The re‐birth of the East African Community

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Background to the study

Respect for human rights has emerged to be a dominant subject in the contemporary agenda of regional integration.1 The relevance of human rights in regional integration is evident from the number of international organisations which have made human rights one of their governing principles. Some organisations have gone further by requiring respect for human rights to be one of the prerequisites for acquiring their membership.2 The presence of human rights in the founding treaties of international organisations underpins the important role that human rights have in regional integration initiatives.
To ensure that member states and the institutions of an organisation adhere to the treaty norms, a judicial organ is normally established under the auspices of these organisations. Such progress in modern international law is a clear attempt to realise the rule of law beyond national borders.3 It is now accepted that human rights in Africa are under the auspices of regional and sub‐regional organisations. The role of African sub‐regional courts in protecting human rights within their respective organisations is gradually taking shape.
Most African regional economic communities (RECs), established as building blocks in the African economic integration process, have made the promotion and protection of human rights one of the governing principles for achieving their goals.5 Some REC treaties refer to the African Charter on Human and Peoples’ Rights (African Charter) as the normative standard for realising human rights within their respective communities.6 So far, the Economic Community of West African States (ECOWAS) has emerged as the most active REC in promoting and protecting human rights in Africa.7 The revised ECOWAS Treaty of 1993 refers to human rights as one of the fundamental principles that should be adhered to in pursuing Community objectives.
In order to ensure that human rights are strongly protected, the ECOWAS Community Court of Justice (ECOWAS Court) is conferred with an explicit human rights jurisdiction to determine human rights disputes.9 The direct involvement of sub‐regional organisations in protecting human rights is an encouraging development. In fact, such evolution is the best way of complementing the already existing African human rights system.10 For instance, the ECOWAS Court has addressed numerous issues, such as slavery, which are yet to be given much attention by the African Commission on Human and Peoples’ Rights (African Commission) or the African Court on Human and Peoples’ Rights (African Court).
At the end, the ECOWAS Court has been making a telling contribution to the African human rights jurisprudence.11 In East Africa, after the rebirth of the East African Community (EAC), EAC citizens seem set for improvement in their economic, social and political life, based on the nature and progress of EAC integration.12 With the aspiration to fast‐track and deepen regional integration, the EAC member states aimed at developing various programmes and policies in different areas, including the economic, social, political and legal spheres.13 They are also committed to observing the principles of good governance, including adherence to the principles of democracy.

TABLE OF CONTENTS :

