By using FIVE decided cases, demonstrate how the East African Court of

Justice has either contributed to or hindered the integration process in

the East African Community. In your response, clearly indicate the
practical impact of each case in light of the East African Community
objectives and principles.

The East African Community (herein the EAC)

In 1999, Kenya, Tanzania decided to revive the 1967 East African Community which
had collapsed in the late 1970s,and they set for themselves the goal to establish a
customs Union, a common market, subsequently a monetary union and ultimately
a Political Federation as envisaged under article 5 of the Treaty for the Establishment
of the East African Community. In pursuant of this ambitious agenda, the three
partner states, since 2007 joined by Rwanda, Burundi and South Sudan.

The East African Court of Justice.

The East African Court of Justice (herein the the EACJ) is the judicial arm or organ
of the East African Community. It was established in 2001 under article 9 of the
Treaty for the Establishment of the East African Community. Its responsibility or
mandate is to ensure smooth regional integration through administration of justice
and respect for the rule of law. The jurisdiction of this court encompasses the
interpretation and application of the Treaty for the Establishment of the East African
Community. Its jurisdiction also extends to the issuance of advisory opinions and to
determine arbitral matters as well as employment and labour disputes that arise
between the East African Community and its staff. The High Courts of the respective
partner states serve as the sub-registries of the court.

One of the cases that the East African Court of Justice decided is the case of
Professor Peter Anyang Nyongo and 10 Others vs The Attorney General of Kenya
and Others. This was a case involving the election of the members of the East
African Legislative Assembly (EALA) from Kenya, noting failure to comply with
article 50 of the Treaty for the Establishment of the East African Community. The
basic rules for these elections are laid down in Article 50 of the Treaty for
Establishment of the East African Community, which stipulates that:

the national assembly of each Partner States shall elect, not from among its members, nine
members of the Assembly, who shall represent as much as is feasible, the various political
parties represented in the National Assembly, shades of opinion, gender and other special
interest groups in that Partner States, in accordance with such procedure as the National
Assembly of each Partner State may determine.

Kenya elected its first 9 members of the EALA which were indeed elected in
accordance with the rules stipulated under article 50 of the Treaty and their term
expired on the 29th of November 2006. The National Assembly of Kenya nominated
nine new members, they were approved and thus deemed to be elected and their
names were submitted to the EALA. In respect of this nomination, Professor Anyang
Nyongo and others petitioners commenced proceedings before the East African
Court of Justice arguing that the Kenyan election rules contravened or were not
consistent with article 50 of the Treaty for the Establishment of the East African
Community and therefore the nominated members of the EALA were not validly
elected.

The petitioners filed a reference before the EACJ with interlocutory application for
an interim order to prevent the nine nominated person by the Kenyan Assembly
from taking of office as members of the EALA on the 29th of November, the day
which the elected persons were supposed to take of office. The court granted the
injunction the petitioners on the basis that the claimant had a prima facie case with a
high probability of success and that the claimants as well as the EALA and the East
African Community would suffer irreparable damage if it would turn out that one
third of the EALA members were not legally elected.1

The view of the Court in this regard was that the Kenyan rules did not provide for
such voting procedure. It clear that this case has positive impact in the integration of

1
Ruling of 27th of November 2006, Reference No.1 of 2006, Professor Anyang Nyongo and 10 Others V The
Attorney General of the Republic of Kenya and 5 Others.
the East African Community in the sense that the Court believed that harmonization
of the East African Law is one means that can be used in the integrating process. The
general observation of the court concerning the need for ensuring the uniformity of
the East African Community Law was that the lack of uniformity in the application
of any article of the Treaty is a matter for concern as it bound to weaken the
effectiveness of the Community law and in turn undermine the achievement of the
objectives of the Community. Article 126 of the Treaty, the Partner States commit
themselves to take necessary measures to try and harmonise all their national laws
appertaining to the Community. In this respect, the Court proposed an urgent
harmonisation of such laws.

The decision of the Court that the Kenyan election rules where undoubtedly at odds
with the requirements of article 50 of the Treaty for the Establishment of the East
African Community triggered negative responses from the respective Partner States
of the Community. The court was accused of interfering with the national politics of
the member states but however it did not give in to the political pressure and
affirmed its aforementioned decision. My view is that the EACJ must have power or
influence that transcends national boundaries or government or an international
supranational Court that directly interferes in the functions of national parliaments
and the international constitution structures of the Partner States. By giving the
EACJ such powers, it would be able to ensure that the principle of good governance
is observed as provided under article 6(d) of the Treaty.2

