By JACKSON MUTINDA

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The East African Court of Justice (EACJ) Deputy Registrar Christine Mutimura-Wekesa tells Jackson Mutinda why the court has not been seen to serve justice as its backlog piles.

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You have talked about the backlog of cases in the court and you seemed to imply that this is a result of increased awareness about the court among East Africans, and a vote of confidence in the court. But it also points to a challenge – the pace of the court’s delivery…

Well, definitely, when there is a backlog, then there is a question of the court’s ability to handle matters. And, even as we are happy to report an increased visibility, we are also working to deal with the challenge that comes with it – which means we have more people filing matters before the court.

You may ask how we are doing that. Number one, we have made a request to the Council of Ministers for an extraordinary session of the court – to have one additional session of the court in the year. So, we are moving from four sessions to five in the hope that will reduce the case backlog. We want the Council to formalise this: It had recommended this as a one-off, but a one-off is not going to resolve the backlog.

We are increasingly seeing partner states suing each other at the Court. How does that make you feel?

We look at it as a vote of confidence in the existing organs of the Community. It means they have confidence in this organ actually resolving disputes.

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Isn't it ironic that some partner states sit on certain decisions without implementing them, yet when it suits them, they rush to the court to seek its intervention?

Of course, that is challenging because, as a court, we were mandated to do the job that we do by the states. So, we're here to serve the states and they are our clients, in as far as coming to seek justice from the court.

If a partner state will not reinstate the rights of individuals in certain cases, but seek the court to reinstate their own, then definitely there’s irony there. But that is not unusual. We have seen it in the national jurisdictions; there are certain decisions of the court the state will be very quick to implement, especially those of an economic nature. But when it comes to rights, then there's a slowness in implementing or reinstating the rights of individuals. So, it is nothing new to the EACJ, we have seen it in all the other regional courts.

We have even seen it in SADC, where the court was disbanded because a particular state was not happy that there was a certain matter that was filed to reinstate the rights of a citizen from their country. So, this is nothing unusual. But we also think that there's something that can be done, especially looking at the non-existent implementation mechanism at the EAC level when it comes to decisions, whether they're decisions of the court, or of the Council or other organs of the Community.

The Treaty bestows obligations on partner states. For example, when it comes to the decisions of this Court, the Treaty is very clear: that a partner state or the Council shall take, without delay, the measures required to implement a judgment. That is a provision of the Treaty.

So now when a state fails to take those measures on time, who is holding the state accountable? What are the measures in place to ensure that this partner state actually complies? And now that brings in the question, can you actually sanction the state for not doing that?

We have a provision on sanctions, and it says that a partner state which defaults in meeting its financial and other obligations -- and obligations here we are talking about implementing a judgment of the Court – shall be subjected to such action as the Summit may, on the recommendation of the Council, determine.

So, we have sanctions, but we are not told how these shall be implemented. There’s the establishment of the infringement or failure to meet the obligations, but what are the steps?

Do we have a schedule in the EAC that is prescribing the issues that shall be subjected to a sanction, and how does that work? What's the trigger mechanism? And how do you move from Council recommendation? How does the Council arrive at that recommendation? We need a prescription for that, which is what is lacking at the Community.

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We are also seeing many cases of human rights coming to the EACJ, yet the court was established to resolve trade disputes. How are you handling these?

The court was not granted extended jurisdiction on human rights matters. And that decision was on the basis that there is actually an existing mechanism through the African Court on Human and People's Rights.

So, the decision of the Council – and I believe eventually the Summit – was that East Africans should utilise that continental mechanism that is in place. So that request for extended jurisdiction was not granted. But, instead, they concluded a protocol on extended jurisdiction on trade investment, and monetary matters.

So, if you look at the (EAC) Treaty, it has principles for good governance, rule of law, transparency, human and people's rights, promotion and protection of human and people's rights in accordance with the charter of the East African Community. These are principles of the Community, which are embedded in the Treaty, which all partner states are obligated to uphold.

Now, our mandate is to ensure adherence to the law in the interpretation, application and compliance of the Treaty. If there is an infringement of the principles of the Community, there is nothing stopping an individual from seeking the Court to ensure adherence to those principles.

It's a form of judicial activism that the Court has taken up. The Court is telling states to ensure the protection of human and people's rights in accordance with the charter.

So, because we don't have extended jurisdiction, should that stop the court from interpreting these provisions and seeing where states are not upholding these particular provisions?

But I also want to say that, despite the fact that we're not given external jurisdiction, and through judicial activism, the court has decided to handle human rights matters on the basis of Article 6(d) and 7 of the Treaty, which talk about the principles and the mandate of the Court.

The decisions we have rendered, for example the Katabazi case, where James Katabazi and others were charged with treason in Uganda and eventually released on bail. And then there was a siege of the High Court by military men, and Katabazi was moved to a court martial. Now they came to this court stating that there was an infringement of his rights in accordance with Article 6(d) of the Treaty, talking about the rights of individuals.

Now, when the court made this decision, we have not had, again, a siege of any court in Uganda by military men. To us, that is a sign that it's compliant.

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We have a number of cases; there is a media case in Burundi; we also have the case of Plaxeda Rugumba, who was held incommunicado in Rwanda and, after the initiation of the reference in this court, even before the matter could be concluded, he was produced before a court. It shows that there is no state that wants to look like they're not adhering to the provisions of the Treaty, so, we are seeing actions being taken.

But we're also seeing situations where there is no implementation of the decision of the courts, for obvious reasons: When there is no implementation mechanism, then a state will sit back.

