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The Role of the East African Court of Justice in the Advancement of Human Rights: Reflections on the Creation and Practice of the Court

Document Cited authorities 2 Cited in Related
Vincent
Date01 August 2019
Author
Published date01 August 2019
Pages359-377
DOI10.3366/ajicl.2019.0279
INTRODUCTION

A decade ago, the theme of this article would have looked rather premature. The East African Court of Justice (EACJ) did not seem to play any role regarding human rights, because Article 27(2) of the Treaty establishing the East African Community (EAC Treaty) postponed the Court's human rights jurisdiction until a future protocol is promulgated. However, the EACJ's practice has been far-reaching and evolved beyond the expectations of the drafters of Article 27(2). Despite the restricted jurisdiction in the Treaty, the EACJ progressively disposed human rights cases by creatively interpreting Articles 6(d) and 7(2) of the EAC Treaty. The Court's case law reveals the gradual bypass of the postponed human rights jurisdiction.1 Today, more than two dozen human rights-related cases explicitly rely on Articles 6(d) and 7(2) of the EAC Treaty. Arguably, the Court's interpretation of these articles contributed to the appropriation of human rights jurisdiction. Initially, the partner states vigorously contested the recourse to Articles 6(d) and 7(2) as the legal basis for decisions on human rights cases. However, the negative perceptions lessened in recent years as the Court's practice continued to develop.

The EAC's appropriation of human rights jurisdiction via case law has a theoretical implication on the evolution of ICs over time.2 Rationalist theories generally see strategic utility in creating ICs. However, the story in this article is backed more by historical institutionalist accounts that expect ICs to evolve responding to socio-political dynamics. Nevertheless, states are important in the story this article recounts: first, through the states' decision to invite the public to participate in the EAC treaty-making process in the second half of the 1990s; second, through states' openness to litigate human rights-related cases and willingness to comply with judgments of the Court.

This article analyses the creation of the EACJ, the drafting history of Articles 6(d) and 7(2), and the practice of the Court, before examining the legal basis and the limits of the Court's competence to decide human rights cases. It reports on data from field research in East Africa in 2013 and 2014, including over 50 interviews with government officials, human rights lawyers, law societies, judges, the staff of the Court Registrar and the Secretariat of the EAC. A review of the background documents on the treaty-making process for the establishment of the EAC, the EACJ case law, non-governmental organisation (NGO) press releases and news media reports provide additional context for the analysis.

 THE CREATION OF THE EAST AFRICAN COURT OF JUSTICE

The present EAC is a revival of a defunct EAC (1967 to 1977) that adopted colonial era regional institutions dating back to the beginning of the twentieth century. The Court of Appeal for East Africa (CAEA), a remnant of colonial institutions, later became an organ of the old EAC. Thus the CAEA was the first international court (IC) in East Africa.3 The EACJ, established after over two decades from the collapse of the first EAC, is the judicial organ of the EAC. The EACJ was inaugurated in 2001 and received its first case in 2005.4

Different factors contributed to the EACJ's design. During the treaty-making process, the EACJ's design and jurisdiction became contentious. The issue centred on whether to create a Court of Appeal with jurisdiction over human rights. While civil society groups and lawyers wanted a Court of Appeal with an extensive jurisdiction including human rights, the partner states disagreed. The drafting history of the EAC treaty shines light on the states' reluctance to entrust to the EACJ full authority to rule on human rights violations. During the treaty-making process, an overwhelming support existed, especially from the public, for assigning an extensive jurisdiction to the EACJ. The need to have a fully-fledged court not only with original but also appellate jurisdiction received considerable attention. For instance, during the treaty negotiations, Justice A. Ramadahani highlighted the benefits of making the EACJ an Appellate Court. Accordingly, the EACJ would be a Court of First Instance and Final Instance in matters when either the Community or any of the partner states is a party to a case, and an Appellate Court only in matters when individuals are parties to a case.5 Furthermore, a discussion on the draft EAC treaty summed up that the CAEA had a well-developed jurisprudence that served East Africa, hence, it was argued for its revival ‘as it was before’.6 The reasons for the longing of the revival of the CAEA were the result of the Court's authoritative decisions with the benefit of acceptance by national courts as well as by older generations of lawyers.7 The CAEA was not involved in any political encounters between the partner states and thus acted as a stabilising force in East Africa.8 The prestige and status of the CAEA was vivid in the minds of lawyers.

