REGIONAL LEGAL SYSTEMS: The Case of the East African Community+

Wauna Oluoch, O.L

Abstract

Regional economic integration among states is now a phenomenon of

international relations. Through it, states seek to enhance their competitiveness

in the globalized world and secure their national interests. The success of

regional trade agreements depends on the nature of institutions charged with

the responsibility of driving the regional agenda. One such institution is a judicial

body which ordinarily oversees adherence to and compliance with established

rules and obligations. Such body holds the system together by ensuring that

every participant discharges its functions within the confines of the law. The East

African Court of Justice is the judicial body of the East African Community. It is

the central pillar of the regional legal system.

Introduction

Regional integration between developing countries is one of

the vital steps towards lifting their economies leading to

integration into the global market. It is only through

participation in the world economy that poor countries can

achieve development. Such a framework would promote trade

and create the necessary infrastructure for investments.

Moreover, such integration would improve understanding and

+ This paper reflects the position as of January, 2008. LL.B (Nairobi), LL.M (Bremen), teacher of law; School of Law; University of Nairobi, Advocate of the High Court of Kenya

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co-operation between the states involved and thereby

contribute to peace. It would provide a forum for dialogue

between the states in the event of problems, be they

economic, social or political and provide an opportunity for

together finding solutions. In other words, such integration

would also evolve a culture of interdependence between

states and promote unity among them and provide away out of

the senseless conflicts that have dogged African countries

for over 4O years.

As Hazlewood rightly affirms, the low level of development

and the low level of intra-African trade make the question

of economic co-operation a fundamental one. Consequences of

co-operation such as a customs union would provide a larger

market for existing enterprises while at the same time

acting as stimulus for the creation of new productive

capacity.1

But every regional scheme involving sovereign states must be

premised on a sound legal framework to ensure success and

sustainability. The legal framework will concretize the

agreement of the state parties on such critical issues such

as limitations on sovereignty, the powers of regional

institutions and the enforcement of regional obligations.

The legalization of a regional scheme ensures certainty and

1 See A, Hazlewood ‘Problems of Integration among African States’, in A.Hazlewood (ed.), ‘African Integration and Disintegration’ (1967)7-8

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predictability regarding the rights and obligations of all

the parties. Without certainty and predictability within

the legal system, the regional objectives may not be readily

realized.

Despite knowledge by African peoples that the future and

survival of African Countries lie in their co-operation with

each other2, several attempts at regional and continental

co-operation are yet to result into success stories. This

may be attributed to weak legal structures and enforcement

mechanisms coupled with lack of political will.

It is against this background that the signing of the East

African Community Treaty (Treaty)3 in November, 1999 by the

three East African States to establish an East African

Community (EAC), twenty two years after the collapse of the

former East African Economic Community, is seen as a

positive development for the region and Africa at large.

However the best international agreement is not worth very

much if its obligations cannot be enforced when one of the

signatories fails to comply with any of the obligations. An

effective mechanism to settle disputes and enforce the

2 At the fourth meeting of the ECA in Lusaka, “the delegates restated their unanimous view that increased co-operation among African states was required in order to promote intra- African trade, industrializationand economic development in general.” See Ibid, p. 253 The Treaty entered into force on July 7, 2000.

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obligations of parties thus increases the practical value of

the commitments the signatories undertake in an

international agreement.4 Alive to this truism and driven by

a desire not to repeat the past failures5, the fathers of

the East African Community (Community) provided for the East

African Court of Justice (the Court) as the organ within the

Community charged with the duty of ensuring adherence to law

in the interpretation and application of and compliance with

the Treaty 1999.6 The Court is therefore the central pillar

of the Community’s legal system.

The Treaty which establishes the Community under article 3

states its main objective as developing policies and

programmes aimed at widening and deepening cooperation

among the Partner States in political, economic, social and

cultural fields, research and technology, defence, security

and legal and judicial affairs, for their mutual benefit.7

To attain the objective, various organs and institutions of

the Community are established under article 9, one of which

is the Court.

4 WTO Secretariat ‘A Handbook on WTO Dispute Settlement System’ (2005)15 The first post independence attempt at East African regional integration collapsed in 1977 mainly due to weak and inadequate regionalinstitutions and organs.6 Article 23. The other organs established under article 9 of the Treatyare the Summit, the Council, the Co-Ordination Committee, the Sectoral Committees, the East African Legislative Assembly and the Secretariat.7 Art. 5(1) of the Treaty.

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This article sets out to examine the mechanisms for

protection of rights and enforcement of obligations within

the Community. Towards this end, the structure of the Court

will be discussed by looking at the appointment and removal

of the Judges of the Court, the jurisdiction of the Court,

its administration and procedures and the legal system of

the Community as founded under the Treaty.

