EALA Removal, Fairness and Remedies in Zziwa's Case
How the East African Court of Justice turned an unlawful removal into an enforceable remedy
The East
African Court of Justice held that EALA’s unlawful removal of Margaret Zziwa
could attract compensation and costs. It also explained why reinstatement was
legally possible but no longer practical, and why an officeholder’s own
procedural breach could not excuse the Assembly’s separate Treaty violation.
Contents
What the dispute was really about
The legal question
The governing rules and fair process
What the Appellate Division held
Why this decision matters for EALA
governance
How the arguments and earlier cases fit
No dissent, but an important split in
reasoning
The practical lesson
What the dispute was really about
Hon. Dr. Margaret Zziwa was elected Speaker
of the East African Legislative Assembly (EALA) in June 2012. In 2014, members
began a process to remove her. After earlier efforts stalled, a group of
members met in Nairobi on 26 November 2014 without her, selected a temporary
presiding officer and referred allegations against her to EALA’s Committee on
Legal, Rules and Privileges. The committee later considered the removal motion
even though several of its members had participated in making the allegations or
were witnesses. EALA ultimately removed Zziwa on 19 December 2014.
Zziwa challenged the process in the East
African Court of Justice (EACJ). The First Instance Division found serious
Treaty and natural-justice defects: the November sitting without the elected
Speaker was unlawful, and the committee was improperly constituted because of
apparent bias. It nevertheless refused reinstatement and damages, reasoning in
part that the Court’s Treaty jurisdiction did not authorise those remedies. It
also denied costs, partly because Zziwa had earlier presided over Assembly proceedings
concerning her own proposed removal.
The appeal was therefore not a fresh trial
about who should be Speaker. It concerned what a regional court can do after it
has found that an EAC organ acted unlawfully. The full citation is Hon. Dr.
Margaret Zziwa v Secretary General of the East African Community, Appeal No. 2
of 2017, [2015–2017] EACJLR 1036 (25 May 2018). The judgment lists the
appellate panel as President Emmanuel Ugirashebuja, Vice-President Liboire
Nkurunziza, and Justices of Appeal Edward Rutakangwa, Aaron Ringera and
Geoffrey Kiryabwire. The First Instance Division panel named in the judgment
comprised Monica K. Mugenyi, Isaac Lenaola, Faustin Ntezilyayo, Fakihi A. Jundu
and Audace Ngiye. The appeal was argued for Zziwa by Justin Semuyaba and Jet
John Tumwebaze; Stephen Agaba appeared for the Secretary General.
The legal question
The central question was whether Articles
23 and 27 of the Treaty for the Establishment of the East African Community
allowed the EACJ to grant effective remedies, including reinstatement and
compensation, when an EAC institution breached the Treaty. The appeal also
asked whether the lower court had wrongly treated Zziwa’s earlier conduct as a
reason to deny costs, and whether she had breached Rule 9(6) of EALA’s Rules of
Procedure by presiding over sittings where her removal was discussed.
For an ordinary reader, the first question
is this: if a court can say that a regional institution broke the law, can it
also order that institution to repair the harm? The answer matters because a
declaration alone may tell the public that a wrong occurred while leaving the
person affected to bear the consequences.
The governing rules and fair process
The dispute arose under the EAC Treaty and
the 2013 EALA Rules of Procedure. Article 23(1) describes the EACJ’s role in
ensuring adherence to law in the interpretation and application of, and
compliance with, the Treaty. Article 27(1) gives the Court jurisdiction over
Treaty interpretation and application, subject to the Treaty’s terms. Articles
53 and 56 governed the Assembly’s procedures for the Speaker and removal
process. Rule 9(6) said that a Speaker facing removal proceedings must not
preside over those proceedings.
The First Instance Division had already
found that the committee process offended natural justice because members who
had taken part in initiating or supporting the accusations also sat in judgment
on them. The familiar rule is that a person should not decide a matter in which
they have a personal interest or have already taken the role of accuser. This
does not prevent an elected assembly from holding its Speaker accountable. It
requires the assembly to use the lawful process and an impartial decision-making
body.
The Appellate Division kept two questions
separate. Zziwa had breached Rule 9(6) when she presided over relevant sittings
in April and June 2014. The Court agreed with the trial judges on that point.
But that breach did not legally justify a later violation of Article 56 by the
Assembly, nor did it erase the separate bias in the committee that dealt with
the removal. One person’s procedural wrong cannot serve as a licence for an
institution to disregard the Treaty.
What the Appellate Division held
The Court allowed the appeal in substantial
part. It held that Articles 23(1) and 27(1) did not confine the EACJ to
interpreting the Treaty or issuing declarations. The Court could award an
appropriate remedy where that was needed to make the Treaty’s rights effective.
It treated EALA’s unlawful removal of Zziwa as conduct attributable to the East
African Community itself. The fact that EALA was functionally independent of
other Community organs did not put it beyond judicial scrutiny.
