Kyomuhendo and Another v Attorney General of the Republic of Uganda (Reference No.16 of 2020) [2024] EACJ 8 (10 October 2024) (First Instance Division)


IN THE EAST AFRICAN COURT OF JUSTICE AT ARUSHA **FIRST INSTANCE DIVISION**


(*Coram*: *Yohane B. Masara, PJ; Charles O. Nyawello, DPJ; Richard Muhumuza,* Gacuko Leonard & Kayembe Ignace René, JJ)

#### **REFERENCE NO. 16 OF 2020**

# <table> ADAM KYOMUHENDO .................................... INDIGENEOUS PEOPLES STRATEGY FORUM .... 2<sup>nd</sup> APPLICANT

**VERSUS**

THE ATTORNEY GENERAL OF THE REPUBLIC OF UGANDA ............................ RESPONDENT

10<sup>th</sup> OCTOBER 2024

### **REASONEDJUDGEMENTOFTHECOURT**

### **A. INTRODUCTION**

- 1. The instant Reference was filed by the Applicants on 11 th June 2020 under Articles 5(1 ), (3)(a) and (d), 6(d), 7(1 )(a) and (2), 8(1 )(a) and (c), 23, 27, 30, 38(2), 39,111,114, 119(c) and (f), 123(3)(c), 130(1) and (4) of The Treaty for the Establishment of The East African Community ("the Treaty") and Rules 4, 25 and 27 of the East African Court of Justice Rules, 2019 ("the Rules"). - 2. The 1st Applicant, Mr Adam Kyomuhendo, is an adult male Ugandan citizen and resident of the Republic of Uganda. The 2nd Applicant is a nonprofit think tank Organisation and is represented by the 1st Applicant. The Applicants' address of service for the purpose of the Reference is **c/o M/5 Parkhill Advocates, 2nd Floor, Suite C4, Block C, Rovis Apartments, Plot 49, Ntinda Road.** - 3. The Respondent is the Attorney General of the Republic of Uganda, sued in his official capacity as the Principal Legal Advisor of the Government of the Republic of Uganda, a Partner State of the East African Community. His address of service is: **c/o Ministry of Justice and Constitutional Affairs, Plot 7, Parliamentary Avenue, Bauman House, P. O Box 7183, Kampala-Uganda.** - 4. On 1st March 2024, the Court dismissed the said **Reference No. 16 of 2020** and reserved its Reasoned Judgement to be delivered on a date to be notified to the Parties. - 5. This Judgement, therefore, is the Reasoned Judgement stating the basis of the Court's decision rendered on 1st March 2024.

## **B. REPRESENTATION**

6. At the Scheduling Conference held on 1st March 2024, Mr Adam Kyomuhendo appeared in person on his own behalf and also on behalf of the 2nd Applicant, while the Respondent was represented by Mr Wanyama Kodoli, Principal State Attorney and Ms Kokunda Claire, Senior State Attorney.

# **C. BACKGROUND**

- 7. The actions that form the subject matter of the Reference pertain to the proposal and preliminary measures undertaken by the Government of the Republic of Uganda to establish a geothermal electricity project at the Kibiro Hot Springs, a site and village renowned for its Ancient Salt Manufacturing Works, situated in Kigorobya Sub- County, Hoima District, within the Republic of Uganda. - 8. The dispute arose in 2019 when the Ministry of Energy and Mineral Development (MEMO) of Uganda contracted with Messrs Royal Techno Industries Limited to drill for geothermal energy at Kibiro Hot Springs Village. - 9. The Applicants state that the Respondent violated the Treaty by failing to protect the environment and the rights of indigenous communities. - 10. That, on 29th March 2020, an accidental discharge of drilling fluids occurred at the project site. The Applicants allege that this incident caused significant environmental damage and threatened the livelihoods of local residents.

