A regional court may hear a public-interest challenge and still refuse an injunction: this 2007 ruling shows why standing, urgency and remedy must be proved separately.

Why the case is easy to misread

The dispute and the question before the Court

What the judges decided

The rule on standing and interim relief

Why timing mattered

What the later reference added

Use under current law

Practical advocacy and the precedent’s limits

Why the case is easy to misread

East African Law Society and Others v AG of Kenya and Others is regularly described as an authority on public-interest litigation and access to the East African Court of Justice. That description is fair, but incomplete. The decision reported as Application 9 of 2007 was an interim application connected to Reference 3 of 2007. It was not the final judgment deciding whether the 2006 amendments to the East African Community Treaty were lawful. Its immediate task was to decide whether five law societies could ask the Court to stop implementation while their principal case was pending, and whether the evidence justified that temporary remedy.

That procedural setting changes how the case should be cited. The applicants achieved two important things: the Court rejected the objection to their standing to make the application, and it accepted that the reference raised serious questions for trial. They nevertheless lost the interim injunction. The Court reasoned that most amendments had already been implemented, so an interlocutory order could not undo the completed steps. The case therefore teaches two connected lessons: a public-interest claimant can pass the courthouse door, yet still fail to secure urgent relief; and recognition of standing is not a finding that the underlying claim has succeeded.

A headline saying that the EACJ upheld public-interest standing is broadly accurate, but does not tell readers that the Court refused to suspend the amendments. A headline saying that the applicants lost is just as incomplete: the judges expressly recognised standing and identified questions fit for a full hearing. The careful reading is that access was recognised at the interim stage, while the merits and final remedy remained open. The case should not be described as a final declaration that the Treaty amendment process was invalid.

The dispute and the question before the Court

The applicants were the East African Law Society, the Law Society of Kenya, the Tanganyika Law Society, the Uganda Law Society and the Zanzibar Law Society. They brought Reference 3 of 2007 against the Attorneys General of Kenya, Tanzania and Uganda and the EAC Secretary General. Their central complaint was that amendments to the Treaty, agreed and ratified by the Partner States in 2006, had been processed contrary to Treaty requirements. They relied particularly on Articles 38 and 150, alongside provisions concerning the people-centred character of the Community, its principles and the Court’s role. They asked for declarations and orders affecting the amendments and for public consultation in any future amendment process.

At the same time, the societies sought interim orders restraining the Partner States and Community officials from continuing to formulate, publish, enact, ratify or otherwise implement the amendments while the reference was pending. Their concern was practical: if institutional changes took effect before judgment, a later ruling might come too late to preserve the position they said the Treaty required. The Court had to hear the urgent request while allowing respondents to answer it. The application was argued on affidavit evidence and submissions; the allegations were not treated as proved merely because a reference had been filed.

The legal question in Application 9 was narrower than “Were the Treaty amendments lawful?” It was whether the five associations had standing to seek interim protection and whether they met the test for an interlocutory injunction. The Court asked whether the pleaded case raised a serious issue, whether refusal risked harm that could not later be adequately remedied, and where the balance of convenience lay. The answer to the first question favoured the applicants; the answer on remedy did not. The main Treaty challenge continued separately.

What the judges decided

The ruling was delivered at Arusha by President Moijo M. ole Keiwua, Vice-President Joseph N. Mulenga, and Justices Kasanga Mulwa, Mary Stella Arach-Amoko and Harold R. Nsekela. The Court held that the applicants had locus standi, meaning a sufficient legal basis to bring this application. It rejected an approach that would confine access to a claimant able to show a private injury of the same kind as in ordinary private litigation. The law societies were genuine organisations with a real interest in Treaty compliance, and the alleged non-observance concerned the regional legal order.

The Court then applied familiar interlocutory injunction principles, including those stated in Giella v Cassman Brown & Co Ltd. It accepted that the applicants had raised bona fide, serious questions for trial. The judges were careful not to decide those questions at the interim stage. They did not pronounce the amendments lawful, unlawful, void or valid. The merits had to be heard after the parties’ complete cases could be considered.

The decisive practical fact was that the amendments had already been implemented in substantial part. The record suggested that only aspects concerning appointment of judges to the reconstituted Court remained incomplete. The Court concluded that steps already taken could not be reversed through the requested interim order. It dismissed the application for interim orders but left the underlying reference to proceed. This outcome validates a route to the regional court, while warning that effective interim protection may be unavailable once implementation overtakes the application.

