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EAST AFRICAN COMMUNITY
EAST AFRICA LAW SOCIETY CONTINUING LEGAL
EDUCATION SEMINAR
DAR ES SALAAM INTERNATIONAL CONFERENCE
CENTRE,
PPF TOWERS
JULY 19TH, 2006
Litigation in the East African Court of Justice
Protocol to Operationalise Extended Jurisdiction
of the East African Court of Justice:
Opportunities and Challenges
Presented by
Wilbert T K Kaahwa,
Counsel to the Community
EAC SECRETARIAT
Arusha, Tanzania
2
July 2006
1
1.0 INTRODUCTION
The paper and views which I am presenting should be read against two
fundamental factors in:
(a) the shortcomings of the Treaty for the Establishment of the East
African Community (especially with regard to the provisions on areas
of co-operation and the institutional framework);
(b) the expectations which the people of East Africa have in the integration
process, in general, and in the East African Court of Justice, in
particular.
The basis for the Draft Protocol is the provision of the Treaty for the
Establishment of the East African Community that
“The East African Court of Justice shall have such
other original, appellate, human rights and other
jurisdiction as will be determined by the Council at a
suitable subsequent date. To this end, the Partner
States shall conclude a protocol to operationalise the
extended jurisdiction”.1
Within the institutional framework for the Community, the Treaty established
a judicial organ – the East African Court of Justice. Initially the Court’s
jurisdiction, like that of the ECOWAS Community Court of Justice, has been
rationed to cater for only those matters closely related to the application of the
Treaty. The role of the East African Court of Justice is, therefore, to ensure the
adherence to law in the interpretation and application of the Treaty. The Court
is competent to accept and adjudicate upon all matters pursuant to the Treaty.
The Court may also be called upon to give advisory opinions regarding
questions of law arising from the provisions of the Treaty. The Court is
empowered to determine the legality of any act, regulation, directive, decision,
action or matter as shall have been referred to it by any Partner State, the
Secretary General of the Community or by any legal and national persons. It
can also, handle disputes between the Community and its employees.
However, it was envisaged that the Court shall have such other original
1 Article 27(2); unless otherwise qualified references with Articles are in respect of the Treaty for the
Establishment of the East African Community
2
appellate, human rights and other jurisdiction as will be determined by the
Council at a suitable subsequent date.2
The Court we now have differs from the judicial organ that existed within the
defunct East African Community – the Court of Appeal for East Africa. The
Court of Appeal for East Africa was the highest Court in Tanzania (mainland),
Uganda and Kenya.3 It had a President, a Vice-President and three Justices of
Appeal who form its establishment with the Chief Justices and Judges of the
High Courts of the three Partner States being ex officio members. They could
sit on the bench for the hearing of appeals. The Court held sittings
periodically at Nairobi, Dar es Salaam, Kampala and Mombasa. Before the
institution of People’s Courts in Zanzibar, the Court also heard appeals there.
The Court was part and parcel of the judicial machinery of each Partner State
and derived its jurisdiction from, the laws of each Partner State. It heard both
civil and criminal, appeals and applications.
The jurisdiction which the Court was exercising before the Partner States’
independence, of the Court of Appeal for Eastern Africa, was much wider in
area. It was exercising jurisdiction in respect of appeals from the courts of the
then British Somaliland, Seychelles, Aden, St Hellen, Kuria Muria Islands and
Perim. As soon as these territories became politically independent, this
jurisdiction ceased. After independence in the three Partner States, appeals to
the Judicial Committee of the Privy Council were abolished and the Court of
Appeal for East Africa was made a final Court of Appeal there being no
further appeal from its decisions...4
The limitation for the present Court’s jurisdiction is to be found in the Treaty’s
provision that
“The Court shall initially have jurisdiction over the
interpretation and application of the Treaty”.5
The main reasons for the initial limitation of jurisdiction as advanced by the
Partner States during the negotiations of the Treaty were:
2 Elaborate provisions on the creation, jurisdiction and conduct ofwork of the Court are contained in Chapter
Eight.
3 Treaty for East African Co-operation, Article 80
4 Treaty for East African Co-operation Article 81
5 Article 27(1)
3
(a) the Partner States’ differences in jurisprudential development
following the collapse of the earlier integration process; the reversal
of which state necessitated considerable harmonization of their
municipal laws in a regional context;
(b) the three Partner States’ different court hierarchical systems; and
(c) the relatively low level of integration in the initial days of the
Community; a time when policy harmonization and rationalization
was yet to reach a stage where judicial interaction with a common
framework would be realistic.
