The appeal, filed by four civil society organisations (CSOs), seeks to have the case reconsidered on its merits after the First Instance Division of the EACJ dismissed it in November 2023 on procedural grounds.
The Appellate Division of the East African Court of Justice (EACJ) recently heard an appeal challenging the dismissal of a lawsuit against the East African Crude Oil Pipeline (EACOP) project.
The appeal, filed by four civil society organisations (CSOs), seeks to have the case reconsidered on its merits after the First Instance Division of the EACJ dismissed it in November 2023 on procedural grounds.
The case was presented before a panel of five judges: Justice Nestor Kayobera, Justice Kathurima M'Inoti, Justice Anita Mugeni, Justice Barishaki Bonny Cheborion, and Justice Omar Othman Makungu.
The appellants--AFIEGO (Uganda), CEFROHT (Uganda), Natural Justice (Kenya), and the Centre for Strategic Litigation (Tanzania)--argued that their lawsuit was dismissed unfairly and that the First Instance Court had improperly evaluated evidence before making its ruling.
Key Arguments Presented by the Appellants
The legal team representing the CSOs presented several points for reconsideration by the appellate judges:
- Contradictions in Government Submissions: The Tanzanian government had provided conflicting timelines regarding the signing of key agreements related to EACOP, which the appellants argued weakened the preliminary objection raised against their case.
- Timeliness of Filing: The appellants maintained that their case was filed within the prescribed time limits under Article 30 of the EAC Treaty, based on when they became aware of the relevant agreements.
- Jurisdiction Issues: The First Instance Division had ruled that it lacked jurisdiction because the case was time-barred. However, the appellants contended that aspects of the case that were not affected by time limitations should have been considered.
- Awarding of Legal Costs: The First Instance Court had ordered the CSOs to cover legal costs for the governments of Uganda and Tanzania, as well as the EAC Secretary General. The appellants argued that such rulings could discourage future public interest litigation.
Dr. David Kabanda, one of the CSOs' lawyers and team leader at CEFROHT, emphasized that the First Instance Court had improperly reviewed evidence while ruling on a preliminary objection, a practice that is not allowed.
"We came to this court because the Tanzanian Solicitor General raised a preliminary objection claiming the case was time-barred. However, the record shows that the judges examined evidence before ruling, which should not have happened at that stage," Kabanda stated.
The appellants' legal team also expressed concerns about the impact of awarding legal costs against civil society groups.
Dr Rugemeleza Nshala, another lawyer for the CSOs, argued that such rulings could have a chilling effect, discouraging East Africans from pursuing justice in future cases.
"Costs have a chilling effect that can stop citizens from pursuing justice. This case affects many people, and we must ensure justice is accessible," Dr. Nshala said.
Ms. Joan Kembabazi, another lawyer for the appellants, added, "It takes courage to take on cases like this, given the stakes.
Penalizing us with costs could prevent others from bringing similar cases in the future."
After hearing arguments from both sides, including legal representatives for Uganda, Tanzania, and the EAC Secretary General, the appellate judges reserved their ruling, stating that it would be delivered "on notice."
What's at Stake for EACOP and Climate Action
The legal battle against EACOP began in November 2020 as part of broader efforts to halt the pipeline's construction.
The 1,443-kilometer pipeline, spearheaded by TotalEnergies and China National Offshore Oil Corporation (CNOOC), in partnership with Uganda and Tanzania, is designed to transport crude oil from Uganda's Lake Albert to the Tanzanian port of Tanga.
Sign up for free AllAfrica Newsletters
Get the latest in African news delivered straight to your inbox
While proponents of the EACOP project argue that it will stimulate economic development, critics--including environmental groups--warn that it poses significant risks, including threats to biodiversity, water sources, and local livelihoods.
Dickens Kamugisha, CEO of AFIEGO, called on Uganda and Tanzania to prioritize climate action over investing in fossil fuel projects.
"African states, given their vulnerability to climate change, should lead by example. Avoiding climate-wrecking projects like EACOP strengthens their position when negotiating with heavily polluting nations," Kamugisha stated.
If the appellate court finds in favor of the appellants, the case will be sent back to the First Instance Division for a full trial based on its merits.