In the discourse, we will interrogate the capacity of the

Court to adjudicate on human rights matters in view of the

draft Protocol that seeks to extend the jurisdiction of the

Court to human rights cases, among others. The ability of

the Court to cope with the extended jurisdiction on human

rights and how this may affect its functions as a regional

Court will be considered.

But first, there is need to appreciate the important role

that could be performed by judicial organs to effectuate

regional integration initiatives.

The Role of a Judicial Body in an Integration Scheme

By signing and ratifying international treaties, State

Parties bind themselves to the stated objectives and

obligations. The State Parties are under an obligation in

public international law to respect and discharge their

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treaty obligations in good faith. However, there are bound

to be disputes between Member States and between the Member

States and their subjects regarding interpretation and

application of various provisions of the Treaty, especially

where such treaty accords rights to individuals. Further,

practice shows that Member States in most cases disregard

their international obligations where there is no compulsion

to comply.

The need for an effective dispute settlement system and

enforcement mechanism within a regional trade scheme need

not be gainsaid. An organ must be mandated under such scheme

to interpret and apply the law of the scheme and determine

disputes that arise over implementation of the obligations

by Member States.

To accomplish this task, the organ must have the character

of a judicial body with the power to issue binding and

enforceable decisions. As a creature of the constituting Act

of the scheme, such a judicial body will be guided in its

operations by the objectives and fundamental principles of

the integration scheme. It will necessarily have a

commitment to the pursuit of integration of the Member

States through the law. In this regard, the body will follow

a maximalist interpretation of the authority and effect of

law governing the regional scheme, of the regulatory

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competence of the institutions and of its power to control

both institutions and the Member States to ensure that the

law of the scheme is observed.

Integration schemes therefore require a strong judicial body

to drive the regional agenda. Through judicial creativity,

the body will develop general principles of law to govern

the activities of the Member States and the institutions

acting within their various spheres of competence within the

regional system.

The Treaty establishes the Court as a judicial organ of the

Community.

Composition of the Court

The Court is composed of a maximum of six judges appointed

by the Summit8 from among persons recommended by the Partner

States who are of proven integrity, impartiality and

independence and who fulfil the conditions required in their

own countries for the holding of such high judicial office,

or who are jurists of recognized competence, in their

respective Partner States. Each Partner State may only

recommend two Judges for appointment to the Court.9 Of the

8 The Summit is composed of the Heads of States/Governments of the Partner States.9 Art. 24 (1) and (2) of the Treaty.

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six Judges appointed, two from different Partner States

shall be appointed by the Summit as the President and the

Vice President of the Court. The office of the President of

the Court, which is responsible for directing the work of

the Court, is to be held in rotation between the Partner

States after the expiry of any one term10.

The appointment of the Judges of the Court are done by the

Governments of the Partner States thereby rendering there

appointments political. As concerns the incumbent Judges of

the Court, once each Partner State had recommended two

Judges for appointment, the Summit merely rubber-stamped the

same. The Treaty is silent on whether the Summit must

satisfy itself that the persons recommended for appointment

meet the specified qualifications. Neither is there any

evidence to suggest that the Summit scrutinized the

qualifications of the persons recommended for appointment by

the Partner States. The appointment procedure therefore does

not rule out political patronage of the Judges of the Court

which may tremendously affect their independence in

discharging their functions.

The Treaty is also not clear on whether a Judge appointed to

the Court should cease to hold any national judicial office

forthwith. Article 43(2) of the Treaty provides that a Judge

10 Art. 24(5) and (6) of the Treaty

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of the Court shall neither hold any political office or any

office in the service of a Partner State or Community nor

engage in any trade, vocation or profession that is likely

to interfere or create a conflict of interest to his or her

position. Thus according to this article, once appointed, a

Judge of the Court should cease holding any public office in

the Partner State, including the office of a judge. However,

it has been argued that the article does not apply during

the time when the Court operates on ad hoc basis in

accordance with article 140(4) of the Treaty. This argument,

in my view and with due respect, cannot stand given the

plain meaning of the two articles.11 Despite the clear

mandatory requirements of article 43 of the Treaty, all

Judges of the Court were sitting Judges in their national

courts at the time of appointment and five continue to hold

their national judicial offices.12 This raises the issue of

conflict of interest especially where there is a possibility

of such Judge handling matters touching on Community law in

national courts at the same time will be present at the

11 See R.E. JOHN, ‘The State of Constitutional Development in East Africa: The Role of the EAC’( 2003) 10 at http://kituochakatiba.co.ug/Constm%202003%20Ruhangisa%20EAC.pdf accessed on 13 November 200612 The nominees from Kenya, Hon. Justice Moijo M. Keiwua, the President of the Court, is a Judge of the Court of Appeal of Kenya, though currently under suspension pending the recommendation of a tribunal investigating the issue of his removal from office, and Hon. Justice Kasanga Mulwa, was a Judge of the High Court of Kenya at the time of appointment but has since resigned as a Judge of the High Court of Kenya. The other four Judges from Tanzania and Uganda are also Judges intheir respective home countries.

