Pan African Lawyers Union (PALU) v Attorney General of the Republic of South Sudan (Reference No.26 of 2020) [2025] EACJ 1 (25 February 2025) (First Instance Division)


THE EAST AFRICAN COURT OF JUSTICE

**AT KIGALI**

**FIRST INSTANCE DIVISION**


(Coram: Yohane B. Masara, PJ; Richard Wabwire Wejuli, DPJ; Richard Muhumuza, Leonard Gacuko & Kayembe Ignace Rene Kasanda, JJ)

# REFERENCE NO. 26 OF 2020

# PAN AFRICAN LAWYERS UNION (PALU) ....................................

#### **VERSUS**

THE ATTORNEY GENERAL OF THE REPUBLIC OF SOUTH SUDAN ....................................

25<sup>th</sup> FEBRUARY 2025

#### REASONED RULING OF THE COURT

#### A. INTRODUCTION

- 1. On February 25, 2025, during the Scheduling Conference, this Court dismissed Reference No. 26 of 2020 between the Pan African Lawyers Union ("the Applicant") and the Attorney General of the Republic of South Sudan ("the Respondent") for being time barred, but reserved reasons. We herein provide reasons for our decision. - 2. Reference No. 26 of 2020 was filed on 17<sup>th</sup> August 2020 premised on alleged violations of Articles 6(d), 7(2), 8(1)(c), 27(1), 28, 29 and 30(1) of the Treaty for the Establishment of the East African Community ("the Treaty"); Article 15(1) of the EAC Common Market Protocol;, Articles 2, 4, 5, 6, 7(1), 7(2), 9, 10, 11, 12, 13, 14, 16 and 18 of the African Charter on Human and Peoples' Rights; Rules 1 and 25 of the East African Court of Justice Rules of the Court, 2019 ("the Rules") and all enabling provisions of law. - 3. The Applicant is a non-governmental entity, thus a legal person. It describes itself as a continental membership forum for African lawyers and lawyers' associations, whose mission is to advance the law and the legal profession, rule of law, good governance, human and peoples' rights and socio-economic development of the African continent. The Applicant's address for service is c/o Mr Donald Omondi Deya, Advocate, of Pan African Lawyers Union (PALU), Number 3, Jandu Road, Corridor Area, P. O. Box 6065, Arusha, United Republic of Tanzania

4. The Respondent is the Attorney-General of the Republic of Soutin Sudan, sued in his capacity as the Principal Legal Advisor of the Respondent State. His address of service for the purposes of this suit is c/o Office of the Attorney General, Airport Rd., Next to CES Ministry of Education, P. O. Box 489, Juba- Republic of South Sudan.

# **B. REPRESENTATION**

5. At the Scheduling Conference convened on 25<sup>th</sup> February 2025, the Applicant was represented by Mr Donald Deya and Ms Neema Jaji learned Advocates, while the Respondent did not enter appearance and had not filed pleadings. The Court decided to proceed *ex-parte*.

# C. THE APPLICANT'S CASE

- 6. The Applicant's case is summed up in the Statement of Reference and in the Affidavit deponed by Dr Robert A. Portanda III on the 13<sup>th</sup> August 2020. - 7. It is the Applicant's case that the subject of the Reference, Mr Wol Kerbino Kerbino (herein, "Mr Wol"), was subjected to mistreatments by the Respondent's Government. These are such as the unlawful arrest, enforced disappearance, detention incommunicado, torture, unlawful confiscation of property, unfair trial, unlawful surveillance, threats and intimidation. - 8. That, Mr Wol's woes started on 27/04/2018 when he was summoned by the Director General of National Security Service (NSS) to the Headquarters of NSS, famously known as the 'Blue House' in Juba, South Sudan.

- 9. That Mr Wol was imprisoned, held arbitrarily incommunicado with $n\infty$ formal charge against him and was not presented before a competent tribunal or court. During this time, Mr Wol was subjected to beatings and tortures. That, his health deteriorated significantly but was not afforded any medical care. - 10. That, while in custody and being frustrated by the increasing number of people who were disappearing during the nights, and fearing for their lives, Mr Wol and a group of other prisoners, disarmed some guards and staged a peaceful protest on 7/10/2018. - 11. Following the above incidence, Mr Wol was subsequently prosecuted for crimes against national security and was on 11/06/2019 convicted and sentenced to 15 years in prison. He appealed. - 12. That, while the Appeal against his conviction was still pending, the President of the Respondent's State announced on 02/01/2020 that he was pardoning several prisoners of war, Mr Wol included, and was released from Juba Central Prison on 04/01/2020. - 13. It is further the Applicant's case that, on 15/06/2020, security officials announced that the officers of the Respondent had pursued and killed Mr Wol in active combat. - 14. It is therefore the Applicant's case that the Respondent failed to protect Mr Wol's constitutional right to life, to dignity, and protection from torture or other cruel, inhuman or degrading treatment or punishment. Also, that, even after he was killed, the Respondent has continuously failed to accord him a decent burial.

