Human Rights Protection by International Courts – What Role for the East African Court of Justice?

Pages108-129
Date01 February 2018
Published date01 February 2018
DOI10.3366/ajicl.2018.0222
INTRODUCTION

In recent years, the tribunals of the African regional economic communities (RECs) have begun trying more human rights cases. Taking the East African Court of Justice (EACJ) as a case study, the present article aims at establishing what functions those tribunals can fulfil as human rights courts. Originally conceived as an organ dealing with trade, investment and economic integration,1 the EACJ became one of key actors of human rights protection in the East African region. But what are its particular strengths? What is the added value of its jurisprudence as compared to other judicial organs? Which functions can it perform reasonably? These are the questions which the present article seeks to explore. The various functions that the EACJ could reasonably perform are discussed in the second part of the article whereas the first part sets out the basic features of the EACJ's human rights jurisdiction.

FEATURES OF THE EACJ'S HUMAN RIGHTS JURISDICTION Implied Jurisdiction

The Treaty establishing the East African Community (EAC Treaty) lacks an unequivocal provision providing for the EACJ's jurisdiction in human rights matters. Article 27(1) of the EAC Treaty generally confers upon the EACJ jurisdiction over ‘the interpretation and application of this Treaty’, which, however, does not contain a Bill of Rights. Further, although Article 27(2) of the EAC Treaty stipulates that the Court shall have ‘at a suitable subsequent date’, inter alia, also appellate and human rights jurisdiction to be operationalised by the Partner States in a separate protocol; such protocol has not yet been concluded.

The substantive provisions on which the EACJ's human rights jurisprudence is based are limited to a set of general principles enunciated in Article 6 and Article 7 EAC Treaty. Article 6 lists ‘fundamental principles that shall govern the achievement of the objectives of the Community by the Partner States’; those principles include, according to Article 6(d) of the EAC Treaty, ‘good governance including adherence to the principles of democracy, the rule of law, accountability, transparency, social justice, equal opportunities, gender equality, as well as the recognition, promotion and protection of human and people's rights in accordance with the provisions of the African Charter on Human and Peoples’ Rights’. According to Article 7(2) ‘the Partner States undertake to abide by the principles of good governance, including adherence to the principles of democracy, the rule of law, social justice and the maintenance of universally accepted standards of human rights’.2

In the human rights cases brought to the EACJ, the respondents repeatedly challenged its human rights jurisdiction, but the Court dismissed those objections every time. The landmark decision was made in the Katabazi case of 2007.3 The EACJ established its jurisdiction in human rights matters by reference to the above-mentioned provisions, also invoking cooperation in ‘judicial and legal affairs’ (Article 5(1), EAC Treaty) as an integration objective.4 With regard to the issue of the protocol to be concluded according to Article 27(2) the EACJ generally held that ‘it will not abdicate from exercising its jurisdiction of interpretation under Article 27(1) merely because the reference includes allegation of human rights violation’.5

Summarising its position on this point in the Mohochi case six years later, the EACJ's First Instance Division suggested that the exception of Article 27(2) of the EAC Treaty does not refer to any provisions of the EAC Treaty, as none of those might be designated as human rights provisions; the EACJ links the term ‘human rights […] jurisdiction’ as used in the aforementioned provision to jurisdiction over human rights treaties, underlining that the EAC Treaty does not belong to this category.6 Consequently, the court construes the term human rights jurisdiction quite narrowly, as a direct application of human rights treaties; the examination of alleged infringements of Article 6(d) and Article 7(2), even if those provisions allow for the application of human rights instruments by virtue of reference – the Court expressly quotes the African Charter on Human and Peoples’ Rights7 – is not regarded as exercising human rights jurisdiction. The rationale of a distinction between the direct application of human rights instruments, to which the EACJ is not entitled, and the application by virtue of reference, which does fall under the Court's jurisdiction, remains unclear; a lege artis teleological interpretation of the provisions on jurisdiction requires the Court to clarify this point. Further, the Court extensively argues that Article 6(d) and Article 7(2) enumerate judiciable legal principles rather than mere policy objectives.8