The Court drew on the law of responsibility
of international organisations, including Articles 3, 4 and 6 of the
International Law Commission’s 2011 Draft Articles on the Responsibility of
International Organizations. In straightforward terms, a regional organisation
cannot avoid responsibility by saying that the act was done by one of its own
organs. The Court’s holding was that a Treaty right must have a practical
remedy when breached; the available response may include restoring the
position, compensation or another remedy suited to the proven harm.
The Court held that reinstatement was
legally available in principle, correcting the First Instance Division’s view
that it lacked power to order it. But it declined to order Zziwa’s return
because the EALA term in which she could have served had ended in June 2017.
Reinstatement at that stage would have been an order the Court could not
practically implement. That distinction is important: the Court recognised the
power but found that the facts no longer supported that particular remedy.
Compensation was available for a
financially measurable loss caused by the Treaty breach. Zziwa had shown that
she continued to receive her ordinary EALA member’s salary but lost the
additional financial benefits attached to the Speaker’s office. The Court
awarded US$114,000 in special damages, with interest at six per cent per year
from 24 February 2015, the date the amended reference was filed, until payment.
It rejected general, aggravated and exemplary damages in the circumstances. The
Court also restored her costs in both divisions and certified costs for two
counsel.
Why this decision matters for EALA governance
The judgment establishes that EALA’s
internal character does not make its Treaty duties optional. Separation of
powers is a way of allocating authority; it is not immunity from legal review.
The Court did not take over the Assembly’s political responsibility to elect or
remove a Speaker. It enforced the legal limits within which the Assembly had to
exercise that responsibility. That balance protects both representative
self-government and the rule of law.
Its natural-justice lesson is practical. A
committee handling allegations against a public officeholder should be formed
so that a reasonable observer can trust its impartiality. Members who are
complainants or material witnesses should not determine the same allegations.
The case does not say that every political disagreement disqualifies a member.
It identifies the concrete danger where accusers and witnesses become
decision-makers in a process affecting an officeholder’s position.
The case also clarifies that a successful
litigant’s own unrelated or earlier procedural breach does not automatically
defeat a Treaty claim. The Appellate Division found that Zziwa’s presiding over
the April and June sittings did not cause the November and December process
challenged in her reference. It called that point a distraction from the
pleaded issue: whether her eventual removal violated Article 56. The Court
nevertheless upheld the conclusion that her conduct breached Rule 9(6). That is
not inconsistent. The breach mattered as a rule violation, but it was neither a
defence to EALA’s later illegality nor a fair basis to deprive her of costs on
a speculative causal theory.
For Community organs, the consequence is
institutional as well as personal. An invalid committee report and unlawful
removal can damage the credibility of the Assembly’s proceedings. A lawful
procedure is not a technical obstacle to governance; it is what makes an
outcome defensible to members and the public.
How the arguments and earlier cases fit
The appeal succeeded in part because
Zziwa’s lawyers connected the Treaty language to the practical need for relief.
They argued that Articles 23 and 27 gave the EACJ more than a power to
pronounce on meaning, and relied on the idea of effective protection associated
with Francovich v Italy in European Community law. They also invoked national
authorities on checks and balances, including Twinobusingye Severino v Attorney
General, Constitutional Petition No. 47 of 2011 in Uganda, and Hon. Martin
Nyaga Wambora v Speaker of the County Assembly of Embu, Petition No. 2 of 2014
in Kenya. Those authorities helped explain why judicial review of a public body
can coexist with separation of powers. They were persuasive examples, not the
source of the EACJ’s jurisdiction; that source was the EAC Treaty.
The Secretary General’s counsel relied on
separation of powers and the South African Constitutional Court’s decision in
Hugh Glenister v President of South Africa to argue that reinstatement would
intrude on the Assembly’s responsibility. That position did not persuade the
Court that judicial review was barred. It did, however, identify a real
remedial limit: the Court could not sensibly put Zziwa back into an Assembly
term that had expired. The Court accepted the factual mootness point while
rejecting the broader claim that reinstatement was unavailable as a matter of
law.
The judgment also demonstrates why damages
must be pleaded and proved with care. Zziwa sought several forms of damages and
described the case in argument as involving human-rights violations. The
Appellate Division observed that the reference had not pleaded a human-rights
claim with sufficient particularity. Counsel’s framing could not substitute for
a pleaded cause of action. The financial claim was stronger because the record
identified the benefits lost, the period of loss and evidence that her member’s
salary continued while the Speaker-related amount was reduced. A claimant
seeking compensation should plead the legal basis, connect the breach to the
loss and preserve clear evidence of each amount.