15. Consequently, the Applicant prayed for a number of declarations and orders which we see no good reasons to reproduce.

# D. THE RESPONDENTS' CASE

As earlier stated, the Respondent did not enter appearance nor did they reply to the allegations lodged against them. The records show that, on 17<sup>th</sup> August 2020, the Applicant served a copy of Reference upon the Respondent's Counsel via email and later, on 31<sup>st</sup> August 2020, via DHL. The Court did not deem it appropriate to postpone the matter as it was satisfied that the Respondent was aware of the case against it and opted not to enter appearance or even respond to it in writing. Thus, Scheduling proceeded *ex parte*.

# **E. ISSUES FOR DETERMINATION**

- 16. During the Scheduling Conference held on 25<sup>th</sup> February 2025, the Court did not have a joint Scheduling Conference Notes to consider for it to determine the way forward. However, the Applicant had graciously prepared the Applicant's part of the Scheduling. - 17. One of the issues in the draft was "whether the court has jurisdiction to determine the Reference". - 18. Upon scrutiny of the pleadings and the affidavit filed by the Applicant, and upon inquiring from Counsel for the Applicant, the Court singled out the issue of its jurisdiction ratione temporis and was satisfied that the Reference was filed outside the prescribed time limit. The Reference was promptly dismissed after Counsel for the Applicant made a futile attempt to salvage it. The Court undertook to avail the

reasons for its decision, hence this Ruling. The grounds for our decision are expounded hereunder.

#### F. COURT'S DETERMINATION OF THE ISSUE

- 19. This Court has in numerous past decisions underlined the essence of determining at the outset all facets of its jurisdiction before it can purport to deal with the dispute before it in its merit. There are three facets of the Court's jurisdiction, namely, jurisdiction over the person (ratione personae or locus standi), jurisdiction over the subject matter of the dispute (ratione materiae) and the time element (ratione *temporis).* - 20. In the case of Emmanuel Mwakisha Mjawasi and Others vs the Attorney General of the Republic of Kenya, EACJ Appeal No. 4 of 2011, the Court held that a point of law could be raised at any stage of the proceedings. The rationale is that it would save Court's time and resources if the objection can dispose of the case at the earliest. - 21. Similarly, in **Modern Holdings vs Kenya Ports Authority, EACJ** Reference No. 1 of 2008, this Court held that jurisdiction is basic to its adjudicatory function, such that if jurisdiction is challenged and made an issue, it ought to be addressed and determined forthwith. - 22. In Mary Ariviza and Okotch Mondoh vs Attorney General of the Republic of Kenya and the Secretary General of the East African Community, EACJ Application No. 3 of 2010, the Court also stated that issues of jurisdiction, whenever raised, must be examined and determined forthwith because jurisdiction is the bedrock on which our litigation system is based.

- 23. Arising from the above consistent holdings by this Court, we found it imperative to determine the issue of jurisdiction notwithstanding that the Applicant had a different view. - 24. Before we concluded that the Court was stripped off its jurisdiction due to the delay in filing the Reference by the Applicant, the Court invited Counsel for Applicant to address the Court on when the cause of action (unlawful arrest, the disappearances, arbitrary detention and confiscation of property of the late Wol), which prompted the Applicant to file the Reference, occurred. - 25. It became apparent that both Counsel did not dispute that most, if not all, of the alleged violations took place more than two months before the Reference was filed. Counsel Neema explained that the late institution of the Reference was due to "collecting the information which took a bit of time and that is how we ended up coming in late for filing." - 26. The above response was somehow contradicted by her colleague, Mr Deya, who insisted that the question whether the Reference was filed on time or not was "a matter of evidence" and that as PALU (the Applicant) had not filed an affidavit in support of its case, other than the single Affidavit filed, the Applicant ought to be allowed to submit evidence which was to show when the Cause of Action arose for purposes of limitation. - 27. The Court drew Counsel's attention to paragraphs 13 and 38 of the Reference and paragraph 30 of the affidavit in support of the Reference all of which pointed to the point of knowledge by the Applicant of the violations contained in the Reference.

