East African Court set to decide fate of EACOP affected persons

Kampala, Uganda | THE INDEPENDENT | On Monday 24th February, John Lubega Nsamba traveled to Kigali Rwanda attend the Appellate Division of the East African Court of Justice (EACJ).

The court was hearing an appeal filed civil society organization challenging the decision of the Court’s First Division on case against the Attorney General of Uganda, Tanzanian and the Secretary General of East African Community regarding the East African Crude Oil Pipeline Project (EACOP).

Lubega’s 79-year old father, John Mary Nsamba was sued by the government of Uganda at the High Court in Masaka for refusal to accept compensation for land in Kyotera where the East African crude oil project is to be constructed.

Nsamba’s family indicated that it has never wished to sell any part of the land they acquired from its forefathers. The land is about to be compulsorily acquired to pave was for the construction of the 1,443 km crude oil pipeline.

“We have refused to give up our land because of the price being offered by the government. We think it is too little. Secondly, we think that project will negatively affect the environment” said Nsamba.

Environmental and human rights groups like the African Institute For Energy Governance (AFIEGO) have persistently highlighted the potential hazards of the EACOP, including severe impacts on wildlife habitats, the displacement of communities, and the exacerbation of climate change through increased greenhouse gas emissions.

Nsamba and other project affected persons say the courts in Uganda have refused to expeditiously hear their cases and yet the construction of the pipeline has commenced.

He hopes that the Appellate Division of East Africa Court of Justice can move fast to ensure justice. Dickens

Kamugisha, the chief executive officer at Afiego said the case was filed before the East African Court Of Justice because the activists were frustrated by the long delays at the local courts in Uganda.

“We filed a case at the High Court of Uganda in 2014. Up to now that case is still there. And now we have 21 cases in the High Court and the Court of Appeal. All these cases are never heard,” explained Kamugisha.

He said while AFEIGO and other CSOs tried to help the Project Affected Persons by petitioning the Parliament, the Ministries of Energy and Internal Affairs, they did not provide solutions to the people seeking justice.

“We wanted to think that they will get solutions from those entities. Unfortunately all of them failed to get solutions. So we hoped that since there is a regional court, that one can be balanced because this project cuts across borders” Kamugisha told journalists.

In November 2020, the four CSOs including Africa Institute for Energy Governance (AFIEGO) from Uganda, Center for Food and Adequate Living Rights (CEFROHT) from Uganda, Natural Justice (NJ) from Kenya and Centre for Strategic Litigation (CSL) from Tanzania, filed a case seeking to stop non-compliance of the EACOP project to key regional and international laws as well as agreements.

The case was however dismissed by the First Division of the East Africa Court of Justice following a preliminary by Tanzania and on Uganda.

The court declined to hear the case saying that the applicants had filed it beyond the two-month time limit set under Article 30(2) of the treaty.

The EACJ found that the applicants should have filed the case as early as 2017 rather than in 2020 and, as a result, the court said it does not have jurisdiction to hear the matter.

The CSOS then appealed to the Appellate Division seeking orders from the Appellate Division of the East African Court Of Justice to set aside the ruling of the First Instance Division that dismissed the case.
The appeal was first heard at the EACJ in Arusha, Tanzania, in November 2024.

During that hearing, the Appellate Division of the EACJ rejected a request by the Tanzanian government to dismiss the appeal.

They asked the deferral of the case to the First Instance Division for hearing on its merits. The activists also want the court to set aside the decision of the First Instance Division in which costs were awarded to the governments of Uganda and Tanzania as well as the Secretary General of the EAC.

The court ordered the four CSOs to file a supplementary record of proceedings from the First Instance Division by November 29, 2024, to enable the judges to hear the case.

Hearing at the Appellate Division Uganda, Tanzania and the East Africa Community jointly asked the judges of the court to dismiss the appeal.

The dismissal of the appeal would final for the activists in their pursuit for justice and their attempt to stop the construction of EACOP.

The appeal was headed by Judge President Justice Nestor Kayobera, Lady Justice Anita Mugeni (Vice President), Justice M’Inoti Kathurima, Justice Cheborion Barishaki and  Justice Omar Othman Makungu.

The Appellants were represented, Dr. David Kabanda, Justine Ssemuyaba and Dr Rugendela Nshale. Eleven persons displaced by the East African Crude Oil Pipeline (EACOP) were present in the fully packed court.

Ali Sekatawa and Dr. Joseph Kobusheshe, the Director Environment, Health and Safety from the Petroleum Authority of Uganda were also in the court.   The Solicitor General, Ouma Charles led the submission on behalf of Uganda. He was assisted by a team of lawyers from the Attorney General’s Chambers.

Mark Mulwambo, Principal State Attorney, led the legal team for the Government of Tanzania (2nd Respondent), while Dr. Anthony Kafumbe, Counsel to the Community, represented the EAC Secretary General as the third Respondent.

Key among the issues at the First Division or the trial court was that the governments of Uganda and Tanzania signed the Intergovernmental Agreement and the Host Government for the trans-boundary East African Crude Oil Pipeline without the involvement of the East African Council of Ministers. The applicants were of the view that signing the two agreements violated the East African Treaty.

Dr. David Kabanda in an interview states that the East African Treaty requires that if a project is trans-boundary, the states that are involved must take it to the States that are involved must take it to the Council of Minister of East Africa.

“In this particular case, why there is a lot of impunity in EACOP and why we are fighting is because they don’t follow the law. If we are in East Africa and the project is trans-boundary from Uganda to Tanzania. It is going to affect all East Africans,” he said.

The appellants say the EACOP project could have adverse effects on the environment, social justice, and climate justice. “We want the government to back track a bit and listen to what we are raising” said Kabanda the Republic of Uganda, the United Republic of Tanzania, and the Secretary General of the East African Community.

The case challenges the construction of the East African Crude Oil Pipeline (EACOP) in their preliminary objection successfully convinced the First Division Court to dismiss the application with costs saying it did not have the power to entertain the case.

Charles Oumo said the human right and environmental questions being raised by the appellants about the EACOP should have been conditions before the signing of the Intergovernmental Agreements.

He argued that the appellants filed an application over two years since the signing of the agreement and therefore they were out of time stipulated under article 30(2) of the treaty.

“Since their cause of action is hinged on the signing of the IGA, which we have stated was signed on 20th May 2017 and not September 2020, there is no way a severance can be conducted” said Oumo.

He also disagreed with the submission by the appellants urging the court to order against the decision by the trial court to slap costs on a public litigation case. His argument did not seem to go well with some of the justices hearing the appeal.

“You know you are the government. You are legal advisor of Uganda. Now the East Africans … your people filed a matter against the government for having entered into an agreement with Tanzania. So you are saying these Uganda should pay costs?” Judge President Justice Nestor Kayobera asked.

“The attorney general of Uganda is even requesting that the people pay cost to the government. So those people sitting behind in the court should pay cost to the government?” asked Justice Nestor Kayobera.

Justice Cheborion further asked that “Secondly who has paid you? Who is paying you? You and your team? Isn’t it these people? They give a salary. Now again you are saying they should pay you for. Where do you get the basis of your claim?”

In reply, Oumo said the case filed by the applicants was not a priority. “What that means is that case becomes frivolous and vexatious. And it is our contention that appellants should have been honorable enough to withdraw”

Justice Cheborion then tasked Oumo to explain whether he really meant that the matter is frivolous. “Is that what you are saying? The issues in this reference. You think they are frivolous?”

The judges said the provide the ruling on notice.

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