Sources of EAC Law and their Interplay with National Law

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CHAPTER TWO UNDERSTANDING THE EAST AFRICAN COMMUNITY’S INSTITUTIONAL FRAMEWORK

Introduction

A key part of evaluating the impact of the EAC’s human rights measures on the Partner States’ national frameworks is understanding why the EAC has repurposed itself from an institution designed to primarily address matters of economic integration, into one that has taken on human rights as part of its areas of competence. It is also imperative, as part of this endeavour, to understand its institutional architecture that is responsible for delivering its integration objectives. In this regard, the first part of this chapter delves into scholarly attempts at understanding the reasons behind the inclusion of human rights into the mandate and functioning of African RECs in general. The second part will then provide a descriptive layout ofthe structure and functioning of the EAC’s organs.¹ hisT provides a foundation for the discussions on the national impact of the Community’s binding and soft law measures for the promotion and protection of human rights in the chapters that follow.

RECs and Human Rights in Africa

Integrating Human Rights in African RECs

Most of the early post-­‐independent African RECs were fashioned primarily as vehicles for the achievement of economic development. There were no express inclusions or allusions to principles of human rights, governance, democracy or rule of law in their constitutive instruments.²For instance, no references to human rights were found in the constitutive treaties of early African RECs such as the Economic Community of Central African States (ECCAS)³ or the Economic Community of West African States (ECOWAS).⁴ An examination of the 1969 Treaty for East African Cooperation also reveals that it was no exception. The aims of the Community as stipulated under article 2 of the repealed treaty were limited to strengthening the industrial, commercial and other relations for the achievement of accelerated economic development. Thus, whereas these newly created post-­‐colonial RECs demonstrated an acute awareness that pooling their resources and abilities would be a useful tool in their fight against underdevelopment, they did not find it useful to employ human rights language in their founding treaties and legal instruments. However, this is not to say that African states completely ignored human rights in their national and regional governance processes. On the contrary, it is during this early post-­‐independence period that the African states negotiated and adopted the Charter of the Organisation of African Unity (OAU) with commitments to adhere to the Universal Declaration on Human Rights (UDHR) and the principles and purposes of the United Nations Charter, which include the respect for, and the protection of human rights.⁵ Indeed, key integration processes such as the reduction of trade barriers as well as enhancing movement of goods, services and people across national frontiers were significant drivers of the realisation of economic and social rights. Furthermore, given that these early RECs were formed and operated under the overarching provisions of the OAU and the UN Charter, it is submitted that they could not altogether ignore the human rights references contained therein. It is arguable therefore, that any cooperation entered into by the converging states in these post-­‐colonial RECs had a human rights colour, derived from these wider regional and international instruments that African states had subscribed to, notwithstanding that these were not expressed in the letter of the treaties that were negotiated at the time.
With the increased emphasis on democratic governance and the strengthening of the human rights discourse both globally and regionally, both old and emergent RECs in Africa have refined their focus to pursue development through the prism of human rights.⁶ In this respect, they have either included in, or revised their founding instruments to include the recognition, promotion and protection of human rights as an objective or fundamental norm for achieving their goals, with references to the African Charter on Human and Peoples’ Rights (ACHPR) as the normative standard.⁷ Notable examples in this regard are the revised ECOWAS Treaty,⁸ the Treaty of the Southern African Development Community (SADC Treaty),⁹ the Treaty for the Common Market for Eastern and Southern Africa (COMESA Treaty),¹⁰ as well as the EAC Treaty.
Various perspectives have been put forward in an attempt to explain the integration of human rights into the mandate of RECs in Africa. Ruppel for instance, notes that RECs embraced the promotion and protection of human rights in response to obligations arising under the Treaty for the Establishment of the African Economic Community (AEC Treaty), in which contracting parties declare their adherence to among others, the ‘recognition, promotion and protection of human and peoples’ rights in accordance with the provisions of the African Charter on Human and Peoples’ Rights’.¹¹ In testing Ruppel’s assertion, an examination of the constitutive treaties of the EAC, ECOWAS, COMESA, IGAD as well as SADC reveals that they have incorporated, almost verbatim, the language used in article 3(g) of the AEC Treaty as one of their fundamental principles. Furthermore, the converging states have in these treaties also made express references to the AEC Treaty as being one of the key instruments that have informed their integration processes.¹²Thus, the inclusion of provisions of the AEC Treaty in REC constitutive instruments validates Ruppel’s proposition.
Another perspective put forward by Kaime holds that human rights obligations that states have undertaken under international human rights treaties and the ACHPR require them to reflect similar standards of protection of human rights in subsequent commitments such as those under REC treaties. ¹³Writing from a similar standpoint, Ebobrah notes that with the almost universal adoption of the ACHPR by AU member states, human rights has become a common thread in inter-­‐state discourse on the continent, and has of necessity, been incorporated into the workings of RECs.¹⁴ In the same vein, Ruppel attributes the inclusion of human rights into the mandate of RECs to the influence by contracting states, which have in their own right, individually ratified various human rights treaties at the international and regional levels. Thus ‘the obligations and commitments resulting from such human-­‐rights-­‐ related legal instruments are also reflected in the conceptualisation of RECs.’¹⁵ The argument advanced by these scholars is based on the presumption that states would replicate their human rights commitments made at the international and regional level into their sub-­‐regional arrangements.
Other views put forward to explain the inclusion of human rights into the mandates of RECs broaches the subject from a socio-­‐economic perspective. The core of this school of thought is that one of the objects of integration is to enhance the standard of living of the citizens in the participating states. The end result of this would be improvements in the enjoyment of socio-­‐economic rights, even if not clearly stipulated or stated as an objective. Nwauche observes in this regard that human rights form part of the integration process from the outset-­‐even if this is not explicitly declared or acknowledged. He attributes this to the fact that integration aims at satisfying at least the socio-­‐economic rights of the people of the region in question.¹⁶ In the same vein, Ebobrah argues that there is a measure of convergence between human rights and the socio economic objectives of integration, particularly in the context of the improvement of the welfare of the people in participating countries.¹⁷ Viljoen notes that ‘although human rights and the rule of law do not feature as prime goals of RECs, these aspects form part of the way in which the goals have to be attained in principled way.’¹⁸Nwogu contributes to this discourse from a right to development perspective and observes that regional integration is an instrument for realizing the right to development as outlined in article 22 of the ACHPR.¹⁹Accordingly, the peoples’ right to development imposes a corresponding duty on states, individually or collectively, to ensure its realization. She therefore posits that state efforts at economic development through regional economic integration regimes can be deemed to be the collective effort of states to ensure the fulfilment of the right to development as set out in the ACHPR.²⁰
Arguing from a peace and security angle, Baimu²¹ observes that, peace and stability are essential ingredients for socio-­‐economic development. In his view, peace and security can only thrive where human rights are respected, promoted and protected. Therefore, RECs need to integrate human rights in order to create peace and stability in the region, thus contributing to enhanced socio-­‐economic development.²²
Taking cognizance of the various scholarly views put forward, and in contributing to this conversation, it is submitted that converging states would also include human rights guarantees in the constitutive instruments of RECs arising out of their ‘selfish’ national interest to secure their citizens’ rights across national frontiers. This stems from the realisation that elements of integration such as free movement of labour, people and the right of establishment across national frontiers require their citizens to move outside their national territories and thus states would expect certain minimum human rights guarantees for their citizens whenever they enter other member states’ territories. ²³