- 11. The Applicants further state that the construction of the geothermal plant will destroy the ecosystem, scenic beauty, religious integrity, sacred sites and the viability of the Kibiro community. - 12. In response to the perceived urgency and the imminent threat allegedly posed by the Respondent in contravention of the Treaty, the Applicants filed this Reference seeking to halt the geothermal project. At the same time the Applicants lodged, under a certificate of urgency, **Application No. 16 of 2020,** arising from this Reference, seeking an interim injunction to restrain the Respondent and its agents from evicting the people of Kibiro, the Kingdom and the people of Bunyoro Kitara from their ancestral lands, or from undertaking any activities that would, by implication, achieve such eviction, pending the hearing and determination of the Reference. - 13. Upon hearing, the Court found the Application incompetent and dismissed it in its entirety on technical grounds stated herein.

#### **D. THE APPLICANT'S CASE**

- 14. The Applicants' case is set out in the Statement of Reference, supported by the Affidavit deponed and filed in Court on 11 th June 2020 by the pt Applicant on his own behalf and on behalf of the 2nd Applicant. - 15. It is also the Applicants' case that in the late 2019 the Respondent began conducting preliminary geological activities within Kibiro village to establish a geothermal electricity plant. In that regard, the Respondent entered into a contract with a private contractor identified as Messrs Royal Techno Industries Limited who began drilling Temperature Gradient Holes in Kibiro area.

- 16. The Applicants further state that as a result of the drilling actions or geological activities around the Kibiro Salt Village, on 29th March 2020 a dangerous blow-out occurred and a hydrocarbon discharge affected and destroyed the properties of Kibiro community. - 17. The Applicants aver that the impugned preliminary geological activities have wrought far-reaching environmental and human rights threats and hazards to the wider Kibiro population and are a threat to the integrity of the Kibiro hot springs and ancient Salt Works. - 18. The Applicants seek the following Declarations and Orders, reproduced verbatim: - **a) A DECLARATION and ORDER that the Kibiro Hotsprings and Ancient Salt Manufacturing Works as a Natural Heritage Site are of supreme, sacred and inviolable cultural and spiritual value to the Banyakibiro indigenous people and the Kingdom or the people of Bunyoro-Kitara;** - **b) DECLARATION that the Respondent is responsible for the violation of the rights to consultation, to natural resources, religion and to cultural identity of the Banyakibiro and the people and Kingdom of Bunyoro-Kitara clearly enshrined in the Treaty for the Establishment of the East African Community and Articles 8, 14, 16, 17 (2) (3), 21, 22 and 24 of the African Charter on Human and Peoples Rights which Court has the mandate to apply within the framework(s) of the EAC Treaty;** - **c) A DECLARATION that the geological exploration and or prospection of geothermal electricity around Kibiro**

Hotsprings and Ancient Salt Manufacturing Works and or Industries located in Kibiro Village, Kigorobya Subcounty, Hoima District carried out by the Respondent - without first obtaining the ancestral, traditional and or surface rights of the Banyakibiro and or the Kingdom and people of Bunyoro-Kitara violates Articles 5 (3) (a) and (c), 8(1) (a) and (c). 38 (2), 39, 111, 114, 119(c) and (f), 123 (3) (c), 130(1) and (4) of the EAC Treaty and Articles 2, 17, 21 as well as 22 of the African Charter on Human and Peoples Rights;

- d) A DECLARATION that the Respondent is responsible for violating the environmental human rights of the Banyakibiro and or the people and Kingdom of Bunyoro-Kitara in terms of Articles 5 (3) (a) and (c), 8(1) (a) and (c), 38 (2), 39, 111, 114, 119 (c) and (f), 123 (3) (c), 130 (1) and (4) of the EAC Treaty and the African Charter on Human and Peoples Rights; - e) A DECLARATION that the impugned activities of the Respondent State constitute, comprise and or are tantamount to discrimination of the Banyakibiro, the Kingdom and people of Bunyoro-Kitara contrary to the EAC Treaty and the African Charter on Human and Peoples Rights; - f) AN ORDER directing the Respondent State to monetarily compensate the Banyakibiro and the people and Kingdom of Bunyoro-Kitara for the suffering, anxiety and distress caused by violation of their rights to prior consultation,

property, cultural and religious identity and environmental integrity in such terms or manner appointed by Court;