- 28. To the question whether the Reference was filed without a supportin g affidavit, Counsel Deya answered that "one person who associates with the applicant is the one that swore the founding affidavit." To him, as the affidavit was sworn by Dr Robert Portanda III, who is not the Applicant, it cannot be sufficient evidence that the Application was filed out of time. - 29. The Court sought clarification from Counsel Deya if his pleadings were incomplete and therefore has intention to file an affidavit that would change paragraphs 13, 38 of the Statement of Reference (which refers respectively to the compliance with Article 30(2) and the day on which the action complained of came to the knowledge of the Applicant), and paragraph 30 of the Affidavit in support of Statement of Reference which corroborates paragraph 38 of the Statement of Reference). - 30. Counsel Deya answered in the negative but added that: the "pleadings have one founding affidavit. That founding Affidavit was not deponed on the specific day of which the complainant got to know." - 31. It was Mr Deya's further view that whereas the Rules require that a Statement of Reference be accompanied by an affidavit, such affidavit need not come from the Applicant and it is not expected to contain all evidence, time limitation included. Counsel for Applicant therefore intended to file multiple affidavits which would be complementary to and add on to the founding affidavit. - 32. Having outlined the responses obtained from Counsel for the Applicant, and having carefully scrutinized the Statement of Reference and the Affidavit deponed in support of Reference, we are satisfied that the Reference cannot be entertained as it was filed contrary to the dictates of Article 30(2) of the Treaty.

- 33. Before we outline our reasons for our decision, is important to gauge the Reference in relation to the cause of action. - 34. A cause of action is defined by the *Black's Law Dictionary* as "A group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in Court from another person." - 35. In Ajayi vs Military Administrator, Ondo State (1997) 5 N. W. L. R., it was held that a cause of action –

"...consists of every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment. It is a bundle or aggregate of facts, which the law will recognize as giving the plaintiff a substantive right to make a claim against the relief or remedy being sought. The factual situation on which the plaintiff relies to support his claim must be recognized by law as giving rise to a substantive right capable of being claimed or enforced against the defendant. A cause of action is therefore determined by the statement of claim and the averments therein." (Emphasis ours).

36. Rule 25(3) of the Rules provides 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."

- 37. The rationale of the above provision is that a Reference and the $\alpha$ affidavit supporting it should be able to inform the Court of all the allegation including the mandate of the Court to deal with the same. - 38. Thus, it is from the Reference and the supporting affidavit that the Court and, indeed the Respondent, relies on to determine whether it is vested with jurisdiction or otherwise. A Statement of Reference which does not speak to the jurisdiction of the Court is in our view unworthy of determination - 39. Coming back to the issue under discussion, the Court was mindful to determine whether it has jurisdiction to deal with the merit of the Reference considering the time element. - 40. It is axiomatic that two elements are to be taken into account in determining whether the Reference was instituted within the time limit provided for under Article 30(2) of the Treaty. - 41. Article 30(2) states as follows:

"The proceedings provided for in this Article shall be instituted within two months of the enactment, publication, directive, decision or action complained of, or in the absence thereof, of the day in which it came to the knowledge of the complainant, **as the case may be.**" (Emphasis added)

42. It can be gathered from the Statement of Reference and the supporting affidavit that the Applicant sought to rely on the second limb of Article 30(2); that is, the day in which it came to the knowledge of the complainant.

43. According to Paragraph 38 of the Statement of Reference drawn and filed by Counsel for the Applicant, the Respondent's actions complained of came to the Applicant's knowledge on 15<sup>th</sup> June 2020. Paragraph 38 states as follows:

"On 15/06/2020, security officials surprised the citizens of the Respondent by announcing they had pursued and killed Mr. Wol in active combat."

44. The date of 15<sup>th</sup> June 2020 is confirmed by the Affidavit deponed by Dr Robert Portada III in support of the Statement of Reference. In Paragraph 30 of the said affidavit, it is stated:

"THAT, I was shocked to hear from friends and colleagues on the ground, confirmed by various media sources on 15 June 2020, that Mr. Wol had been hunted down and killed by government forces, as he sought to defend himself and members of his movement from these attacks."

- 45. From these set of facts, we have no doubt in our minds that the death of Mr Wol, being one of the impugned acts, came to the Applicant's knowledge on the date pointed out both in the Statement of Reference and in the Supporting Affidavit. - 46. At one point, Counsel Deya conceded to the fact that the Reference was filed after "two months and two days" but in his view, "the matter was filed on time, bearing in mind that it was filed after a weekend." He later vacated or was not insistent of the said point. - 47. We understood Counsel to seek reliance on Rule 3(1)(d) of the Rules which reads as follows:

Reference No. 26 of 2020

"Any period of time fixed by these Rules or by any order of the Court for doing any act shall be reckoned as follows:

(d) If a period would otherwise end on a Saturday, Sunday or an official holiday, it shall be extended until the end of the first following working day."