The rule on standing and interim relief

The principal rule from the ruling is that a genuinely interested legal person may invoke the EACJ’s process to challenge alleged non-observance of the Treaty, even where the claim concerns a public or institutional injury rather than a personal loss. Article 30(1) permits a person resident in a Partner State to refer an alleged failure by a Partner State or Community institution to fulfil Treaty obligations. The Court treated the Treaty’s regional accountability function as relevant to whether the law societies could bring the matter. It did not make every organisation an automatic representative of the public: genuine interest, a Treaty-based complaint and a properly framed proceeding still matter.

A second rule follows from the treatment of interim relief. Standing and entitlement to an injunction are separate questions. A claimant may be admitted to court and demonstrate an arguable issue without establishing a right to temporary relief. An injunction must be justified by evidence addressing urgency, likely injury and practical effect. Where the challenged measure has substantially taken effect, an injunction may be incapable of restoring the position even though the underlying legal question remains important.

“Public interest” does not itself prove irreparable harm, and institutional importance does not remove the burden to show why the court must intervene before final judgment. An applicant should identify the exact step that is imminent, the legal or practical harm it will cause, why a later declaration will not suffice, and how a proposed order can be obeyed. Respondents should answer with a reliable implementation chronology and evidence of what is reversible, rather than relying only on an abstract claim that the matter is political.

Why timing mattered

The application was filed alongside the substantive reference on 18 May 2007, after the Treaty amendment process had moved forward. That interval gave the respondents a powerful practical answer. The Court did not say that delay automatically defeats an injunction or that the challenge lacked merit. Its point was narrower: an interlocutory order preserves an effective remedy while a court decides the case; it is a poor tool for undoing a complex process already substantially implemented. Stopping further implementation could not by itself recreate the pre-amendment institutional position.

Public-interest claimants may need time to obtain documents, consult members, verify the governmental act and identify the right respondent. Yet delay can make interim relief impractical. A stronger application should explain the chronology openly: when the decision became public, what information was missing, what steps the claimant took and why it filed as soon as it had an arguable basis. It should distinguish completed acts from pending consequences, then tailor relief to the latter. An order targeting an identifiable upcoming appointment may be more workable than a request to reverse every consequence of an amendment already in operation.

Evidence should prove the facts necessary for temporary relief. A society’s mission may support genuine interest, but the supporting affidavit should include dated communiqués, correspondence, legislative records, official notices and a clear timeline. Evidence should link the requested injunction to a concrete future act. A broad prayer to stop “all implementation” risks being both late and difficult to supervise. The reasoning makes the point plainly: a court cannot protect the status quo when the application arrives after the relevant change has largely become the status quo.

This distinction also affects the way public-interest groups should plan a case before filing. The organisation should identify the person who can swear to its authority, explain how its members are affected by the Treaty question and attach the records that show the act under challenge. If the institution has published a decision, the applicant should obtain the official version rather than rely on a press summary. If consultation is alleged to be absent, it should record whom the State consulted, what notices were issued and how the public could respond. The goal is not to overwhelm the Court with documents. It is to make the factual gap visible and show why an order is needed before the final hearing.

What the later reference added

The substantive case, East African Law Society and Others v Attorney General of the Republic of Kenya and Others, Reference 3 of 2007, was decided in 2008. It must not be confused with the 2007 interim ruling. In the later judgment, the EACJ considered Article 30 access, Treaty amendment procedure and the need to consult the East African public. It found that failure to carry out consultation beyond the Summit, Council and Secretariat was inconsistent with a Treaty principle and constituted an infringement within Article 30. It did not accept every challenge: for example, it did not find the Secretary General’s transmission of proposed amendments to the Summit within five days to be an infringement of Article 150(5).

Reading the decisions together produces a more complete precedent. Application 9 is authority for standing in the context of an urgent public-interest motion and for the limits of an interlocutory remedy after implementation. Reference 3 is the merits authority for public participation in Treaty amendment and a direct illustration of how a legal association can use Article 30 to test Community and Partner State conduct. The history demonstrates why citations must identify the application or reference number. A lawyer who cites only “EALS v Kenya” risks confusing a ruling that refused temporary relief with a later judgment that found a Treaty breach on consultation.

Although the injunction was refused, the merits process was not pointless. A final judgment could declare a Treaty breach and state the standard for future amendment processes. Interim remedies protect against harm that may be irreversible before trial; final remedies declare obligations and guide future conduct. Where a claimant cannot obtain emergency relief, counsel should preserve the merits by seeking a clear, justiciable declaration and ensuring that the pleadings do not depend entirely on an injunction.