TABLE OF CONTENTS
DECLARATION
ABSTRACT 
ACKNOWLEDGEMENTS
DEDICATION.
LIST OF, ABBREVIATIONS 
CHAPTER ONE INTRODUCTION TO THE STUDY
Background
2. Problem Statement and Research
3. Theoretical Framework.
4.Significance of Study
5. Definition of Terms
6. Literature Survey
7. Research Methodology.
8. Chapter Breakdown
9. Limitation and temporal scope
CHAPTER TWO UNDERSTANDING THE EAST AFRICAN COMMUNITY’S INSTITUTIONAL FRAMEWORK
1. Introduction
2. RECs and Human Rights in Africa
3. EAC’s Institutional Architecture
4. Conclusion
CHAPTER THREE  THE INTERPLAY BETWEEN COMMUNITY LAW AND NATIONAL LAW WITHIN THE EAC PARTNER STATES 
1. Introduction
2. Character and Status of International Law in the Domestic LegalSystems of EAC Partner States:
Revisiting the Monist and Dualist Debate
3. Sources of EAC Law and their Interplay with National Law.
4. Interplay Between Community Law and Partner States’ National Law
5. Conclusion
CHAPTER FOUR  THE DOMESTIC IMPACT OF EAC’S BINDING MEASURES ON THE PROMOTION AND PROTECTION OF HUMAN RIGHTS 
1.Introduction
2. The EAC Treaty.
3. Protocols Adopted under the EAC Treaty Framework-­‐ (EAC Common Market Protocol)
4. Acts of the Community
5. Decisions of the EACJ
6. Regulations, Directives and Decisions of the Council
7.Conclusion
CHAPTER FIVE  THE DOMESTIC IMPACT OF THE EAST AFRICAN COMMUNITY’S SOFT LAW HUMAN RIGHTS MEASURES 
1.Introduction
2 Understanding Soft Law
3. Soft Law Human Rights Measures in the EAC Against Women.
CHAPTER SIX  CONCLUSION AND RECOMMENDATIONS.
1. Introduction
2.Summary of Findings.
3.Reflection on National Impact of EAC’s Human Rights Measures.
4.Recommendations
BIBLIOGRAPHY
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