Human Rights Protection by International Courts – What Role for the East African Court of Justice?
Pages | 108-129 |
Date | 01 February 2018 |
Published date | 01 February 2018 |
DOI | 10.3366/ajicl.2018.0222 |
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,
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’,
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’.
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.
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.
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.
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,
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,
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.
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.
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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