Use under current law

The EAC Treaty remains the regional instrument through which the EACJ ensures adherence to law in its interpretation, application and compliance. Article 6(d) identifies good governance, including democracy, rule of law, accountability, transparency, social justice, equal opportunities and human rights, as a fundamental principle. Article 7(1)(a) describes the Community as people-centred and market-driven, while Article 30 provides the route for legal and natural persons to bring references. The Treaty, rather than a free-standing assertion of general public interest, must anchor the claim. A claimant should identify the specific Treaty obligation, the act or omission said to breach it, the responsible State or institution, and the remedy the Court can grant.

Current access also depends on the procedural rules in force when a new matter is filed. The EACJ publishes Rules of Procedure 2019. Counsel should check the current consolidated Treaty, Article 30 filing period and applicable rule before commencing proceedings; neither this 2007 motion nor an older commentary substitutes for that check. A law society should preserve evidence of legal personality, authority to litigate, member mandate and the connection between the challenged conduct and the Treaty. These points belong in pleadings and affidavits rather than being left to implication.

National standing provisions may offer parallel routes but do not replace Article 30. Kenya’s Constitution Articles 22 and 258 permit public-interest constitutional proceedings. Uganda’s Constitution Article 50 and Human Rights (Enforcement) Act 2019 provide a domestic rights-enforcement path. Tanzania’s Constitution and Basic Rights and Duties Enforcement Act govern constitutional claims. Those laws do not turn the EACJ into a general appellate court over national constitutional questions. Later EACJ practice, including cases cited in the Court Manual concerning the East Africa Law Society and civil-society groups, confirms that legal persons may bring Treaty cases, but the claimant still needs a concrete Treaty duty and a timely, supported allegation of breach.

This distinction is useful when a national constitutional case and a regional reference appear to overlap. The national court may decide whether domestic constitutional guarantees were violated. The EACJ asks whether Partner State or Community conduct infringes the Treaty. An organisation should explain what the regional ruling would add: a common interpretation of a Community duty, a finding about a Community institution, or a remedy directed to Treaty compliance. If the case adds none of these things, domestic procedure may be the more suitable route.

Practical advocacy and the precedent’s limits

For applicants, decide what the Court is asked to do at each stage. A reference seeking a final declaration should set out the breach and evidence. An injunction application should separately explain what step is about to occur, when it will occur, what loss cannot be repaired later and why a narrow order is workable. Do not ask the Court to decide the final merits in the interim motion. For respondents, distinguish legal capacity from the factual basis for each alleged breach and remedy. Evidence showing what has been implemented, what remains reversible and which institution acted is more useful than a bare standing objection.

The lawyers persuaded the Court that the law societies had an authentic interest and that the questions deserved a hearing. They did not persuade it that an injunction could still accomplish the requested purpose after substantial implementation. That result may reflect timing and procedural posture more than poor advocacy. Future counsel can improve the record by identifying the remaining reversible steps, proposing a less disruptive order and explaining how compliance can be supervised. A public-interest case should be designed around a remedy that remains useful on the day the Court rules.

This was an EACJ First Instance ruling. It is binding within the EAC Treaty system in the ordinary sense of a Court decision, subject to later appellate interpretation, and persuasive outside the Community. It does not establish automatic public standing, guarantee an injunction or hold the 2006 amendments invalid. There was no dissenting judgment, so there is no competing judicial interpretation. The case is strongest when used for what it decided: legal associations may be heard on a credible Treaty claim, but temporary relief still depends on evidence, timing and an effective remedy.

The enduring lesson is modest but useful. Regional public-interest litigation can make Treaty accountability practical, but it works best when the claim arrives early, identifies the exact legal duty and asks for a remedy the Court can still make real.

Sources Mentioned in This Case Analysis

The authorities discussed are the Treaty for the Establishment of the East African Community, especially Articles 6, 7, 23, 27, 30, 38 and 150; East African Law Society and Others v AG of Kenya and Others, Application 9 of 2007; East African Law Society and Others v Attorney General of the Republic of Kenya and Others, Reference 3 of 2007, [2008] EACJ 1; Giella v Cassman Brown & Co Ltd [1973] EA 358; Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617; Kenya Constitution 2010, Articles 22 and 258; Constitution of Uganda 1995, Article 50; Human Rights (Enforcement) Act 2019 (Uganda); Tanzania Constitution; Basic Rights and Duties Enforcement Act (Tanzania); and EACJ Rules of Procedure 2019.

Suggested Citation:

Ronald Serwanga, “EACJ Standing for Public Interest Treaty Challenges” East Africa Legal Insight (18 October 2026).

EACJ Standing for Public Interest Treaty Challenges

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