2.0 BASIS FOR THE DRAFT PROTOCOL TO OPERATIONALISE
EXTENDED JURISDICTION OF THE EAST AFRICAN COURT
OF JUSTICE
Following the implementation of various provisions of the Treaty for the last
five years, the establishment of the East African Community Customs Union,
the fast tracking of the Political Federation, the need to operationalise extended
jurisdiction of the East African Court of Justice has arisen.
Accordingly, the EAC Sectoral Council on Legal and Judicial Affairs has
addressed the need to provide for the handling of disputes that may rise from
the implementation of the East African Community Customs-related
legislation.6 The Sectoral Council is, therefore, of the view that there is need to
expedite the preparation of this protocol in order to enable the Council take a
policy decision to extend the jurisdiction of the Court of Justice to cover
disputes trade-related. The Sectoral Council, therefore, directed the Secretariat,
acting in consultation with the East African Court of Justice to expedite the
preparation of a protocol extending the jurisdiction of this Court.
3.0 CONTENTS OF THE DRAFT PROTOCOL
In substance, the draft Protocol takes the Community a step beyond the regime
under which the Court of Appeal for East Africa operated. The Court of Appeal
6 East African Community Customs Management Act, 2004; East African Community Standardisation,
Quality Assurance, Metrology and Testing Act, 2006; and other legislation on competition, customs
management and administration, that will be enacted.
4
for East Africa played only an appellate role and which was often the subject of
challenge7. Disputes arising out of the erstwhile Common Market were handled
by a separate tribunal - the Common Market Tribunal.8 The Court proposed by
the draft protocol is a supra-national body of last resort. In consonance with
the provisions of the Treaty, the draft provides for:
(a) Original Jurisdiction in all matters of the Community e.g.