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Court to determine matters referred to the Court by national

courts for preliminary rulings. This position does not augur

well for the supervisory role of the Court in matters of

Community law throughout the Community. It is further

important to note that despite the Treaty providing for

appointment of jurists of recognized competence in their

domestic jurisdictions, none was recommended for appointment

by any Partner State. It therefore appears that the

opportunity was used by the Partner States to reward their

cronies in their national judiciaries.

The Judges of the court are to hold office for a term of

seven years unless he or she resigns or attains the age of

seventy (70) years of age or dies or is removed from office

in accordance with the provisions of the Treaty.

For the first six Judges appointed to the Court, the terms

of two of them shall expire at the end of five years, that

of the other two expires at the end of six years while the

term of the remaining two is to expire after a full term of

seven years. Immediately after their appointments, the

Summit chose by lot the Judges whose terms are to expire

after five, six and seven years respectively.13 The current

Judges of the Court were sworn in on the 30th November

13 Art. 24(2) and (3) of the Treaty. This provision is intended to ensure continuity of the operations of the court by guaranteeing the availability of at least 4 Judges at any one given time.

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2001and accordingly the term of two Judges is due to expire

in November 2007.

The President of the Court or other Judge of the Court

cannot be removed from office except by the Summit for

misconduct or for inability to perform the functions of his

or her office due to infirmity of mind or body and only

after the question of his or her removal from office has

been referred to an ad hoc independent tribunal, comprised

of three eminent Judges from the Commonwealth of Nations,

appointed by the Summit and the tribunal has duly

recommended such removal by reason of misconduct or

inability to perform the functions of his or her office14.

The Judges of the Court therefore enjoy security of tenure

once appointed. Thus before the removal procedure of any

Judge may be ignited, there must be a strong political will

of the Partner States through the Summit.15 Because of lack

of political will, the two Judges from Kenya still hold

their offices at the Court even after allegations of

corruption were brought against them back home in 2003

leading to suspension of one and early retirement of the

other.16 The consequence is that despite their questionable

background, the two continue to administer justice in the14 See Art. 26(1-4) of the Treaty15 The decisions of the Summit are by consensus in accordance with art. 12(3) of the Treaty.16 See Note 11.

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Court thereby greatly undermining the reputation of the

Court as a judicial institution.

There is therefore urgent need to reform the Treaty in view

of the emerging circumstances and realities in order to

enhance the independence and effectiveness of the Court. The

Court must not only be independent in practice but must be

seen to independent especially by reference to the procedure

for appointment of Judges.

The qualifications of the Judges and their independence are

crucial for the purposes of discharging the Court’s

jurisdiction as provided for under Community law.

Jurisdiction of the Court

Currently the Court has only jurisdiction over

interpretation and application of the Treaty. Its

jurisdiction may however be extended to include original,

appellate and, or human rights as may be determined by the

Council17.

The Court also has jurisdiction to hear and determine

disputes between the Community and its employees arising out

of terms and conditions of their employment and, or the

17 Art. 27 of the Treaty

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application and interpretation of the rules and regulations

and terms and conditions of service of the Community.18

Moreover the Court may have jurisdiction under arbitration

clauses in contracts or agreements or under special

agreements between parties to a dispute. For instance, the

Court may hear and determine any matter arising from an

arbitration clause contained in any contract or agreement

which confers it jurisdiction where either the Community or

any of its institutions is a party. Further, the Court has

jurisdiction over disputes between the Partner States

regarding the Treaty where such dispute is submitted to it

by the Partner States under a special agreement. Finally,

parties to a commercial contract or agreement may under the

arbitration clause confer jurisdiction on the court to

arbitrate any disputes between them under the contract or

agreement.19

The Court also performs advisory function to the Summit, the

Council or the Partner States on any question of law arising

from the Treaty which affects the Community.20

The limited jurisdiction accorded to the Court under the

Treaty is yet to be fully utilized. Even though the Court

18 Art. 31 of the Treaty19 Art. 32 of the Treaty20 Art. 36(1) of the Treaty

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became operational on 30th November 2001, it was not until

7th December 2005 when the Court’s registry received its

first case.21 The implication is that the people of the

Community are yet to discover the potential of the Court in

adjudicating matters. There is need for a deliberate

programme by the Community to encourage the invocation of

the Court’s jurisdiction by the people of the Community.

