJ decision because the Court erred on the fundamental question, broadly set out in clause 6(a) and (f) of the Treaty of the Establishment of the East African Community.

In this landmark decision, the justices refused to grant some injunctive orders for EAC member states to continue with other processes relating to the signing of EPA agreement pending determination of the application for reference in question.

They analyzed three conditions upon which such orders could be granted, including the applicant to show a prima facie case with a probability of success, irreparable injury he may suffer which would not adequately be compensated and the balance of convenience.

During hearing of the application, Mr Mabanga had submitted that EAC partner states which have not signed the EPA agreement should be prevented from signing it because he stands to suffer irreparable economic loss and serious violation of his rights under the Treaty.

He had contended that the injury should be considered not at individual level, but at a regional level. It was his further contention that the way some partner states had acted individually in signing EPA was harmful to the community and to the East African economy.

However, when the justices pressed on him to expound on the irreparable economic loss and the violation of the rights he stood to suffer, the applicant was unable to make the link between the impugned signing of the EPA and the alleged irreparable harm that the signing would cause.

In the same decision, however, the justices found that the Court has jurisdiction to entertain the application for reference against EPA signing agreement and that there is a serious question that Mabanga had raised which needed to be determined.

The justices overruled two grounds of objections presented by Attorney Generals of Kenya and Tanzania, who had contended that the application did not disclose specific cause of action since Tanzania had not signed the EPA and there was no indication that it intended to sign it.

They noted that the appellant had alleged in his application that signing EPA agreement by Rwanda and Kenya had violated and will continue to violate the EAC Treaty if signed by the remaining countries of Tanzania, Uganda, Burundi and South Sudan.

“Under Article 27 (1) of Treaty, this court has jurisdiction over interpretation and application of the Treaty. This court has previously held that interpretation of question whether Article 6 (d) and 7 (2) of the Treaty has been violated falls within the Court’s jurisdiction,” they stated.

On the question of disclosure of cause of action, the justices noted the 17th Extra-ordinary EAC Summit of Heads of State being seized with the matter on signing the EPA agreement and decided to hold the process pending further consultations on the subject.

“It is clear that there is a live issue to be determined as to whether the remaining partner states, Tanzania included, should be stopped from signing EPA pending determination of the reference. We are satisfied both reference and application disclose cause of action,” they ruled.

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