The Court drew on earlier regional and
national authorities for narrower propositions. It used Chandaria v Ghadially
and the Kenyan Court of Appeal’s decision in Owayo v Aduda to explain why a
trial court should assess quantum even where it rejects liability, allowing an
appeal court to use factual findings if that liability ruling is later
reversed. It referred to Mukisa Biscuit Manufacturing Co. Ltd v West End
Distributors Ltd (No. 2) on when interest runs on a liquidated claim. The
respondent’s reliance on Uganda’s General Parts (U) Ltd v Non Performing Assets
Recovery Trust concerned when an appellate court may interfere with a trial
court’s damages assessment. Each authority addressed a defined issue; none
displaced the Treaty-based remedy rule.
The decision also fits an earlier EACJ line
on access to Treaty enforcement. In Attorney General of the Republic of Rwanda
v Plaxeda Rugumba, Appeal No. 1 of 2012, the Appellate Division held that the
Treaty did not require a claimant to exhaust national remedies before bringing
a Treaty reference. Zziwa addressed the related next question: once a Treaty
breach is established, what remedy can make the right effective? A later
regional example shows how that remedial approach can take a different form. In
Media Council of Tanzania and Others v Attorney General of the United Republic
of Tanzania, Reference No. 2 of 2017, judgment of 28 March 2019, the EACJ
required the respondent to bring the Media Services Act into conformity with
the Treaty. That case concerned a legislative remedy rather than compensation
for an officeholder, but it reflects the same principle: a finding of Treaty
incompatibility should lead to a remedy capable of addressing the breach.
No dissent, but an important split in reasoning
The published appellate judgment contains
one collective decision signed by all five judges; it records no dissenting
judgment. The most useful contrast is between the First Instance Division and
the Appellate Division, not between majority and dissent. The trial judges
correctly identified the defects in the Assembly process, but they took too
narrow a view of the Court’s remedial authority and denied compensation. The
Appellate Division corrected that legal approach, while leaving intact the
finding that Zziwa herself had breached Rule 9(6).
For a reader looking for a practical
interpretation, the case says that courts should examine each alleged wrong,
defence and remedy on its own legal footing. A procedural breach by an
applicant may be relevant to a particular issue, but it should not be used as a
general excuse for a public institution’s separate unlawful act. A remedy must
also match the evidence and the time at which judgment is given.
The practical lesson
For an Assembly or public institution, the
rule is simple: identify the governing procedure before acting, separate
accusers from decision-makers, give the affected person a fair opportunity to
answer the case and keep a record that shows each required step was followed.
If members believe the Speaker has committed misconduct, they can pursue
removal through the Treaty and Assembly rules. An informal shortcut can
invalidate the process and expose the Community to compensation and costs.
For lawyers, Zziwa shows the value of
making the requested remedy part of the legal case from the beginning. Plead
the Treaty provisions, explain why the Court can grant the remedy, identify
whether reinstatement remains practical, and present the financial evidence in
a form the court can verify. If an opposing party raises distracting conduct,
ask whether it is pleaded, causally connected and legally capable of answering
the Treaty claim. And if a trial court finds a breach but declines relief,
challenge the remedial reasoning directly rather than assuming that the
declaration is all the court can give.
The case’s lasting contribution is that accountability within the EAC must be real enough to matter. A court that can identify an unlawful removal but cannot repair its consequences would offer weak protection. Zziwa confirms that the EACJ can award meaningful relief against a Community organ, while requiring each remedy to fit the law, the evidence and the practical circumstances.
Sources Mentioned in This Case Analysis
The authorities discussed are the Treaty
for the Establishment of the East African Community, especially Articles 23,
27, 53 and 56; the East African Legislative Assembly Rules of Procedure 2013,
especially Rule 9(6); International Law Commission, Draft Articles on the
Responsibility of International Organizations, with Commentaries (2011),
Articles 3, 4 and 6; Francovich v Italy (1991) ECR I-5357; Benjamin Leonard
Macfoy v United African Company Ltd [1962] AC 152; Federal Civil Service
Commission v Laoye [1990] LRC 451; Twinobusingye Severino v Attorney General,
Constitutional Petition No. 47 of 2011 (Uganda); Hon. Martin Nyaga Wambora v
Speaker of the County Assembly of Embu, Petition No. 2 of 2014 (Kenya); Hugh
Glenister v President of South Africa, CCT 41/08; General Parts (U) Ltd v Non
Performing Assets Recovery Trust, Civil Appeal No. 9 of 2005 (Uganda);
Chandaria v Ghadially [1962] EA 501; Owayo v Aduda [2007] 2 KLR 140; Mukisa
Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (No. 2) [1970] EA
469; Attorney General of the Republic of Rwanda v Plaxeda Rugumba, Appeal No. 1
of 2012; and Media Council of Tanzania and Others v Attorney General of the
United Republic of Tanzania, Reference No. 2 of 2017 (28 March 2019).
Suggested Citation
Ronald Serwanga, “EALA Removal, Fairness and Remedies in Zziwa’s Case” East Africa Legal Insight (4 October 2026).