interpretation and application of the Treaty, questions of international
law, acts of the Community;9
(b) Human Rights Jurisdiction – taking into account the national positions
and the universal legal framework;10
(c) Appellate Jurisdiction – taking into account the national court
hierarchies and structures and the need for a regional judicial body to
adjudicate on matters of trade liberalization and development
following the operationalisation of the Customs Unions and the
proposed free movement of persons, labour and services (within the
context of the Common Market);11
(d) Other Jurisdiction including Alternative Dispute Resolution which
should increasingly be leveraged in the development of the integration
process.12
It also provides for administrative and procedural matters.13
4.0 OPPORTUNITIES AND CHALLENGES
The extension of the jurisdiction of the East African Court of Justice should
herald a positive step in the development and strengthening of the integration
process. In the first instance it is a development that fits the bill of the
integration process as it matches towards deeper integration. The Wako
Committee on the Fast Tracking of the Political Federation observed that the
7 See for example Okunda v Republic [1970] EA 512
8 Treaty for East African Cooperation, Articles 32, 41
9 Part B; Articles 2 - 8
10Part C; Articles 9 - 19
11 Part D ; Articles 20 – 25 ;
12 Part E; Articles 26 – 27;
13 Part F; Articles 28 – 37.
5
people of East Africa are united in their quest for a federation; the East African
Community should not be limited to a mere experiment in economic integration
based on tariff reduction and a free trade zone; the people desire to share
sovereignty in order to achieve meaningful integration. The Wako Committee
received expressions of overwhelming support for the strengthening of the East
African Court of Justice both functionally and institutionally. The Committee
emphasized the need to extend the Court’s jurisdiction during the transition
period when the Customs Union will be operative and when the Partner States
will achieve higher levels of economic integration.14
Secondly, the extension of jurisdiction creates a conducive atmosphere for
enhancing the Partner States’ co-operation in legal and judicial matters. This
co-operation is founded upon:
“(a) establishment of common syllabus for the training of lawyers and
a common standard to be attained in examinations in order
to qualify and to be licensed to practice as an advocate in their
respective superior courts;
(b) harmonization of all (“Partner States”) national laws
appertaining to the Community; and
(c) revival the publication of the East African Law Reports or
(publications) of similar law reports and such law journals as will
promote the exchange of legal and judicial knowledge and
enhance the approximation and harmonization of legal learning
and the standardization of judgments of courts within the
Community.”15
The extension of jurisdiction will also serve the development of a common
jurisprudence. A common jurisprudence with harmonised laws and legal
practise, as was earlier experienced in this region and as is experienced with
such other regional integration processes as EU and NAFTA serves to
14 See Report of the Committee Appointed to Examine How to Fast Track the East African Political
Federation, paragraphs 4.1, 6.3.5
15 Article 126
6
facilitate faster integration. Our region lacks a homogenous set of applicable
laws. By way for comparison one notices that the systematic development of
the European Community law comprising rights, duties, powers and
enforceable remedies has not only assisted the integration process, but has also
provided for effective supervision over the executive organs of the European
Community and for addressing problems that would otherwise be created by
the possible subjection of Community regulations to national constitutional
standards.16
In the European Community, Community law and the municipal legal systems
operate in overlapping spheres whereby the former is superior to the extent it
restricts the sovereignty of the Member States. It is on this basis that the
European Court has held that nationals of the Member States could derive their
fundamental rights from Community law. It stated that:
“the Community constitutes a new legal order of international law, for
the benefit of which the states have limited their sovereign rights, albeit
within limited fields and the subjects of which comprise not only
Member States but also their nationals”17
The position in East Africa afflicted by yet to be resolved disparities in the
legal systems. The legal systems of the three Partner States, through sharing a
common source in received English law, are different. Harmonisation of the
law has so far been hampered by the sheer magnitude of the exercise
intricacies of conflict of laws, the differences in legal systems, and (before the
formal establishment of the East African Legislative Assembly) lack of
legislative basis. Therefore, the intricate issues of conflict between
International and Municipal Law as highlighted in such cases as the
Reparation for Injuries Case,18 the Barcelona Traction, Light and Power Co
Case19 and Okunda v. East African Community.20
16 Through the Treaties establishing the European Coal and Steel Community, the European and the
European Economic Community.
See Collins, L: European Community law in the United Kingdom
London, Butterworths, 1990 Chapter 1;
Harding, C and Sherlock, A: European Community Law Text and Materials
1995, Longmans, Chapers 1 – 4.9
17 Case 26 / 62Van Gend er Los v
Nederlanse Administratie der Belastingen (1963) CMLR 105 at p.129
18 1949 Rep 174
19 1970 ICJ Rep 3
20 op cit footnote 7
7
Fourthly, the development of the protocol for extended jurisdiction offers the
Community to strengthen the base for the Community’s foundation in:
“good governance including adherence to the principles of democracy,
the rule of law, accountability, transparency, social justice, equal
opportunities, gender equality as well as recognition, promotion and
protection of human and peoples rights in accordance with the
provisions of the African Chapter on Human and Peoples’ Rights”.21
It is a development that should project the future of the Court as being beyond
the interpretation of the Treaty and ensuring the Partner States’ adherence to its
provisions. The Court may develop along the lines of the European Court of
Human Rights, a Council of Europe institution and the European Court of
Justice, European Union’s Supreme Court on European law.
The primary challenge is to promote and popularize the notion of extended
jurisdiction among the political leadership and the legal fraternity. In this
regard there is need for seminars such as this to examine all relevant aspects of
the draft protocol. This ongoing Consultative Process is expected to consider
the Draft Protocol and make appropriate inputs to enable the further processing
of this document. In a wide context the Process is expected to address such
related issues as:
(a) the Partner States’ different constitutional provisions for the Judiciary
and judicial aspects (including administration of justice, courts of
judicature)22;
(b) amendment of the Treaty as appropriate to reflect the expanded scope
of the Community’s judicial arm;
(c) the process of harmonisation of laws, training of legal and judicial
practitioners, and standardization of judgments and law reporting; and
(d) different stakeholders’ expectations.
21 Article 6
22 Chapter Eight, Constitution of the Republic of Uganda, 1995;
Chapter IV, Constitution of the Republic of Kenya, 1963;
Chapter V, Constitution of the United Republic of Tanzania.
8
Secondly, there is need for the Community to consider the current handicaps
that may be facing the East African Court of Justice in its current form. In this
regard it behoves us to address the role, composition and litigation process of
the Court.
