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Court reserves judgement in case challenging EACOP construction

The East African Court of Justice (EACJ) on Wednesday, April 5, 2023, reserved judgment after hearing arguments for and against the objection to the court’s jurisdiction filed by the Secretary General of the East African Community, the Republic of Tanzania and Republic of Uganda in response to the case challenging the construction of the East African Crude Oil Pipeline (EACOP) until the questions of environmental, social justice, and climate justice concerns raised in the case are heard and determined.

StopEACOP
StopEACOP protesters in Uganda

The matter was coming up for highlighting submissions for the preliminary objection filed by the Respondents: The Republic of Uganda, the Republic of Tanzania, and the Secretary-General to the East African Community.

The preliminary objection sought to dismiss the case before the Applicants got the opportunity to ventilate the real issues at the main hearing. The Respondents’ contention was threefold: One, that the court did not have the power to entertain the case since it was brought outside the statutory period of two months.

Secondly, they contested the jurisdiction of the court to entertain issues of violation of human rights- according to the Respondents, this matter fell outside the court’s purview when human rights issues arose. Finally, the Respondents argued that the matter was not ripe for hearing due to the Applicants’ submission being defective.

The Applicants – Natural Justice, Centre for Strategic Litigation, the Centre for Food and Adequate Living Rights (CEFROHT) Limited, and Africa Institute for Energy Governance (AFIEGO) – asked the court to dismiss this preliminary objection on the basis that it was not properly framed. The nature of the objection raised by the Respondents is argued on points of law only.

The Applicants argued that the issues raised by the Respondents required the court to go into questions of fact, which the court should not consider at a preliminary stage. Specifically, the court could not, at this point, evaluate the contested dates on which The Intergovernmental Agreement and the Host Government Agreement were signed.

On the issue of the submissions being defective, the Applicants argued that court rules did not provide for a specific format for the verification of documents, as such the mode they adopted was sufficient, and in any case, the Respondents had not shown that they were put to any disadvantage by how the Applicants had verified their submission.

Ruling on the preliminary objection will likely be handed down when the court sits again in June or August 2023. If the preliminary objection on the court’s jurisdiction is successful, the case shall be dismissed, and if the court determines that it has jurisdiction, then the matter shall proceed, and will be heard on merits.

Mark Odaga, Attorney, Natural Justice, said: “The importance of this case for biodiversity and millions who stand to be impacted by it remains, making it all the more important that it be considered on its merits. We hope that this will be among the watershed cases that take up and address important issues of development, climate change and its human rights impacts.”

Lucien Limacher, Head of Litigation, Natural Justice: “The East African Court of Justice is a regional court which has jurisdiction to hear human rights issues when a partner state or institution violates the East African Community Treaty. We believe that in this case, the Respondents have not complied with the Treaty on various grounds, specifically provisions linked to human rights and the environment. We are positive that the East African Court of Justice will give an opportunity for the main hearing to be held and that the issues detailed in the main submission be heard and debated.”

Diana Nabiruma, Senior Communications Officer, AFIEGO: “Communities have suffered various impacts such as decreased family incomes, school dropouts, family breakdowns and mental anguish due to the human rights abuses seen under the EACOP project. The communities deserve justice, and it is our hope that the EACJ will expeditiously hear the main case and dispense justice.

Rachael, EACOP-affected community member, Hoima District, Uganda, said: “We are not against government projects, but we are really worried about environmental degradation and climate change. Our wetlands like Kanywabarongo in Hoima and water wells are drying up due to climate change and environmental degradation. We are worried about the future of our children.”

Christopher, EACOP-affected person, Kikuube District, Uganda: “When the EACOP project came to our area, we were told that we were going to become rich. However, we were paid very little compensation and stopped from using our land. We borrowed money and were left worse off. The project has brought us problems, instead of the promised development. Courts should ensure that projects respect people’s rights.”

Richard, EACOP-affected community member, Kyotera District, Uganda: “I am ready to go to court, be it in France, East Africa or Uganda, to get justice. We have attachments to our land, and we would want our children to inherit it. No one listened to our lease idea. Now the Total Energies’ people are paying us very little money and the people who are resisting are afraid that they will be arrested. Courts should help us by ensuring that our rights are upheld, and the environment is protected.”

On November 6, 2020, Natural Justice, Centre for Strategic Litigation, the Centre for Food and Adequate Living Rights (CEFROHT) Limited, and Africa Institute for Energy Governance (AFIEGO) filed a case against the governments of Uganda and Tanzania and the Secretary General of the East African Community (EAC), challenging the construction of the EACOP at the EACJ. The applicants also applied for a temporary injunction to stop the construction of the EACOP until the questions of environmental, social justice, and climate justice concerns raised in the case are heard and determined. This application is yet to be determined by the Court.

The Applicants’ case is premised on grounds that the EACOP project contravenes various provisions of the treaty of the East African Community; the Protocol for the Sustainable Management of the Lake Victoria Basin; the African Charter on Human and People’s Rights; the African Convention on Conservation of Natural Resources; the post-2020 Convention on Biological Diversity and the Paris Climate Accords.

Moreover, the applicants contend that the project proponents, including French oil giant Total Energies, China’s National Offshore Oil Corporation, and the states of Uganda and Tanzania did not conduct effective and meaningful public participation and consultation, and neither did they conduct both human rights and climate impact assessments before the commencement of the EACOP project. 

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