- g) AN ORDER appointing an independent assessor on compensation within a specified period of time to calculate or ascertain the amount of compensation and or royalties due to be paid and or effected by the Respondent State for violations in a manner and time court appoints; - h) AN ORDER that the Respondent State immediately removes from Kibiro Village, Hotsprings and Ancient Salt Manufacturing Village - including immediately directing and or supervising Messrs Royal Techno Industries Limited - all workmen, cordons, signage, security restrictions, tools machinery and or geological equipment buried under or used for implementing the said geothermal energy project. - i) AN ORDER that the Respondent restores within specified time and as much possible - the cultural and ecological integrity of the Kibiro Hotsprings and Ancient Salt Manufacturing Works and unequivocally guarantees nonrepetition of the intrusion and violation(s) in future; - j) AN ORDER that the Respondent State must adopt within reasonable time and with the respective budgetary allocations - the necessary legislative, administrative and any other type of policy measures to domesticate and or give effect to the right to prior consultation of indigenous and local peoples in the event it determines to carry out

any explorations and mining of natural resources within its territory;

- **k) AN** ORDER that the Respondent publicly apologises for the violations; - I) AN ORDER that the Respondent State within reasonable time appointed by this Honourable Court expedites and does all acts incumbent on it in international law to table before and aid the United Nations Educational, Scientific and Cultural Organisation (UNESCO) to complete the elevation of Kibiro Hotsprings and Ancient Salt Manufacturing Works or Village together with the Bigo bya Mugenyi archaeological earthworks, Ntusi man-made mounds and basins, the Nyero hunter-gatherer geometric art sites and the Mgahinga Gorilla National Park from the Tentative List to world heritage status; - m)A PERMANENT INJUNCTION restraining the Respondent State from de-gazetting and or acting to withdraw its submission of the Kibiro Hotsprings, Village and Salt Manufacturing Works from the Tentative List of the United Nations Educational, Scientific and Cultural Organisation (UNESCO) or other obligations under international law; - n) A PERMANENT INJUNCTION restraining the Respondent State from proceeding with the conduct of any geological exploration surveys or at Kibiro Hotsprings, Village and Salt Manufacturing Works including for geothermal energy, petroleum and or - related natural resources;

- o) A PERMANENT INJUNCTION ORDER restraining and prohibiting the Respondent State from evicting the people of Kibiro and the Kingdom and people of Bunyoro-Kitara from their ancestral lands and or doing any activity having the implicit effect(s) of depriving them of the same; - p) A RESTITUTIVE ORDER directing the Respondent to immediately and unconditionally resettle back all those inhabitants of Kibiro it has so far and or had evicted prior to, in the process and or in anticipation of conducting the impugned geological activities and further that all the destruction to property and loss, suffering and anxiety caused by this action be duly and fully compensated in terms court may determine; - q) AN ORDER directing the Respondent to immediately terminate and remove from Kibiro Hotsprings, Village and Site of the Ancient Salt Manufacturing Works all equipment, workmen, cordons, security restrictions, signage, implements or geological paraphernalia used to conduct the impugned survey or drill Temperature Gradient Holes; - **r) A** STRUCTURAL INTERDICT or ORDER directing and ordering that this Honourable Court even after judgment remains seized of this matter for a specified period of time for the purpose (s) of supervising the implementation of its judgment - and orders, hereinabove sought; - s) AN ORDER for general damages to the Applicants flowing from the disturbance, inconvenience, anxiety or anguish **caused by the actions complained about in this Reference in terms as Court may determine;**

- **t) AN ORDER awarding the costs of the Reference to the Applicants; and** - **u) Any other Orders or remedies that this Court may see fit to give.**

## **E. THE RESPONDENT'S CASE**

- 19. The Respondent's case is set out in the Response to the Reference and in the Affidavit in support of the Response to the Reference deponed by Mr Bahati Godfrey and filed in Court on 18th September 2020. - 20. The Respondent denies having, by any act or omission, violated or infringed any provision of the Treaty as alleged by the Applicants. - 21. The Respondent further contends that the Applicants are not entitled to any of the declarations, orders or reliefs sought and puts the Applicants to strict proof thereof. - 22. The Respondent also asserts that this Court lacks jurisdiction to entertain claims of human rights violations and prays that the Court dismisses the Reference with costs.