Thirdly, on the question of promotion and observance of human rights, in
respect of which jurisdiction is proposed, it is important to note that while the
Partner States have signed and ratified a number of International Human Rights
instruments, they are yet to domesticate them. The Partner States’
constitutionally enshrined bills on peoples’ rights are also not harmonised. The
matter is therefore such that the protocol may be regarded to be a judicial
conduit to address a fundamental issue for the Partner States’ incorporation in
the Supreme Laws.
Furthermore, the protocol seems to combine extended jurisdiction on human
rights and appellate matters. Perhaps, given the intricacies of these two matters,
development within the European Union could be guiding. The European Union
has the European Court of Justice, to deal with disputes arising from the
implementation of the Treaty of the European Union, on one hand, and the
European Court of Human Rights, to handle human rights issues.
Lastly, the draft Protocol needs to be reviewed in terms of drafting
requirements. This would be with a view to succinctly providing for the desired
jurisdiction and avoid inconsistencies. Issues to address in this regard include
the following:
(i) the possible amendment of the Treaty in order to harmonise it with
national constitutions and ensure practical implementation of the
protocol;
(ii) whether or not the Treaty has not provided for original jurisdiction
arbitration and altenate dispute resolution;
(iii) the coverage of constitutional and human rights matters;
(iv) the principle of exhaustion of local remedies; is it for example in
harmony with the concept of original jurisdiction?;
(v) the possibility of providing for appeals in criminal matters; and
9
(vi) avoidance of repeating what the Treaty has already provided by way
of jurisdiction for the East African Court of Justice e.g. on procedural
matters.23
CONCLUSION
The extension of the jurisdiction of the East African Court of Justice challenges
the Community and the Partner States to enhance the integration process. The
extension of jurisdiction will enhance confidence building among the peoples of
East Africa and may re-orient their perceptions on the promotion and protection
of peoples’ and human rights. It should offer necessary support to trade
liberalization during the implementation of the East African Customs Union
and as the negotiations on the Common Market and consultations on the
Political Federation get underway.
The conclusion of the protocol depends on how deep and involving the broad
consultative process is handled.
23 With reference for example to the draft Protocol’s Articles 16, 25, 27, 31 – 34.
EAST AFRICAN COMMUNITY
EAST AFRICA LAW SOCIETY CONTINUING LEGAL
EDUCATION SEMINAR
DAR ES SALAAM INTERNATIONAL CONFERENCE
CENTRE,
PPF TOWERS
JULY 19TH, 2006
Litigation in the East African Court of Justice
Protocol to Operationalise Extended Jurisdiction
of the East African Court of Justice:
Opportunities and Challenges
Presented by
Wilbert T K Kaahwa,
Counsel to the Community
EAC SECRETARIAT
Arusha, Tanzania
2
July 2006
1
1.0 INTRODUCTION
The paper and views which I am presenting should be read against two
fundamental factors in:
(a) the shortcomings of the Treaty for the Establishment of the East
African Community (especially with regard to the provisions on areas
of co-operation and the institutional framework);
(b) the expectations which the people of East Africa have in the integration
process, in general, and in the East African Court of Justice, in
particular.
The basis for the Draft Protocol is the provision of the Treaty for the
Establishment of the East African Community that
“The East African Court of Justice shall have such
other original, appellate, human rights and other
jurisdiction as will be determined by the Council at a
suitable subsequent date. To this end, the Partner
States shall conclude a protocol to operationalise the
extended jurisdiction”.1
Within the institutional framework for the Community, the Treaty established
a judicial organ – the East African Court of Justice. Initially the Court’s
jurisdiction, like that of the ECOWAS Community Court of Justice, has been
rationed to cater for only those matters closely related to the application of the
Treaty. The role of the East African Court of Justice is, therefore, to ensure the
adherence to law in the interpretation and application of the Treaty. The Court
is competent to accept and adjudicate upon all matters pursuant to the Treaty.
The Court may also be called upon to give advisory opinions regarding
questions of law arising from the provisions of the Treaty. The Court is
empowered to determine the legality of any act, regulation, directive, decision,
action or matter as shall have been referred to it by any Partner State, the
Secretary General of the Community or by any legal and national persons. It
can also, handle disputes between the Community and its employees.