Foremost, the Community and its organs should maximize their

right of access to the Court to exemplify the role and

functions of the Court as a judicial body of the Community.

In my considered view, the limited jurisdiction of the Court

within the Community is adequate for the purposes of driving

the regional agenda if used effectively. It is only through

cases and references that the Court will be able to reaffirm

the application and authority of Community law. The Court’s

jurisprudence will offer standard of measure for the Partner

States more particularly in human rights and fundamental

freedoms, these being among the fundamental principles of

the Community.22

One of the reasons for the underutilization of the Court may

be lack awareness of its Rules of Procedure, which were

developed in 2004, within the Partner States.21 The case of Calist Andrew Mwatela & 2 Others v. EAC, Application No. 1 of 2005(Unreported). The case is available at www.eac.int accessed on 10

November 200622 See Art. 6(d) of the Treaty

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Administration and Procedures of the Court

A Registrar appointed by the Council is responsible for the

day to day administration of the Court. In discharging his

duties, the Registrar is answerable to the President of the

Court. A registrar of the Court should be qualified to hold

such office in his/her respective Partner State.23

Pursuant to article 42 of the Treaty, the Court has made

Rules of Procedure (Rules) regulating the conduct of

business of the Court24. Under Rule 7, the registrar is

given further functions and powers. These include being

responsible for acceptance and custody of documents and

effecting service of process of the Court. He/she is also

the custodian of the seal of the Court and is responsible

for records and publications of the Court. His/her

administrative work encompasses accounts and finances of the

Court. The registrar is also the taxing officer of the

Court.25

The quorum of the Court is three Judges, one of whom must be

the President or Vice President of the Court. However, a

full bench of five Judges may be established by the23 Art. 45(1) of the Treaty24 The EAC, Arusha, Tanzania, Rules of Procedure, 2004, available at www.eac.int accessed on 13 November 200625 Rule 77 of the Rules

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President or the Court upon application by a party where a

matter before the Court is of public importance or involves

conflict of or complex laws.26 Interlocutory matters such as

application for extension of time are to be dealt with by a

single Judge.

All interlocutory applications before the Court are by way

of motion in the form prescribed in the Schedules to the

Rules stating the grounds of the application. The

application is to be supported by affidavit(s) and must be

notified to the parties affected by the application before

the same may be heard by the Court. There is however

provision for ex parte hearing and interim orders where there

is danger of irreparable damage if the ordinary inter partes

procedure is followed27.

Under Rule 20, references under articles 28, 29 and 30 and

requests for advisory opinions of the Court under article 36

are to be instituted by presenting an application to the

Court stating the names, designation and address of both the

applicant and the respondent, the subject matter of the

reference and a summary of the points of law on which the

application is based, the nature of evidence offered in

support and the orders sought. Where the reference seeks26 Rule 5 of the Rules.27 See Rules 17 and 19. Article 39 of the Treaty gives the Court the power to grant interim orders where it so deems necessary in the circumstances of each case.

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annulment of an Act, regulation, directive, decision or

action, the application has to be accompanied by documentary

evidence of any such instrument.28

The Rules however do not specify the nature of the

application, whether it is by way of a motion or summons and

neither is a form provided as in the case of interlocutory

application. This leaves room for uncertainty and may need

to be settled by a reform of the Rules.

On the other hand, an employee of the Community is required

to institute any claim against the Community by presenting a

statement of claim stating the name, designation and address

of the claimant and the respondent, a concise statement of

facts on which the claim is based and the law applicable and

the orders sought. Upon filing of a claim or reference, the

Registrar is to issue a notification requiring the

respondent to file a statement of defence or reply to the

application respectively.29

Rule 38 requires that there should be annexed to the

original of every pleading filed in the Court certified

copies of any relevant document in support of the

contentions contained in the pleading. A list of all

28 Rule 2029 See Rules 21 and 22 of the Rules

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documents annexed to the pleading has to be filed alongside

the pleading.30

There is provision for pre-trial proceedings in the form of

a scheduling conference to be held within fourteen days

after close of proceedings. The purpose of the conference is

to ascertain points of agreement and disagreement between

the parties, the possibility of mediation, conciliation or

other any other form of settlement, whether evidence is to

be oral or by affidavit, whether legal arguments should be

written or oral or both, the estimated length of the hearing

and any other matter as the Court may deem necessary.31

The Court may issue witness summons to a party in a

reference or a claim upon application by the party. Such a

party shall be responsible for the witness expenses. The

Court is empowered to summon any person to give evidence or

produce a document on its own motion if in its opinion such

evidence or document is essential for the just determination

of any matter before it. In such event, the Court will be

responsible for the expenses of such a witness.32

The requirement for parties to meet witness expenses may act

as a bar of indigent litigants within the Community from30 The Rules define a ‘pleading’ to include any document relating to a reference or any case before the Court.31 Rule 52 of the Rules32 See Rules 55 and 56