Similar to the partner states' position towards the jurisdiction of CAEA in the past, the states in the new EAC were reluctant to entrust matters they considered sensitive to the jurisdiction of the EACJ. At the government level, Tanzania wanted a court with a very limited jurisdiction. Besides, Tanzania proposed a court combining the functions of the institutions of the first EAC, i.e. the Common Market Tribunal and the East African Industrial Court.9 Hence, for Tanzania, an Appellate Court with jurisdiction over civil, criminal and constitutional matters was striking, but not tenable by the type of cooperation envisaged, i.e. a common market arrangement.10 The CAEA was created independent of economic cooperation as an intermediate Appellate Court in the colonial administration – the final Appeal Court was the Privy Council of the House of Lords. Hence, after independence, the partner states denied the CAEA jurisdiction to interpret their respective constitutions. Instead, the partner states created High Courts as the final Courts of Appeal competent to interpret their constitutions.11

Although the creation of an Appellate Court with extensive jurisdiction was unsuccessful, discussions on the possibility of extension of the jurisdiction of the EACJ continued. These discussions reveal that the EACJ's competence could be extended with the establishment of a political federation, but not in a common market arrangement.12 The treaty negotiations resulted in the limitation of the EACJ's jurisdiction and the postponement of human rights jurisdiction.13 The unsettled discussions on the court's jurisdiction imply the continuation of the political negotiations. Consequently, negotiations since 2004 to extend the jurisdiction of the court have resulted in the extension of jurisdiction on trade and monetary union leaving out human rights.14

Despite the postponement of human rights jurisdiction, the EAC Treaty incorporated provisions that refer to human rights, governance and the rule of law in Articles 6(d) and 7(2). Thus the question is, notwithstanding the formulation of Article 27(2), why did the drafters incorporate provisions on the rule of law, governance and human rights in the EAC Treaty? The answer rests on the examination of the origin of Articles 6(d) and 7(2) of the EAC Treaty.

 LAWYERS AND CIVIL SOCIETY PLAYERS IN THE FORMATION OF THE EAST AFRICAN COURT OF JUSTICE: THE ORIGIN OF ARTICLES 6(d) AND 7(2) OF THE EAC TREATY

Although the creation of the new EAC, with an IC as one of its organs, coincided with the enthusiasm for regionalism in different parts of the world in the 1990s,15 the decision to invite the public to participate in the treaty-making process for the establishment of the EAC is perhaps exceptional in Africa. This invitation mobilised the legal profession and civil society groups working on human rights. However, drafting the provisions for the court was a delicate task, because the issue related to the type of the court and the nature of its jurisdiction. In the negotiations, human rights NGOs and the East African Law Society (EALS) wanted the new EAC with a final appellate jurisdiction on all matters including human rights.16 Hence, legal professionals and civil society groups were in favour of an appellate court not only similar to the CAEA, but also a court with an extensive jurisdiction that included human rights.17 However, the negotiators considered that the national administrations of justice had taken different directions and the CAEA could not be resurrected.18 Since the partner states' constitutions established new court hierarchies, the drafters created the EACJ with limited jurisdiction of interpretation of the Treaty and ensuring adherence to the law in the application of the Treaty. Thus the governments saw the EACJ as an economic court.19

Despite the failure to convince the partner states to resurrect the CAEA with an extensive jurisdiction, human rights NGOs and law society groups succeeded in shaping the provisions on the fundamental and operational principles of the community. The EAC draft Treaty required respect for human rights and the rule of law as conditions for accession to the founding Treaty.20 Accordingly, the original draft Treaty required aspiring partner states to ‘adhere to universally acceptable principles of democracy, rule of law, observance of human rights and social justice’.21 However, the draft Treaty did not impose similar obligations on the original partner states. Thus civil society groups and lawyers, particularly the EALS pushed for the inclusion of a similar provision obliging the original partner states to respect the rule of law, good governance and human rights.22 Hence, distinction should not exist between the original and aspiring partner states in respecting human rights, rule of law and good governance. In a paper presented at an EALS conference, Professor E. F. Ssempebwe asked whether in the draft Treaty the...

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