However, it was envisaged that the Court shall have such other original
1 Article 27(2); unless otherwise qualified references with Articles are in respect of the Treaty for the
Establishment of the East African Community
2
appellate, human rights and other jurisdiction as will be determined by the
Council at a suitable subsequent date.2
The Court we now have differs from the judicial organ that existed within the
defunct East African Community – the Court of Appeal for East Africa. The
Court of Appeal for East Africa was the highest Court in Tanzania (mainland),
Uganda and Kenya.3 It had a President, a Vice-President and three Justices of
Appeal who form its establishment with the Chief Justices and Judges of the
High Courts of the three Partner States being ex officio members. They could
sit on the bench for the hearing of appeals. The Court held sittings
periodically at Nairobi, Dar es Salaam, Kampala and Mombasa. Before the
institution of People’s Courts in Zanzibar, the Court also heard appeals there.
The Court was part and parcel of the judicial machinery of each Partner State
and derived its jurisdiction from, the laws of each Partner State. It heard both
civil and criminal, appeals and applications.
The jurisdiction which the Court was exercising before the Partner States’
independence, of the Court of Appeal for Eastern Africa, was much wider in
area. It was exercising jurisdiction in respect of appeals from the courts of the
then British Somaliland, Seychelles, Aden, St Hellen, Kuria Muria Islands and
Perim. As soon as these territories became politically independent, this
jurisdiction ceased. After independence in the three Partner States, appeals to
the Judicial Committee of the Privy Council were abolished and the Court of
Appeal for East Africa was made a final Court of Appeal there being no
further appeal from its decisions...4
The limitation for the present Court’s jurisdiction is to be found in the Treaty’s
provision that
“The Court shall initially have jurisdiction over the
interpretation and application of the Treaty”.5
The main reasons for the initial limitation of jurisdiction as advanced by the
Partner States during the negotiations of the Treaty were:
2 Elaborate provisions on the creation, jurisdiction and conduct ofwork of the Court are contained in Chapter
Eight.
3 Treaty for East African Co-operation, Article 80
4 Treaty for East African Co-operation Article 81
5 Article 27(1)
3
(a) the Partner States’ differences in jurisprudential development
following the collapse of the earlier integration process; the reversal
of which state necessitated considerable harmonization of their
municipal laws in a regional context;
(b) the three Partner States’ different court hierarchical systems; and
(c) the relatively low level of integration in the initial days of the
Community; a time when policy harmonization and rationalization
was yet to reach a stage where judicial interaction with a common
framework would be realistic.
2.0 BASIS FOR THE DRAFT PROTOCOL TO OPERATIONALISE
EXTENDED JURISDICTION OF THE EAST AFRICAN COURT
OF JUSTICE
Following the implementation of various provisions of the Treaty for the last
five years, the establishment of the East African Community Customs Union,
the fast tracking of the Political Federation, the need to operationalise extended
jurisdiction of the East African Court of Justice has arisen.
Accordingly, the EAC Sectoral Council on Legal and Judicial Affairs has
addressed the need to provide for the handling of disputes that may rise from
the implementation of the East African Community Customs-related
legislation.6 The Sectoral Council is, therefore, of the view that there is need to
expedite the preparation of this protocol in order to enable the Council take a
policy decision to extend the jurisdiction of the Court of Justice to cover
disputes trade-related. The Sectoral Council, therefore, directed the Secretariat,
acting in consultation with the East African Court of Justice to expedite the
preparation of a protocol extending the jurisdiction of this Court.
3.0 CONTENTS OF THE DRAFT PROTOCOL
In substance, the draft Protocol takes the Community a step beyond the regime
under which the Court of Appeal for East Africa operated. The Court of Appeal
6 East African Community Customs Management Act, 2004; East African Community Standardisation,
Quality Assurance, Metrology and Testing Act, 2006; and other legislation on competition, customs
management and administration, that will be enacted.