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accessing the Court. This is not in the best interest of the

Court more so given that it is currently at establishment

stage and therefore as many matters should be filed before

it as possible in order that it may entrench itself within

the Community as intended under the Treaty. There ought to

be a rule permitting indigent litigants to apply to the

Court for summoning of important witness at Court’s expense

where justice demands the attendance of such witness.

The proceedings of the Court are to be held in open court

except where the Court deems the existence of sufficient

cause to hold the proceedings in camera.33 Evidence of

witnesses before the Court are to be recorded by the

official Court recorder and the record of each hearing shall

be signed by either the President or the Vice President and

shall be kept and maintained by the Registrar.34

The Court upon hearing a matter is to give one judgment

signed by all the Judges who were seized of the matter

except where there is a dissenting Judge who may, in his/her

discretion, write a dissenting judgment.35

Costs in all proceedings before the Court shall follow the

event unless the Court for good reasons orders otherwise.36

33 See Rule 5834 Rule 6335 Rule 66(4)36 See Rule 75

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There is provision for Court fees in respect of all matters

and services by the Court under the third Schedule to the

Rules. The fees are to be paid in U.S dollars as opposed to

the currency of the Partner State in which the Court has its

seat. The provision for court fees in US dollars is surely

contra the spirit of the Community. It further makes the

Court accessible to the affluent in the Community thereby

alienating it from the ordinary people. Moreover, the Rules

do not provide for waiver of court fees especially where one

cannot afford the same thereby ruling out access by the

poor.

The registry of the Court is at its seat which is

temporarily in Arusha, Tanzania with sub-registries in the

High Courts of the Partner States. However, there is yet to

be any clear guidelines on the operation of the sub-

registries and their coordination with the registry in

Arusha. The national sub-registries should be promoted and

operationalized to enable people have easy access to the

Court from every Partner State.

The Court, national courts of the Partner States within

their competences and Community law make up the legal system

of the Community.

The Legal System of the Community

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The Treaty may be described as the Community’s Constitution.

However the Court is yet to develop constitutional law of

the Community through decisions, rulings and advisory

opinions37. It is noteworthy that the Court has the

potential to drive the Community’s integration by ensuring

observance of Community law within the Community.

The Treaty, the Protocols under the Treaty, Acts,

directives, regulations, the acts and decisions of the

organs and institutions of the Community in the course of

their operations as provided under the Treaty, binding norms

of international law and general principles of law together

with the judicial decisions of the Court constitute the body

of sources of law of the Community.

The Community has a regional legal capacity within Partner

States with the power to sue38 and be sued in its own name

and an international legal personality39. The international

legal personality enables the Community to conclude treaties

with other States and, or international organizations. The

Community is therefore a subject of international law and

may acquire rights and obligations through its actions in

the international plane.37 The first judgment of the Court was delivered in October 2006 in the case of Calist Andrew Mwatela & 2 Others v. EAC, Application No. 1 of 200538 See Art. 4 of the Treaty39 Art. 38 of the Treaty

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The Partner States are obligated to abide by the principle

of good governance which means adherence to the principles

of democracy, the rule of law, social justice and protection

of human rights40. These principles inform the operation of

the Community’s legal system.

Under article 8(1) (c) of the Treaty, every Partner State

shall abstain from any measures likely to jeopardize the

achievement of the objectives or the implementation of the

provisions of the Treaty. This provision provides the basis

for a system of remedies for enforcement of Community law

against Partner States both before the Court and national

courts.

Article 9(4) of the Treaty commands organs and institutions

of the Community to act within their powers as provided

under the Treaty. The consequence is that any infringement

of this requirement establishes a ground for action against

any such organ or institution.

To ensure compliance and enforcement of Community law,

article 28 of the Treaty gives power to any Partner States

to cite another Partner State before the Court for failure

to observe Community law. A Partner State may also bring the

40 Art. 7(2) of the Treaty

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question of legality of any Community law or action before

the Court for determination.

Article 29 of the Treaty gives the Secretary General of the

Community standing before the Court. It provides that he/she

may bring an action against a Partner State before the

Court, subject to approval of the Council, for failure to

fulfil an obligation or for infringing a provision of the

Treaty.

