East African Court of Justice Orders CSOs to File Supplementary Information in Landmark EACOP Appeal

*By John Kusolo*

In a pivotal development in the legal battle against the East African Crude Oil Pipeline (EACOP), the Appellate Division of the East African Court of Justice (EACJ) has rejected a request by the Tanzanian government to dismiss an appeal filed by four East African civil society organizations (CSOs). Instead, the court has ordered the appellants to submit supplementary information, paving the way for the case to be heard on its merits.

The appeal, filed in December 2023, stems from the dismissal of an earlier case by the EACJ's First Instance Division in November 2023. The initial case sought to halt the EACOP project on grounds of non-compliance with regional and international laws. However, the First Instance Division ruled that the case was filed out of time, leading to its dismissal.

The four CSOs—Africa Institute for Energy Governance (AFIEGO) and Centre for Food and Adequate Living Rights (CEFROHT) from Uganda, Natural Justice (NJ) from Kenya, and Centre for Strategic Litigation (CSL) from Tanzania—disputed this ruling, asserting that their case was filed within the appropriate timeframe.

At a hearing held on November 15, 2024, the Appellate Division, led by Justice Nestor Kayobera, directed the CSOs to file the complete record of proceedings from the First Instance Division by November 29, 2024. The records will include submissions from both the appellants and respondents, including the governments of Uganda and Tanzania, as well as the Secretary General of the East African Community.

Justice Kayobera emphasized that dismissing the appeal at this stage would be inappropriate. “The court cannot dismiss this appeal because a record of proceedings from the First Instance Division is missing. The appellants and respondents had a shared responsibility to ensure that the record of proceedings was filed,” he stated. He further highlighted the public interest in the case, noting the necessity of ensuring fairness and due process.

Other judges present during the hearing included Justice Anita Mugeni, Justice Kathurima M’Inoti, Justice Cheboriona Barishaki, and Justice Omar Othman Makungu.

The Tanzanian Deputy Solicitor General, Mr. Mark Mulwambo, had urged the court to dismiss the appeal, arguing that the absence of the record of proceedings rendered the appeal incompetent. In response, Dr. Rugemeleza Nshala, representing the CSOs, argued that the issue was not one of incompetence but an incomplete record, which could be remedied by filing the required documentation.

The court sided with the appellants, recognizing the appeal's significance in addressing human rights, environmental conservation, and climate change concerns.

Speaking after the hearing, Mr. Dickens Kamugisha, CEO of AFIEGO, described the case as a landmark legal battle. “This is a landmark human rights, environmental conservation, and climate change case. The world is watching to see whether the EACJ will act in the interest of communities, nature, and climate by ordering that the First Instance Court hears our case on its merits,” he remarked.

Mr. Dale Onyango of Natural Justice highlighted the case's impact on local communities. “At the heart of this case is the livelihood of community members who bear the brunt of every delay and adjournment. Nonetheless, we applaud the court for considering the plight of project-affected persons,” he stated.

Ms. Amina Acola, one of the lawyers involved, pointed to the high level of public interest in the case, evidenced by the attendance of EACOP-affected persons from Uganda at the hearing.

One such individual, Mr. Gozanga Kyakulubya, shared his personal experience, saying, “My land was taken for the EACOP, and before I was paid, it was fenced off. We need at least one court to be fair to EACOP host communities, and we hope that the East African Court of Justice will be that court.”

The legal challenge, initially filed in November 2020, is part of a broader campaign to halt the EACOP project spearheaded by TotalEnergies, the China National Offshore Oil Corporation (CNOOC), and the governments of Uganda and Tanzania. The pipeline, set to transport crude oil from Uganda to the Tanzanian port of Tanga, has faced widespread criticism for its potential environmental, social, and climate risks.

The CSOs contend that the project violates international conventions, including the Universal Declaration of Human Rights, the African Charter on Human and Peoples’ Rights, the Paris Climate Agreement, and various regional environmental agreements. They argue that the project has already disrupted communities, displaced landowners, and posed significant risks to critical ecosystems.

The Appellate Division’s directive to file the supplementary information marks a critical step forward for the appellants. Should the court find that the First Instance Division erred in dismissing the case, it could mandate a substantive hearing on the project’s compliance with legal and environmental standards.

As the world increasingly turns its attention to climate justice, the outcome of this case could set a precedent for balancing economic development with the rights of communities and environmental conservation in the East African region.