- 48. Unfortunately, that cannot be the position of the law. The provision that Counsel for the Applicant sought reliance of is not relevant and is only applicable to periods of time fixed in days by the Rules or by order of the Court. It cannot be the time fixed by Article 30(2) of the Treaty which fixes the time in terms of months and is not subject to the Rules. - 49. That said, section 63(3), (4) and (5) of The Laws of the Community (Interpretation) Act, 2004 which governs the reckoning of months provides that:

$(3)$ A reference in an enactment to a month is to be construed as a reference to a month as directed by the **Gregorian calendar.**

(4) If a period indicated in an enactment begins on any date other that the day of any of the twelve months of the calendar year it is to be reckoned from the date on which it is to begin to the date in the next month numerically corresponding, less one, or if there is no corresponding date, to the last day of that month.

For example, a month beginning on 15<sup>th</sup> January ends on 14<sup>th</sup> Februarv:

A month beginning on $31^{st}$ January ends on $28^{th}$ February (or 29 February in a leap year).

(5) If the indicated period is one of two, three or more months, it is to be reckoned from the date on which it is to begin to the date numerically corresponding, less one, in the second, third or other successive month after that or, if there is no such corresponding date, to the last day of that month.

For example, a period of six months beginning on 15<sup>th</sup> August ends on 14<sup>th</sup> February; a period of six months beginning on $30^{th}$ or $31^{st}$ August ends on $28^{th}$ February (or 29<sup>th</sup> February in a leap year)." (Emphasis added)

- 50. It follows, therefore, that if one was to count two months from June 15, 2020, the same would end on 14<sup>th</sup> August 2020. Thus, filing the reference on 17<sup>th</sup> August 2020 would still be out of time even if the same was preceded by a weekend. See this Court's decisions in Ola **Energy Uganda Limited vs the Attorney General of the Republic** of Uganda, EACJ Reference No. 6 of 2020 and Ruzizi S. A vs The Attorney General of the Republic of Burundi, EACJ Reference No. 7 of 2019 - 51. In Alcon International Ltd vs The Standard Chartered Bank of Uganda and others, EACJ Appeal No. 3 of 2013, this Court held that:

"a Reference should be filed within two months of the crystallization of the cause of action or of actual knowledge of its existence by the Complainant."

52. In addition, the Court held in the case of Attorney General of the Republic of Kenya vs Independent Medical Legal Unit, EACJ Appeal No. 1 of 2011 that:

"It follows, therefore, in our view, that this Court is limited by Article 30(2) to hear References only filed within two months from the date of action or decision complained of, or the date the Claimant became aware of it."

53. In the same line, the Court held in **Omar Awadh Omar and Others** vs The Attorney General of the Republic of Kenya and others, **EACJ Application No. 4 of 2011 that:**

"The principle of legal certainty requires strict application of the time limit in Article 30(2) of the Treaty. Furthermore, nowhere does the Treaty provide any power to the Court to extend, to condone, to waive or to modify the prescribed time limit for any reason."

- 54. In this Reference, the cause of action came to Applicant's knowledge on 15 June 2020. Hence, as the Reference was lodged in this Court on 17<sup>th</sup> August 2020, it is obvious that the Reference was incontestably filed out of time and therefore time barred. - 55. As the Court lacks jurisdiction to hear and determine the Reference, we did not find it necessary to go on with the scheduling of the matter as the same was going to be an exercise in futility.

Reference No. 26 of 2020

56. In Alcon International Limited vs Standard Chartered Bank of **Uganda and 2 Others (supra), the Court held that that:**

> "Jurisdiction is everything. Without it, a Court has no power to make one step. Where a Court has no jurisdiction, there would be no basis for a continuation of the proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds that it is without jurisdiction."

57. Finally, regarding costs, Rule 127 (1) of the Rules provides as follows:

"Costs in any proceedings shall follow the event, unless the Court shall for good reasons otherwise order."

58. As the Respondent did not contest the Reference or enter appearance, we deem it necessary to depart from the general rule and make no order as to costs.

## **G. CONCLUSION**

- 59. For the foregoing reasons, we make the following orders: - a) Reference No. 26 of 2020 is hereby dismissed; and - b) No order as to costs.

60. It is so ordered.

Dated, signed and delivered at Kigali, Rwanda this 25<sup>th</sup> February 2025.

me Hon. Justice Yohane B. Masara PRINCIPAL JUDGE . . . . . . . . . . Hon. Justice Richard Wabwire Wejuli DEPUTY PRINCIPAL JUDGE Hon. Justice Richard Muhumuza **JUDGE** Hon. Justice Dr Léonard Gacuko **JUDGE** Bellieu Hon. Justice Kayembe Ignace Rene Kasanda **JUDGE**

Reference No. 26 of 2020

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