What other challenges are you facing?

Number one, budget. Number two, timely disbursement of funds by partner states. Number three, increasing capacity in this court. We have only one legal researcher in the court supporting 12 judges. She cannot sufficiently support them. In addition to that, we need an increase in the number of days for the court. It could be the number of days or even permanency of our court, because there is no doubt that until issues of capacity are resolved, we're going to see an increase in the backlog.

So, states should decide whether they are giving the court permanency or increasing the number of days, because there's still an increase in the number of matters, given the fact that we are getting more visible.

Another challenge that will come along is automation. We have a very good case management and recording system, but it is outdated.

We need a system that will include translation equipment, because we have French-speaking judges now, and in the whole process of dispensing justice, they should operate in a language that they're comfortable with.

To what extent has the EACJ opened itself up for use by East Africans? And what does an ordinary East African need to know about access to this court?

We've tried to do it in several ways. Every year, we have events in the partner states and in those events, we always seek an opportunity to showcase what the Court is doing, or has done. One of the ways we showcase this is through an exhibition table, where you have all the information. We have our clerk and public relations officer there to guide participants. We get slots for speaking; the president or a judge will be part of a panel.

The other thing that we have tried to do is holding rotational sessions of our court in the partner states – taking the court closer to the people.

We have opened the court in such a way that citizens are not walking to the court to sit in through a session. And we have all the information revealed to individuals in that partner state during that period. But, before we go, we also do a lot of publicity in form of talk shows, adverts, just to let them know.

How can media help?

The purpose of media is, number one, the voice of the courts, and also the voice of the legal persons who seek the court. And that is why we as a court need to harness our collaboration with the media so that you're aware of the matters that are brought before the court, and if there’s laxity in implementation of the Court's decisions, then you raise the (red) flag. There is no state that likes to be seen in bad light, and that is where the media comes in.

Read: EACJ registrar calls for expanded court sittings

The ad hoc nature of the court must impact operations…

When you talk about the service of the judges, that is a challenge. Now we have an increasing backlog, and the judges are not permanent. What it means is that judges will only handle our matters when they're in Arusha. When they're out of Arusha, then they're attending to the national judicial matters in their states and will not get back to that file until return to Arusha. Our judges are overwhelmed, their load is heavy. That is a challenge for us.

Is there a tendency then, for lack of a better word, to ‘guillotine’ matters when they finally sit?

No, they try not to because there's only so much you can do as a judge. First, you need to understand the matter that you're handling, and we don't have legal assistants in this court. So, the judges do their own work: It is a very big challenge. And that is where the capacity of the court comes in and the issue of budget. Why does the EACJ have the lowest budget as an organ with the kind of work we do?

We have a backlog; the Council is not quick to grant not just sessions for that, but also increase the budget of the court to facilitate that. On top of that, our judges are overburdened. When they come, they have to sit on the file. They study them, attend court hearings, and then they have to develop and draft their judgments, and all on their own. It is overwhelming.

We have judges who come from civil law backgrounds, and this is a predominantly common law background. When they come, they have to be onboarded. And then there's also the need of this switch from your understanding of civil law, which does not make reference to precedents, to now handling a matter and having to do all the research, and including precedents. So, it is a challenge for them. By the time a judge settles into the system, there's so much that has not been done in terms of dispensing with matters.

On capacity issues, is it cast in stone that you have to have 10 judges? Is it time, perhaps, that the Treaty was amended to reflect the expanding Community and the capacity issues you’re grappling with?

Well, as the Treaty stands now in terms of the number of judges we can have, we are still within the safe space because it is up to 10, and at the moment we have six; we are waiting for Kenya’s nominee to replace Charles Nyachae. That will be seven.

But the issue we should raise is financial and administrative autonomy. We depend on the secretariat for administration matters, whether it is recruitment of staff or procurement, it has to go through the centralised system and that holds us back.

As well as financial autonomy, there is where we decide how to use the funds allocated to us. But for me, the most pressing need that the Court has now is an increase of its budget. We have to keep seeking it and since the pandemic, we've had a zero increase to our budget. Justice delayed is justice denied. Last year, we skipped three sessions; you can imagine the number of matters that have to be had to be pushed back.

So those are the challenges we face, on top of the late disbursement by partner states. At the moment, I think DRC has never made its contribution, and yet they've got a number of matters that they filed; we have a judge from the DRC.

You mentioned one of your highlights here as the case management system. Explain that.

Well, it's an electronic case management and recording system where litigants file matters before court, and the court clerks update the system. The judges are able to get the files as they are updated through their Outlook. beyond filing, we have the whole court process happens in real time: the recording system, the microphones are connected to the recording system and there is a machine transcribing in real time. That transcript is available to the judges. It actually aids the judges in their work, and also simplifies registries where clerks are able to file the matters in sub-registries and we receive them in Arusha. So, someone doesn't have to travel to Arusha to file the matter.

How far is the project of opening sub-registries across the region?

Well, we already have sub-registries in Tanzania, Kenya, Uganda, Burundi and Rwanda. We are in the process of opening in South Sudan and DRC. We've submitted requests to recruit clerks to the sub-registries.

The Pan-African Lawyers Union seems to be advocating the formation of another division, a commercial division, to deal with commercial disputes…

I'm trying to understand why we’d need another division. That is interesting, but you see we have not operationalised the protocol on extended jurisdiction of the Court on trade, investment and monetary matters. Burundi and Uganda are yet to ratify this protocol. Before that protocol is ratified, that is not a conversation we can have.