## **F. PRELIMINARY OBJECTION**

23. During the Scheduling Conference held on 1st March 2024, Parties herein could not agree on the issues for determination, with each Party proceeding on distinct points of law and prayers. Counsel for the Respondent challenged the 1st Applicant's locus standi to represent the 2nd Applicant in the Reference.

- 24. On the other hand, the 1st Applicant urged the Court to allow him to file an independent affidavit or supplementary affidavit to the Reference so as to salvage the case for the 1st Applicant. - 25. He justified his prayer by providing a background upon which he was basing his application: That, in **Application No. 16 of 2020** arising out of the present Reference, the Affidavit in support of the Application was one that was deponed by himself on behalf of both Applicants and that the Court found that he did not have the requisite mandate, at least he did not present proof that he had the authority to represent the 2nd Applicant. As a result of that slippage on his part, the Court dismissed the Application. - 26. Thus, he was concerned that if he does not make an application to cure that illegality the Reference was going to meet the same fate. - 27. Counsel for the Respondent, on the other hand, vehemently opposed the application to file an independent or supplementary Affidavit. He challenged the Applicant's prayer arguing that allowing the Applicant to file a new affidavit was tantamount to amending evidence, which is contrary to principles applicable to amendments. He submitted that the Applicant wanted to defeat the Respondent's case by moving the Court to allow him to amend evidence instead of amending pleadings, which is unheard of. - 28. In light of the above submissions from both Counsel, the following issue arose for this Court's consideration: **Whether the Reference was properly filed in accordance with the Provisions of Rules 19(5) and 25(3) of the Rules.**

## **G. DETERMINATION BY THE COURT**

29. Rule 19(5) of the Rules provides that:

**"A corporation or company may appear by its director, manager or Company Secretary, who is appointed by a resolution under the seal of the corporation or the company, or may be represented by an advocate."**

- 30. In **Application No. 16 of 2020,** arising from this Reference, the Court addressed a similar matter where the 1st Applicant had deponed an Affidavit on behalf of the 2nd Applicant without the requisite authority. - 31. Referring to Rule 19(5) of the Rules, the Court observed that:

**"The clear import of this Rule is to provide locus standi to a director, manager, or Company Secretary to appear and represent the company or corporation before this Court where such entity is a party; that most importantly such a director, manager, or Company Secretary must be appointed by a resolution under the seal of the corporation in question."**

- 32. The Court struck out the whole Application as it was not possible to sever the evidence to support one of the Applicants. - 33. Apparently, this Reference is not any different from what we observed in **Application No. 16 of 2020.** Although not binding on us, we are persuaded by the decision of the High Court of Namibia in **Kalenga and Others vs Minister of Urban and Rural Development and Others (HC-MD-CIV-MOT-REV 219 of 2019),** where it was held:

**"In circumstances where a person purports to initiate or to defend proceedings on behalf of a legal persona, that person invariably requires authority to initiate, oppose, and to prosecute those proceedings on behalf of the legal persona."**

- 34. Similarly, in **Dr. Ally Possi & Another vs Human Rights Awareness and Promotion Forum (HRAPF) & Another, EACJ Application No. 1 of 2015,** the Court held that in the absence of authority from the 1st Applicant, Dr Passi, to represent the 2nd Applicant, the latter must be struck off as a party to the Application. - 35. The present Reference is supported by a joint Affidavit deponed by the 1st Applicant on his own behalf and on behalf of the 2nd Applicant. In paragraph 9 of the Affidavit accompanying the Reference, Mr Adam Kyomuhendo (1 st Applicant) stated that: **" ... in this Reference, I do affirm this Affidavit both on my own behalf as well as that of the 2nd Applicant."** - 36. It is also undisputed that at the time of filing, the 1st Applicant, while also representing the 2nd Applicant, had not submitted any resolution or documentation demonstrating his authority to act on behalf of the 2nd Applicant, including deponing of an Affidavit on its behalf. - 37. As admitted in Court, the 1st Applicant deposed the Affidavit for the 2nd Applicant without authorization to act on its behalf contrary to the dictates of Rule 19(5) of the Rules. This anomaly renders the Affidavit defective and invalid. - 38. In the absence of a valid affidavit to support the Reference, the Reference cannot be sustained due to the express provisions of both Rules 19(5) and 25(3) of the Rules.