The Treaty also permits individuals, both legal and natural,

to refer any matter regarding the legality of any Community

law, regulation, directive, decision, action or measure by

any Community organ or institution or a Partner State to the

Court for determination.41

Every Partner State or the Council must take, without delay,

the measures required to implement any judgment or ruling of

the Court which are final, binding and conclusive unless and

until varied after a review by the Court42. Failure to abide

by this obligation by a Partner State may invite sanctions

against her as determined by the Summit43 or even suspension

from the Community where such failure affects the attainment

41 Art. 30. The first case before the Court (note 36 above) was filed under this provision.42 See art. 3543 Art. 143

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of the fundamental principles and objectives of the

Community44.

A Partner State found to be guilty of gross and persistent

violation of the principles and objectives of the Treaty by

the Summit may be expelled from the Community upon being

given twelve months’ written notice.45

Judgments of the Court are final, binding and conclusive

unless reviewed by the Court46. Pecuniary judgments of the

Court are to be enforced in accordance with the civil

procedure of the Partner State in which it is to be

enforced.47 However it is not clear whether the national

enforcing court may entertain an application to stay the

execution of a decree of the Court or even whether the court

may stay the execution and refer the matter back to the

Court for determination. These are some grey areas which may

undermine the enforcement of the Court’s judgment in Partner

States. Because the Treaty and the Rules are silent on the

same, it appears that national courts are at liberty to deal

with interlocutory matters touching on the execution of a

judgment of the Court as if they are the court which issued

the decree. This will lead to different and conflicting

rulings on enforcement of judgments of the Court in Partner44 Art. 14645 Art. 14746 Art. 3547 See art. 44 of the Treaty

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States within the Community, a situation that will

compromise the certainty and predictability of Community

laws.

The Treaty establishes rights and obligations of Partner

States and the Community which are directly enforceable as

the same are self executing. For instance, article 75(4)

obligates Partner States not to impose any new duties and

taxes or increase existing ones in respect of products

traded within the Community. Further a Partner State shall

refrain from enacting legislation or apply administrative

measures which directly or indirectly discriminate against

the same or like products of the Partner State.48 Article

80(1)(h) obligates Partner States to take measures to avoid

double taxation within the Community while article 83(2)(a)

requires Partner States to remove all exchange restrictions

on imports and exports within the Community and liberalize

financial sectors by freeing and deregulating interest

rates.49

Community law penetrates into national legal systems of

Partner States and is to be applied by the national courts.

Thus every Partner State is to secure the enactment and

effective implementation of legislation as is necessary to

give effect to the Treaty. Such legislation must confer on

48 See art. 75(6).49 Art. 83(2)(d) of the Treaty

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the legislation, directives and regulations of the Community

and its organs and institutions the force of law within the

Partner States.50

In the interplay of Community law and national laws of the

Partner States, Community law takes precedence over similar

national ones and Partner States undertake to make necessary

legal instruments to confer precedence of Community organs,

institutions and laws over similar national ones.51 The

wording of this provision makes it self executing and its

violation grounds a right of action by any person and, or

organs empowered to bring cases before the Court.52

Persons within the Community may therefore rely on Community

law before national courts of the Partner States in as far

as Community law accords them rights which national courts

are bound to protect. Under Community law, national courts

are also responsible for enforcement of Community law.

Article 33 of the Treaty provides that except where

jurisdiction is conferred on the Court by the Treaty,

disputes to which the Community is a party shall not on that

ground alone, be excluded from the jurisdiction of national50 See art. 8(2) (a) and (b).51 Art. 8(5) of the Treaty52 This particular article has not been complied with by the three founding Partner States in their legislations domesticating the Treaty: The Treaty for the Establishment of the East African Community Act, 2000of Kenya; The Treaty for the Establishment of the EAST AFRICAN COMMUNITY, No. 4 0f 2001 of Tanzania; and the East African Community Act, 2002 of Uganda.

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courts of the Partner States. However, in enforcing and

applying Community law, the decisions of the Court on

interpretation and application of the Treaty shall have

precedence over decisions of national courts on similar

matters.

To avoid conflicts between decisions of the Court and

national courts, article 34 requires national courts to

refer issues of interpretation or application of the Treaty

or validity of any Community law, decision, directive or

action to it for preliminary rulings before such national

court may give its decision.53 The implication of this

provision is therefore that only the Court has power to

invalidate any law of the Community.

It is therefore apparent that effective implementation and

enforcement of Community law requires effective cooperation

between national courts of the Partner States and the Court.

This cooperation is even more crucial in enforcement and

protection of human rights within the Community.

