Ugandan think tank sues Sezibera over EAC treaty

A Uganda based think tank has taken the East African Community’s Secretary General to court over the controversial manner in which the regional bloc’s Treaty was amended in 2006, taking away the powers of the East African Court of Justice and giving them to national courts.

Citing what it describes as violation of the principles of the EAC Treaty, the East African Centre for Trade Policy and Law (Eactpol) is contesting the action of EAC’s highest organ — the Summit — whose vote, five years ago controversially gave jurisdiction to courts of partner states to interpret the EAC Treaty and settle other legal disputes from protocols of the Arusha based bloc.

In an interview with The East- African, Eactpol’s lawyer Francis Gimara said the provisions as amended, had grave implications for the desirable pace of the EAC integration process. Indeed, the amendments to articles 27(i) and 30(iii) deny EACJ powers to settle disputes arising out of the bloc’s Customs Union and Common Market, and this is handed to national jurisdictions.

“These amendments were made in bad faith. Look at the dispute settlement mechanism in the Customs Union and Common Market Protocols. They give with one hand but still take away with another — they still leave national courts with powers to hear disputes arising out of these instruments.

“Two things will happen here. One, this will slow down integration: you cannot be talking integration and yet leave implementation of the region’s integration programmes to national jurisdictions. Two, it creates bias: Tanzania, for instance is reintroducing tariffs, and if anyone had a dispute about them, the affected people would have to go to a Tanzanian court. Can a monkey be judge in a case to destroy the forest?” Mr Gimara added.

The suit, filed on November 25 last year, comes five years after the offending amendments were passed by the then EAC Summit comprising of the presidents of Kenya, Uganda and Tanzania. Rwanda and Burundi have since acceded to the Treaty, to bring the number to five countries.

The Summit’s decision was triggered by an EACJ ruling that stayed the swearing-in of Kenya’s representatives to the East African Legislative Assembly (EALA). This was after an application to the Court contesting the election of EALA MPs filed by Kenyan politician Prof Anyang Nyong’o as secretary general of opposition party Orange Democratic Movement in 2006.

The court’s ruling stung Kenyan President Mwai Kibaki, and it was seen as dangerous precedent that would one day also come to haunt the other members of the Summit. Hence by amending the Treaty on December 14 2006 and August 20 2007, the Summit was moving to clip the wings of EACJ lest it harm their political interests. 

“But this must be challenged,” says Mr Gimara. “The deliberations of the Summit must be seen from the preamble of the Treaty which observes that the first EAC was politically driven, and that’s why it collapsed. The Summit must look beyond their political structures and interests, and instead pay attention to what people in the region want.”

Because of these amendments, the Court officials have found themselves in an awkward position, according to EACJ president Justice Harold Nsekela. 

While presenting a paper on the role of EACJ in EAC’s integration in November last year, Justice Nsekela made remarks that questioned the spirit of these amendments, saying that allowing national courts to interpret the Treaty and hear disputes arising out of the implementation of the EAC’s protocols would breed conflicting interpretations of the same document from one partner state to the other.

Indeed legal experts refer to the Court of Justice of the European Union as the only institution that is mandated to settle legal disputes between governments and EU institution, as well as interpret EU law to make sure that it is applied similarly in all member countries.

“It should be appreciated that the question of what the Treaty reserves for an institution of a partner state is a provision of the Treaty and a matter that ought to be determined harmoniously and with certainty. It left as amended, the provisions are likely to lead to conflicting interpretations of the Treaty by national courts of the partner states,” said Justice Nsekela

What is critical, however, is that what is emerging in Eactpol’s suit and the reading of EACJ’s officials of these amendments is not an isolated view.
At the annual good governance conference held late last year in Kampala, legal experts imputed that the bloc’s leaders often sign international treaties without really being persuaded by their contents.

Adams Oloo, senior lecturer of law at Nairobi University, said regional institutions and projects that have been agreed to should be binding on partner states, and signing such treaties should no longer be a public relations exercise.

Professor of law at university of Dar es Salaam John Kabudi also argues that “issues of integration are issues of international law and not of national constitutions and courts.”
However, he observes that among EAC partner states, only Tanzania and Burundi currently provide in their constitutions that international treaties are binding laws once the president has signed them.