39. Rule 25(3) of the Rules clearly states that:

**"Where the reference seeks to challenge the legality of an Act, regulation, directive, decision or action, the statement of reference shall be accompanied by an affidavit."**

40. As earlier stated, the Affidavit deponed by the pt Applicant on his own behalf and on behalf of the 2nd Applicant in **Application No. 16 of 2020,** was struck off by this Court's ruling in that Application. Apparently, the expunged Affidavit is a replica of the Affidavit in support of this Reference; as such, it cannot survive. This decision is not novel before this Court. In **Attorney General of Uganda vs Media Legal Defence Initiative (MDLI)** & **19 Others, EACJ Appeal No. 3 of 2016,** the Appellate Division of this Court had this to say:

**"Without a valid supporting affidavit, the Application, by any stretch of imagination, could not be said or held to have been competently before the Trial Court."**

- 41. The same principle applies here. The ruling of this Court in **Application No. 16 of 2020** struck off the supporting affidavit for being incurably defective. Consequently, the Reference accompanied by **the same defective Affidavit** remains unsupported with any evidence pursuant to Rule 25(3) of the Rules. - 42. Regarding the prayer by the 1st Applicant to amend the Affidavit, the Court finds it apt to refer to its established jurisprudence on this matter. In **The Attorney General of the Republic of Burundi vs The Secretary General of the East African Community** & **Another, EACJ Appeal No. 2 of 2019,** this Court decided that **"Affidavits are evidence and as such are not amenable to Amendment".**

43. The Court went on to observe that:

**"The striking out or expurgation of irrelevant or inadmissible evidence is founded on the Court's duty as the master of its own processes to ensure the ends of justice and prevent abuse. Fairness is the hallmark of justice. If irrelevant or inadmissible evidence were to be presented to the Court and allowed to remain on record, a grievous wrong would be committed in that evidence without probative value would but sodden with prejudice to the party adversely affected thereby, would be part of the Court's record with the result that the stream of justice would be polluted. The Court prevents such a prospect by exercising an inherent power to reject, strike out, or expunge such evidence from its record either upon objection by a party, or proprio motu. That is exactly what happened in the Trial Court. The impugned Affidavits were challenged by both the Respondent and the Intervener and the Court did the only proper thing in the circumstances, it struck them out and expunged them from its records."**

- 44. Equally, this Reference is subject to the same shortcomings which cannot be cured by the Applicant who now seeks leave to amend the Reference which remains unsupported by an affidavit, a mandatory requirement under the Rules. - 45. Further, we concur with the Respondent's submissions that the Applicant's proposed amendments aim at circumventing the objections raised by the Respondent and this Court's prior decision involving the same parties in **Application No. 16 of 2020.**

- 46. In view of the foregoing, and considering that the Reference was filed contrary to the provisions of Rules 19(5) and 25(3) of the Rules, the Court finds the Reference incompetent by reason of being supported by an incurably defective Affidavit. - 47. Regarding costs, Rule 127(1) of the Rules provides that **"Costs in any proceedings shall follow the event unless the Court shall for good reasons otherwise order."** - 48. We see no reason to depart from this rule, and we, thus, award costs of this Reference to the Respondent.

## **H. CONCLUSION**

- 49. For the reasons set out in this judgment we hereby dismiss the Reference in its entirety with costs. - 50. It is so ordered.

Dated, signed and delivered at Arusha this 10<sup>th</sup> Day of October 2024.

Hon. Justice Yohane B. Masara PRINCIPAL JUDGE

\*Hon. Justice Dr Charles O. Nyawello DEPUTY PRINCIPALJUDGE

Hon. Justice Richard Muhumuza **JUDGE**

Hon. Justice Dr Léonard Gacuko **JUDGE**

Hon. Justice Kayembe Ignace René **JUDGE**

\*[Hon. Justice Dr. Charles O. Nyawello's term of office at the EACJ came to an end with effect from 20<sup>th</sup> May, 2024 but he signed this Judgment in terms of Article 25(3) of the Treaty]

Reference No. 16 of 2020

Page 17