4
for East Africa played only an appellate role and which was often the subject of
challenge7. Disputes arising out of the erstwhile Common Market were handled
by a separate tribunal - the Common Market Tribunal.8 The Court proposed by
the draft protocol is a supra-national body of last resort. In consonance with
the provisions of the Treaty, the draft provides for:
(a) Original Jurisdiction in all matters of the Community e.g.
interpretation and application of the Treaty, questions of international
law, acts of the Community;9
(b) Human Rights Jurisdiction – taking into account the national positions
and the universal legal framework;10
(c) Appellate Jurisdiction – taking into account the national court
hierarchies and structures and the need for a regional judicial body to
adjudicate on matters of trade liberalization and development
following the operationalisation of the Customs Unions and the
proposed free movement of persons, labour and services (within the
context of the Common Market);11
(d) Other Jurisdiction including Alternative Dispute Resolution which
should increasingly be leveraged in the development of the integration
process.12
It also provides for administrative and procedural matters.13
4.0 OPPORTUNITIES AND CHALLENGES
The extension of the jurisdiction of the East African Court of Justice should
herald a positive step in the development and strengthening of the integration
process. In the first instance it is a development that fits the bill of the
integration process as it matches towards deeper integration. The Wako
Committee on the Fast Tracking of the Political Federation observed that the
7 See for example Okunda v Republic [1970] EA 512
8 Treaty for East African Cooperation, Articles 32, 41
9 Part B; Articles 2 - 8
10Part C; Articles 9 - 19
11 Part D ; Articles 20 – 25 ;
12 Part E; Articles 26 – 27;
13 Part F; Articles 28 – 37.
5
people of East Africa are united in their quest for a federation; the East African
Community should not be limited to a mere experiment in economic integration
based on tariff reduction and a free trade zone; the people desire to share
sovereignty in order to achieve meaningful integration. The Wako Committee
received expressions of overwhelming support for the strengthening of the East
African Court of Justice both functionally and institutionally. The Committee
emphasized the need to extend the Court’s jurisdiction during the transition
period when the Customs Union will be operative and when the Partner States
will achieve higher levels of economic integration.14
Secondly, the extension of jurisdiction creates a conducive atmosphere for
enhancing the Partner States’ co-operation in legal and judicial matters. This
co-operation is founded upon:
“(a) establishment of common syllabus for the training of lawyers and
a common standard to be attained in examinations in order
to qualify and to be licensed to practice as an advocate in their
respective superior courts;
(b) harmonization of all (“Partner States”) national laws
appertaining to the Community; and
(c) revival the publication of the East African Law Reports or
(publications) of similar law reports and such law journals as will
promote the exchange of legal and judicial knowledge and
enhance the approximation and harmonization of legal learning
and the standardization of judgments of courts within the
Community.”15
The extension of jurisdiction will also serve the development of a common
jurisprudence. A common jurisprudence with harmonised laws and legal
practise, as was earlier experienced in this region and as is experienced with
such other regional integration processes as EU and NAFTA serves to
14 See Report of the Committee Appointed to Examine How to Fast Track the East African Political
Federation, paragraphs 4.1, 6.3.5
15 Article 126
6
facilitate faster integration. Our region lacks a homogenous set of applicable
laws. By way for comparison one notices that the systematic development of
the European Community law comprising rights, duties, powers and
enforceable remedies has not only assisted the integration process, but has also
provided for effective supervision over the executive organs of the European
Community and for addressing problems that would otherwise be created by
the possible subjection of Community regulations to national constitutional
standards.16
In the European Community, Community law and the municipal legal systems
operate in overlapping spheres whereby the former is superior to the extent it
restricts the sovereignty of the Member States. It is on this basis that the
European Court has held that nationals of the Member States could derive their
fundamental rights from Community law. It stated that:
“the Community constitutes a new legal order of international law, for
the benefit of which the states have limited their sovereign rights, albeit
within limited fields and the subjects of which comprise not only
Member States but also their nationals”17
The position in East Africa afflicted by yet to be resolved disparities in the
legal systems. The legal systems of the three Partner States, through sharing a
common source in received English law, are different. Harmonisation of the
law has so far been hampered by the sheer magnitude of the exercise
intricacies of conflict of laws, the differences in legal systems, and (before the
formal establishment of the East African Legislative Assembly) lack of
legislative basis. Therefore, the intricate issues of conflict between
International and Municipal Law as highlighted in such cases as the
Reparation for Injuries Case,18 the Barcelona Traction, Light and Power Co
Case19 and Okunda v. East African Community.20
16 Through the Treaties establishing the European Coal and Steel Community, the European and the
European Economic Community.
