How activists lost EACOP case with costs

Kampala, Uganda | THE INDEPENDENT | The East African Court of Justice (EACJ) has dismissed with costs, a case in which environmental and human rights groups were challenging the construction of the East African Crude Oil Pipeline from western Uganda to Eastern Tanzania. The activists claimed that the heated crude oil pipeline would adversely affect the social and environmental freedoms of the people in Uganda Kenya and Tanzania.

The EACJ upheld the preliminary objection raised by the Tanzanian and Ugandan governments regarding the timeframe within which the case was filed at the EACJ. It held that the applicants should have filed the case as early as 2017 when the preparations for the construction of the pipeline were starting, rather than in 2020.

“…and as a result, the court does not have jurisdiction to hear the matter.” The court thus determined that the applicants, who include the East African civil society organizations, Natural Justice (NJ), Centre for Food and Adequate Living Rights. (CEFROHT), The Center for Strategic Litigation and the Africa Institute for Energy Governance (AFIEGO), are unable to proceed with the merits of the case in the EACJ.

The applicants have vowed to appeal the ruling saying that they believe that the judgment failed to take into consideration pertinent facts that would have allowed the applicants to have the merits heard before the EACJ. “It is a somber day for the millions of East Africans who had anticipated that the court would allow the consideration of evidence concerning the environmental, social, and economic risks of the EACOP project and make a determination on our case based on its merits,” said Dickens Kamugisha, the Chief Executive Officer of AFIEGO said.

He, however, said they will not relent yet. “Despite the setback we have suffered, we remain determined and are prepared to appeal this unjust ruling, firmly believing that the dangers posed by EACOP can and will be stopped.” Lucien Limacher, Head of Defending Rights and Litigation of Natural Justice said that the court should have given them the chance to argue their concerns and evidence instead of relying on technical issues.

“The Court of First Instance for the EACJ failed to provide civil society with the chance to argue their case. This judgment marks a continuation of how the global north and various government institutions in Africa are blind to the destruction of the environment and the impact oil and gas have on the climate,” he said. He accused the governments and investors of minding profits ahead of livelihoods and the environment.

Deus Valentine Rweyemamu, the Chief Executive Officer of CSL rued the “missed opportunity”  to enforce East African Community laws on the environment. “We respect the court’s decision but feel that an opportunity to hold the governments of Tanzania and Uganda accountable for non-compliance with the EAC treaty provisions on the environment and other environmental laws has been missed.” Natural Justice, CEFROHT, CSL, and AFIEGO filed the case on 6 November 2020, with the EACJ, challenging the construction of the EACOP, a project spearheaded by French oil giant TotalEnergies and China’s CNOOC, as well as the governments of Uganda and Tanzania.

They said that the project violated various provisions of the EAC treaty, 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.

They accused the companies of failing to conduct “effective and meaningful public participation and consultation”, and that no human rights and climate impact assessments were carried out before commencing the project.  The applicants claimed that they filed the case within two months of the signing of the Host Government Agreement (HGA) between Uganda and Tanzania in 2020 and were therefore within time as the law sets two months from the time the applicant got to know of the impending violations.

However, the Court ruled that the applicants, even by their own documents to the court, got to know of the project in 2017 when the Intergovernmental Agreement (IGA) was signed between the two respondents. “The Applicants’ own pleadings evince that the IGA was signed in 2017, that the HGA was yet to be signed and Paragraph 38 of the Reference illustrates the indisputable nexus between the IGA and HGA,” says the judges.

They ruled there, that the Applicants had knowledge since 2017 when the  1st and 2nd Respondents entered into the Inter-Governmental Agreement. “This forms the basis for the computation of time. Time starts reckoning from the date the Applicants acquired knowledge, which, in this instance, is 2017. Consequently, when the Applicants filed their Reference on 6th November 2020, this was well over two months after the execution of the IGA. The Reference was therefore time barred.”

The court dismissed the case with costs.

“On the question of costs, Rule 127(1) of this Court’s Rules provides that costs shall follow the event unless the Court, for good reason, decides otherwise. We find no reason to deviate from the general rule. The Reference is accordingly dismissed with costs awarded against the Applicants, jointly and severally.”

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