The Human Rights Jurisdiction

53 The decision to refer any issue to the Court is however discretionaryand further national courts are not bound to apply the interpretation ofthe Court on any issue they refer to it.

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Pursuant to article 27(2) of the Treaty, the Secretariat of

the Community developed a draft Protocol (Protocol)54 for

expansion of the jurisdiction of the Court in 2005. The

Protocol, which is still under discussion and consultation

within the Community, provides for human rights jurisdiction

of the Court, among others.55

In the preamble of the Protocol, Partner States recognize

and reaffirm there adherence to the principles of human and

peoples’ rights, freedoms and duties as enshrined in

international human rights declarations, conventions and

other instruments to which they are a party. They further

acknowledge the fact that the unity of the people within the

Community can be better achieved through maintenance and

further realization of human rights and fundamental

freedoms. It is further emphasized in the Protocol that

belief in human rights and fundamental freedoms, the

foundation of justice and peace in the world, are best

maintained by an effective political democracy and a common

understanding and observance of the human rights.

Building on this foundation, the Protocol provides for the

human rights jurisdiction of the Court in Part C. Under

article 9 of the Protocol, the Court is to have original

54 The Protocol may be obtained from the EAC Secretariat upon request through www.eac.int55 These are original, appellate and Alternative Dispute Resolution.

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jurisdiction in the disposition of all human rights matters

referred to it. Its human rights jurisdiction covers all

cases and disputes submitted to it concerning the

interpretation and application of universal instruments for

the promotion and protection of human and peoples’ rights.

Such application and interpretation of the international

human rights instruments must be consistent with

internationally recognized human rights principles.56

The Community and Partner States have right of access to the

Court on matters concerning human rights. The Court in its

discretion may entitle relevant NGOs with observer status

before the Community and individuals to institute cases on

human rights before the Court alleging violation of any

human rights instruments by a Partner State who is a

signatory thereto.57 National Commission on Human Rights of

a Partner State may appear as a party before the Court in

all cases on human rights.58 This by implication means that

National Human Rights bodies may also institute proceedings

before the Court concerning human rights violations within

their domestic jurisdictions.

The Protocol provides for exhaustion of all local remedies

before the Court may entertain a matter. The Court will only

56 See Art. 10 of the Protocol57 See Art. 11 and 13(1) of the Protocol58 Art.12 of the Protocol

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deal with a matter after all domestic remedies have been

exhausted and within a period of six months from the date

when the final domestic decision was taken59. However, this

does not bar application for judicial review of an act of a

Partner State by an aggrieved individual alleged to have

infringed his/her fundamental rights.60 The judicial review

provision is important as it acts as a safeguard against

time delays in determination of cases by national courts.

Any act or omission of any public body or official resulting

in violation of an individual’s human rights and freedoms is

amenable to judicial review by the Court and the same may be

quashed and, or prohibited as the case may be in the

circumstances, notwithstanding that no case has been filed

in the national courts on the same matter.

The Court may give an advisory opinion to any Partner State

upon request on any matter concerning any international

human rights instruments. In providing advisory opinions,

every Judge shall be entitled to write a separate or

dissenting opinion.61

Article 32 of the Protocol provides that upon its entry into

force, the Partner States Judicature Acts and Appellate

Jurisdiction Acts in force at the time shall be amended to

59 See art. 14 of the Protocol60 The Protocol, art. 1561 Ibid, art. 16

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be consistent with its provisions. This provision is not

adequate given the nature of the Partner States legal

systems. It is silent on the provisions of the Constitutions

of Partner States establishing their various Judiciaries and

therefore conflict with the Treaty and the Protocol which

create the Court outside these Constitutions. For instance,

the Kenyan judiciary and the court system are established by

the Constitution. Section 60 of the Constitution

specifically establishes the High Court of Kenya as a

superior court of record with original jurisdiction in both

criminal and civil matters. Under section 84 of the

Constitution, the High Court is given original human rights

jurisdiction. Section 64 of the Kenyan Constitution also

establishes the Court of Appeal of Kenya as a superior court

of record in Kenya with appellate jurisdiction over appeals

from the High Court. Any interference with the

jurisdictions of the two courts as conferred by the

Constitution must involve an appropriate amendment of the

Constitution. Without an appropriate amendment of the

Constitutions, the provisions of the Treaty and Protocol

remain inferior to the Constitutions and in the

circumstances null and void ab initio.62

62 In the case of East African Community v. Okunda (1970) E.A 457, at 460, the Court of Appeal of Kenya held that the Constitution of Kenya is paramount and any law, whether it be of Kenya, of the Community or of any other country which has been applied in Kenya, which is in conflict with the Constitution is void to the extent of the conflict. This decision though concerning the first Community, is still binding in Kenya. See also section 3 of the Kenyan Constitution which provides that‘…. If any law is inconsistent with this Constitution, this Constitution

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The proposed human rights jurisdiction has a lot of

implications for the Court. It is important to ensure that

the Judges of the Court are competent in human rights

matters to be able to effectively administer this

jurisdiction. This means that Judges of the Court, in

addition to the qualifications under article 24(1) of the

Treaty, must have necessary qualifications and experience in

human rights. Human rights law has since acquired some

speciality that needs specific focus and expertise. Not

every Judge can sit over and determine human rights matters

according to recognized principles and law.