The very fact of failure to conclude a protocol extending the EACJ's jurisdiction to human rights matters was also subject to the Court's scrutiny. In the Sitenda Sebalu case decided in 2011, the applicant sought to file an appeal with the EACJ against judgments of Ugandan courts; the appeal was based on alleged violations of electoral law but it was rejected due to the lack of jurisdiction. The applicant complained that although Article 27(2) of the EAC Treaty provided for an addition of appellate and human rights jurisdiction, the jurisdiction had not yet been extended and the delay was not justified. The EACJ held that the undue delay in extending its jurisdiction through adoption of the necessary Protocol violates the principle of good governance enshrined in Articles 6(d), 7(2) and also 8(1)(c) of the EAC Treaty which imposes upon the Partner States an obligation to abstain from measures likely to jeopardise the achievement of the objectives or the implementation of the provisions of the Treaty.9 It pointed out that ‘the court is a primary avenue through which the people can secure not only proper interpretation and application of the Treaty but also effective and expeditious compliance therewith’10 and declared that ‘quick action should be taken by the East African Community in order to conclude the protocol to operationalise the extended jurisdiction of the East African Court of Justice under Article 27 of the Treaty.’ As said, this never happened.

In 2013, deciding upon a new submission of the same applicant, the EACJ handed down another judgment on the issue. It held that the failure to implement its previous judgment constitutes an infringement of various EAC Treaty provisions, inter alia those reaffirming the principles of the rule of law and good governance as well as contempt of the Court.11 The EAC Secretary General was ordered ‘to take action to expeditiously implement the [2011] judgment.’ At the time of writing, this judgment remained unimplemented.

Standard of Review – Separate Causes for Action

The jurisdictional approach outlined above is quite controversial and it is perhaps for this reason that the case law of the EACJ sometimes lacks precision when it comes to defining the causes of action. The court tends to make only general references to Articles 6(d) and 7(2) or to the ‘principles’ enunciated in those articles,12 thus suggesting that the applications are reviewed against those principles taken as a whole.

The EACJ's take on the causes of action also triggered some doubts among the commentators. Possy seems to argue that the First Instance Division is more progressive, as it would refer explicitly to the protection of human rights, while the Appellate Division would link the Court's jurisdiction to other principles enshrined in Articles 6(d) and 7(2), e.g. good governance or democracy, insisting that those principles are distinct and separate from the protection of human rights.13 This does not necessarily have to be the case. In the Rugumba decision,14 the Appellate Division reiterated its position adopted earlier in the in the ILMU case15 suggesting that the human rights violations may be a cause for reference to the EACJ so long as they correspond to a violation of the EAC principles enumerated in Articles 5, 6 and 7 of the Treaty. In such a case, a human rights violation amounts to a Treaty infringement, upon which the Court has jurisdiction; in this context, the Court pointed out that ‘it is not the violation of human rights under the Constitutions and other Laws of [the Partner State] or of the international Community, that is the cause of action in the Reference at hand.’16 It is the EAC Treaty itself.

Despite this clarification, the EACJ shows some reluctance to invoke the principle of human rights protection; it rather chooses to rely on other EAC principles, such as democracy, good governance or the rule of law. For example, in the Burundian Journalists Union case, the Court cites multiple sources to prove that freedom of press and freedom of expression are essential components of democracy.17 In Gasutwa et al., a case involving interference by the government in the internal affairs of political parties,18 the EACJ does not refer to any human rights standards, e.g. the freedom of association, but rather looks into the compatibility of the measures taken with the Burundian law, namely with a provision in the constitution dealing with ‘the system of political parties’.19 As the applicants made only a very general allegation of ‘infringement of Articles 6(d) and 7(2) of the Treaty’,20 it was for the EACJ to specify the standard of review. The Court pointed out that it was its task to examine whether ‘the decision complained of was taken in conformity with the laws of Burundi’,21 as it would otherwise run ‘afoul of the principles of rule of law and good governance enshrined in the Treaty’.22

Doctrines Used

Since the EAC Treaty lacks written human rights standards, the Court resorts to constitutional doctrines of sometimes extremely varied origins. For instance, with respect to the freedom of speech, it refers to the US doctrine of a marketplace of...

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