See Collins, L: European Community law in the United Kingdom
London, Butterworths, 1990 Chapter 1;
Harding, C and Sherlock, A: European Community Law Text and Materials
1995, Longmans, Chapers 1 – 4.9
17 Case 26 / 62Van Gend er Los v
Nederlanse Administratie der Belastingen (1963) CMLR 105 at p.129
18 1949 Rep 174
19 1970 ICJ Rep 3
20 op cit footnote 7
7
Fourthly, the development of the protocol for extended jurisdiction offers the
Community to strengthen the base for the Community’s foundation in:
“good governance including adherence to the principles of democracy,
the rule of law, accountability, transparency, social justice, equal
opportunities, gender equality as well as recognition, promotion and
protection of human and peoples rights in accordance with the
provisions of the African Chapter on Human and Peoples’ Rights”.21
It is a development that should project the future of the Court as being beyond
the interpretation of the Treaty and ensuring the Partner States’ adherence to its
provisions. The Court may develop along the lines of the European Court of
Human Rights, a Council of Europe institution and the European Court of
Justice, European Union’s Supreme Court on European law.
The primary challenge is to promote and popularize the notion of extended
jurisdiction among the political leadership and the legal fraternity. In this
regard there is need for seminars such as this to examine all relevant aspects of
the draft protocol. This ongoing Consultative Process is expected to consider
the Draft Protocol and make appropriate inputs to enable the further processing
of this document. In a wide context the Process is expected to address such
related issues as:
(a) the Partner States’ different constitutional provisions for the Judiciary
and judicial aspects (including administration of justice, courts of
judicature)22;
(b) amendment of the Treaty as appropriate to reflect the expanded scope
of the Community’s judicial arm;
(c) the process of harmonisation of laws, training of legal and judicial
practitioners, and standardization of judgments and law reporting; and
(d) different stakeholders’ expectations.
21 Article 6
22 Chapter Eight, Constitution of the Republic of Uganda, 1995;
Chapter IV, Constitution of the Republic of Kenya, 1963;
Chapter V, Constitution of the United Republic of Tanzania.
8
Secondly, there is need for the Community to consider the current handicaps
that may be facing the East African Court of Justice in its current form. In this
regard it behoves us to address the role, composition and litigation process of
the Court.
Thirdly, on the question of promotion and observance of human rights, in
respect of which jurisdiction is proposed, it is important to note that while the
Partner States have signed and ratified a number of International Human Rights
instruments, they are yet to domesticate them. The Partner States’
constitutionally enshrined bills on peoples’ rights are also not harmonised. The
matter is therefore such that the protocol may be regarded to be a judicial
conduit to address a fundamental issue for the Partner States’ incorporation in
the Supreme Laws.
Furthermore, the protocol seems to combine extended jurisdiction on human
rights and appellate matters. Perhaps, given the intricacies of these two matters,
development within the European Union could be guiding. The European Union
has the European Court of Justice, to deal with disputes arising from the
implementation of the Treaty of the European Union, on one hand, and the
European Court of Human Rights, to handle human rights issues.
Lastly, the draft Protocol needs to be reviewed in terms of drafting
requirements. This would be with a view to succinctly providing for the desired
jurisdiction and avoid inconsistencies. Issues to address in this regard include
the following:
(i) the possible amendment of the Treaty in order to harmonise it with
national constitutions and ensure practical implementation of the
protocol;
(ii) whether or not the Treaty has not provided for original jurisdiction
arbitration and altenate dispute resolution;
(iii) the coverage of constitutional and human rights matters;
(iv) the principle of exhaustion of local remedies; is it for example in
harmony with the concept of original jurisdiction?;
(v) the possibility of providing for appeals in criminal matters; and
9
(vi) avoidance of repeating what the Treaty has already provided by way
of jurisdiction for the East African Court of Justice e.g. on procedural
matters.23
CONCLUSION
The extension of the jurisdiction of the East African Court of Justice challenges
the Community and the Partner States to enhance the integration process. The
extension of jurisdiction will enhance confidence building among the peoples of
East Africa and may re-orient their perceptions on the promotion and protection
of peoples’ and human rights. It should offer necessary support to trade
liberalization during the implementation of the East African Customs Union
and as the negotiations on the Common Market and consultations on the
Political Federation get underway.
The conclusion of the protocol depends on how deep and involving the broad
consultative process is handled.
23 With reference for example to the draft Protocol’s Articles 16, 25, 27, 31 – 34.
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