There will also be a need to increase the number of judges

of the Court if the Protocol is ratified. The extended

jurisdiction, to be administered properly, will require not

less that another six Judges if the Court is not to become a

victim of backlog of cases in the very near future.

Given its proposed jurisdiction over international human

rights treaties and conventions, the Court will have to work

closely with the established enforcement bodies under these

instruments to avoid issuance of conflicting decisions and

opinions based on the same instrument. Such close

association and collaboration is also necessary to avoid

shall prevail and the other law shall, to the extent of the inconsistency, be void.’

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forum shopping by litigants. This is particularly necessary

with regard to the African Rights System, to which the

Community directly belongs.63

Conclusion

The Court is yet to entrench itself as a strong regional

judicial institution. This is because the people of the

Community are yet to start routinely using the Court for

settlement of disputes touching on Community law. As such

the Court has not stamped its authority through decisions,

rulings and advisory opinions, which under the Treaty are

final and binding within the Community.

The fact that the Court has not been fully utilized may be

attributed to the manner of its composition which was not

transparent and open to all qualified individuals within the

Community. The vacancies at the Court were never advertised

in the Partner States and the appointments were done in

secrecy by the Partner States without any oversight. The

Court has therefore been seen as an appendage of the

national courts which have been bedevilled with lack of

independence, corruption, undue delays in determination of

63 For an in depth analysis of the African Human Rights System and its development, see ICJ-Kenya, Volume IV ‘Judiciary Watch Report: African Human Rights System: Towards the Co-Existence of the African Commission on Human and Peoples’ Rights and African Court on Human And Peoples’ Rights’ (2006)

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matters and lack of transparency and accountability in their

operations. The Court is yet to show that it is a regional

independent court different from the status quo within the

Partner States and ready and able to deliver. Until then,

very few matters will find their ways into the Court in the

near future.

The Rules of the Court are too many and complex for the

ordinary man. This means that every litigant before the

Court will have to obtain legal representation to be able to

comply with the procedural requirements. There is need to

set up a Legal Aid Office within the Community to assist

indigent litigants who may wish to invoke the jurisdiction

of the Court to settle their grievances. Further, the Rules

also ought to be revised and made simpler and user friendly

in order that people may readily resort to the Court for

dispute settlement, even without the assistance of Counsel.

There is an urgent need to harmonized human rights laws

within the Community. The Court, through its decisions would

be able to provide standards of measure for all Partner

States as far as promotion and protection of human rights

and fundamental freedoms is concerned. The situation

currently where the level of respect and protection of human

rights and fundamental freedoms of the individual differs

between Partner States is not desirable as the same works

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against the spirit of regionalism. The ratification and

enforcement of the Protocol therefore needs to be fast-

tracked and the Court given the necessary capacity in terms

of personnel and expertise to discharge its mandate.

For smooth operation of the Community legal system, there is

need to harmonize Community law, especially those that

establish and govern the operations of the Court, with the

domestic laws of Partner States, especially the

Constitutions. The Constitutions of Partner States, which

are supreme within their domestic legal systems, have

remained intact despite the enforcement of the Treaty by the

Partner States. The Treaty has provisions which directly

conflict with the Constitutions of the Partner States.64

This jeopardizes the enforcement of Community law, including

Court decisions, within the Partner States.

64 Under sec. 3 of the Constitution of Kenya, the Constitution is the supreme law of the Republic of Kenya and any other law which is inconsistent with it is void to the extent of that inconsistency. Further, under section 64 of the Constitution, the Court of Appeal is the highest court of the Republic of Kenya. On the other hand, art. 8(1)of the Treaty provides that Community organs, institutions and laws shall take precedence over national ones on matters pertaining to implementation of the Treaty. The Treaty, outside the Constitutions of Partner States, establishes the Court whose decisions are to be applied and enforced in Partner States. Under art. 33(2) of the Treaty, decisions of the Court on the interpretation and application of the Treaty have precedence over decisions of national courts on similar matters.

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