• DECLARATION
• ABSTRACT
• ACKNOWLEDGEMENT
• LIST OF ABREVIATIONS
• INTERNATIONAL CASE LAW
• NATIONAL CASE LAW
• CHAPTER INTRODUCTION TO THE STUDY
  • 1.1 Background to the study
  • 1.2 Problem statement
  • 1.3 Research objective and questions
  • 1.4 Significance of the study
  • 1.5 Literature review
  • 1.6 Research methodology
  • 1.7 Definition of key terms
• 1.8 Chapter outline
• CHAPTER THE CURRENT HUMAN RIGHTS REGIME IN THE EAST AFRICAN COMMUNITY
  • 2.1 Introduction
  • 2.2 Background to East African integration
  • 2.2.1 Colonial period
  • 2.2.2 Postcolonial period
  • 2.2.3 The re‐birth of the East African Community
  • 2.3 The EAC as a subject of international law and its position in realising human rights
  • 2.3.1 International legal personality
  • 2.3.2 Supremacy of the EAC law
  • 2.3.3 Interaction between domestic and EAC law
  • 2.3.4 Liability of member states for breaching EAC law
  • 2.4 Human rights in the EAC
  • 2.5 Legal source for human rights protection in the EAC
  • 2.5.1 Human rights norms in the EAC Treaty
  • 2.5.2 Human rights related protocols
  • 2.5.3 Human rights related legislation
  • 2.5.4 The African Charter on Human and Peoples’ Rights
  • 2.5.5 Other international human rights instruments
  • 2.5.6 Customary international law
  • 2.5.7 General principles of law
  • 2.5.8 Judicial decisions
  • 2.5.9 The writings of publicists
  • 2.6 The role of EAC organs in realising human rights
  • 2.6.1 The Summit
  • 2.6.2 The Council
  • 2.6.3 The Secretariat
  • 2.6.4 The East African Legislative Assembly
  • 2.6.4.1 Election of members of the EALA
  • 2.6.4.2 Functions
  • 2.6.4.3 The role of the EALA in human rights
  • 2.6.5 The East African Court of Justice
  • 2.7 Rationale for human rights integration in the EAC
• 2.8 Chapter conclusion
• CHAPTER HUMAN RIGHTS MANDATE OF THE EAST AFRICAN COURT OF JUSTICE
  • 3.1 Introduction
  • 3.2 The Court of Appeal for East Africa
  • 3.3 The revived Community Court and its quest for human rights protection
  • 3.4 Jurisdiction
  • 3.4.1 Material jurisdiction
  • 3.4.1.1 Interpreting human rights norms
  • 3.4.1.2 Judicial law making or purposive interpretation?
  • 3.4.1.3 EACJ’s articulation on human rights related cases
  • 3.4.2 Personal jurisdiction
  • 3.4.3 Temporal jurisdiction
  • 3.4.4 Territorial jurisdiction
  • 3.4.5 Advisory opinions
  • 3.4.6 Preliminary rulings
  • 3.4.7 Inherent powers
  • 3.5 Individuals and non‐state entities
  • 3.5.1 Direct access
  • 3.5.2 Public interest litigation
  • 3.5.3 Third party interventions
  • 3.5.4 Beyond intervention: Amicus curiae before the EACJ
  • 3.5.5 Legal representation
  • 3.5.6 Sub‐registries: bringing justice closer to the people
  • 3.6 Admissibility of cases and the prospects of human rights litigation
  • 3.6.1 Exhaustion of local remedies
  • 3.6.2 The doctrine of res judicata
  • 3.6.3 The two‐month rule
  • 3.7 Court judgments
  • 3.7.1 Nature of judgments and remedies
  • 3.7.2 Execution of judgments
  • 3.7.3 Non‐compliance
• 3.8 Chapter conclusion
• CHAPTER A FRAGILE BASTION: CHALLENGES FACING THE EAST AFRICAN COURT OF JUSTICE IN ITS PROSPECTS OF PROTECTING HUMAN RIGHTS
  • 4.1 Introduction
  • 4.2 Politicisation of the EACJ: A threat to its future
  • 4.2.1 Background of the Anyang’ Nyong’o case
  • 4.2.2 Reactions to the Anyang’ Nyong’o ruling
  • 4.2.2.1 Recusal application
  • 4.2.2.2 Hasty amendment to the Treaty
  • 4.2.2.3 Reaction from civil society
  • 4.2.3 Legality of the 2007 Treaty amendments
  • 4.2.3.1 Procedures for amending the EAC Treaty
  • 4.2.3.2 Encroachment of the process
  • 4.2.4 Impact of the EAC Treaty amendments
  • 4.2.4.1 Two‐tier court structure
  • 4.2.4.2 Additional grounds for the removal and suspension of judges
  • 4.2.4.3 Limiting the Court’s mandate
  • 4.2.4.4 Time limitation for lodging complaints before the Court
  • 4.2.5 Pending human rights jurisdiction
  • 4.2.6 Attempts to confer the EACJ with a criminal jurisdiction
  • 4.2.6.1 The relationship between Kenya and the ICC
  • 4.2.6.2 Justification for criminal jurisdiction in the EACJ
  • 4.2.7 Role of the EACJ in a political environment
  • 4.2.7.1 Judicial behaviour of international courts
  • 4.2.7.2 Role of judges
  • 4.3 Proclamation of state sovereignty
  • 4.3.1 State sovereignty and contemporary international law
  • 4.3.2 Evidence of the sovereignty syndrome in the EAC
  • 4.4 Lack of effective enforcement mechanisms
  • 4.4.1 Lessons from other jurisdictions
  • 4.4.1.1 The International Court of Justice
  • 4.4.1.2 The European Court of Human Rights
  • 4.4.1.3 The Court of Justice of the EU
  • 4.4.2 EACJ enforcement mechanisms
  • 4.4.2.1 Determining non‐compliance
  • 4.4.2.2 Consequences of non‐compliance
  • 4.5 Undefined relationship with parallel regional mechanisms involved in the protection of human rights
  • 4.5.1 The African Court on Human and Peoples’ Rights
  • 4.5.2 The African Commission on Human and Peoples’ Rights
  • 4.5.3 NEPAD, APRM and human rights
• 4.6 Chapter conclusion
• CHAPTER JUDICIAL INDEPENDENCE OF THE EAST AFRICAN COURT OF JUSTICE: A PREREQUISITE FOR EFFECTIVE HUMAN RIGHTS PROTECTION
  • 5.1 Introduction
  • 5.2 The concept of judicial independence and impartiality
  • 5.3 International standards on judicial independence
  • 5.4 Judicial independence and its relationship with human rights
  • 5.5 Factors determining judicial independence
  • 5.5.1 Institutional arrangement
  • 5.5.2 Appointment of judges
  • 5.5.2.1 Qualifications
  • 5.5.2.2 Nationality of judges
  • 5.5.2.3 Gender balance
  • 5.5.3 Term of appointment
  • 5.5.4 Removal and suspension of judges
  • 5.5.5 Adequate remuneration
  • 5.5.6 Financial autonomy of the Court
  • 5.5.7 Privileges and immunity
• 5.6 Chapter conclusion
• CHAPTER CONCLUSION AND RECOMMENDATIONS
  • 6.1 Conclusion
  • 6.2 Recommendations
  • 6.2.1 The EACJ should acquire an explicit human rights mandate
  • 6.2.2 The time limitation clause should be abolished
  • 6.2.3 A need for a more meaningful institutional and legal framework for judicial independence
  • 6.2.5 The EACJ should be endowed with its own enforcement mechanisms
  • 6.2.5 The EACJ should take measures to deal with the politicised environment
  • BIBLIOGRAPHY

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