It is noteworthy to mention despite reasonable outcome of the court in this case, the
Partner states undertook an amendment process to amend the Treaty for the
Establishment of East African Community which has a negative impact to the
achievement of the objectives of the Community. It can be argument that to a greater
extend the amendments were aimed at circumventing the decision of the Court in
the case in question, which brings me to the conclusion that the Partner States are

2
Article 6(d) of the Treaty for the establishment of the East African Community states that, good governance
including adherence to the principle of democracy, the rule of law, accountability, transparency, equal
opportunities, gender equality, as well as recognition, promotion and protection of human and peoples rights
in accordance with the provisions of the African Charter on Human and Peoples Rights.
not willing to give away their sovereignty and independence. My opinion is that if
the Partner States give away their sovereignty and independence, its a move closer
to a Political Federation as the Court through its mandate of applying the and
making sure the provisions Treaty of the Treaty are adhered to, may be able to give
guidance on how to achieve good governance that is identical across the whole of
East Africa and that would be a step forward in the integration process. However,
the Partner States tend to protect their national interest which is a clear hindrance to
the integration process.

The East African Law Society and Others v The Attorney General of the Republic of
Kenya and Others (2008)3

This particular case originated from the interim ruling of November 2006 in the
Professor Anyang Nyongo Case in which the Court reiterated that the Kenyan election
rules for the EALA were prima facie at odds with Article 50 of the Treaty and this
ruling led to the suspension of the inauguration of the Second EALA. As mention in
the above case of Professor Ayang Nyongo and Others, its ruling sparked off a
flurry of hasty activity including questions in respect of the jurisdiction of the EACJ.
The Summit issued a communiqu in which it directed a Special Summit meeting to
consider amending the Treaty. The Attorney Generals of the respective EAC
members agreed on the amendments and the EAC Secretary General submitted the
proposed amendments to the Partner States, which they welcomed, signed and
ratified.

The main issues before the Court in this case were whether the amendments to the
EAC Treaty that were done without compliance with procedural regulations of the
Treaty were a violation of the Treaty and whether such amendments were done in
bad faith. The case also raises issues relating to the right to participation of the EAC
citizens and non-interference with the independence of the EACJ.

3
Reference Number 3 of 2007, 1 September 2008).
This particular case law or decision of the Court deals with several issues
appertaining to the East African Community Law. The first issue that the Court
dealt with in respect of this case was whether the reference was properly before it
(the Court), which the respondent had argued that the claimants lacked capacity to
bring the case before the Court. The Court enumerated that Article 30 of the Treaty
for Establishment of the East African Community confers upon, "any person who is
a resident in a Partner State " the right to refer for determination by Court the
legality of any Act, regulation, directive, decision or action of a Partner State or an
institution of the Community on the grounds that such act are unlawful. The view of
the Court was that Article 30 was deliberately included to ensure that "East Africans
for whose benefit the Community was established participate in protecting the
integrity. The Court further stated that the mere fact that Article 30 of EAC of EAC
Treaty does not refer to acts of organisation of the Community does does not imply
the inadmissibility of the case.

The second issue that issue dealt with in this case was the question as to whether the process
of amendment infringed Article 150 of the Treaty. The Court in this regard referred to Article
7 of the Treaty, which stipulates that one of the principles governing the pratical achievement
of the EAC objectives which is "people centred and market-driven cooperation. In regard to
this, the preample of the Treaty says that one of the reasons why the 1967 EAC collapsed in
1977 concerned "the lack of strong participation of private sector and civil society in the
cooperation activities" because of that the Treaty now includes the principle of "people-
centred" Cooperation. (Art.7(1)(a)EAC).

The Court took notice of the that fact that the proposal to fast-track political federation and
the protocol on the Customs Union hand been preceded by consultations and that there are
will on-going consultation on the "Zero Draft Protocol to Operationalize Extended
Jurisdiction" and the Common Market Protocol. According to the Court the Consultations
reflected agreement among the Partners States that the Court the Consultations reflected
agreement among the Partner States that the people-centred cooperation is also applicable to
the treaty amendment process.

In this regard the Court cited Article 31 of the Vienna Convention, which states that in the
interpretation of treaties account shall be taken of the inter alia "any subsequent practice in
the application of the treaty", by so doing the Court took into consideration the said series of
practice in the application of the Treaty, the people shall be consulted. In respect of this
consideration by the court, it is clear that the amendments which were put forward without
consulting the stakeholders (East Africans) would be a recipe for regression to the situation
lamented in the preamble of "lack of strong participation of the private sector and civil
society" that led to the collapse of the first Community.

The third issue that the Court considered in this case is whether the specific manner in which
the treaty was amended was in violation of articles 8(1)(c) and 38(2) of the Treaty. Article
8(1) envisages that Partner States shall refrain from engaging in measures that are likely to
jeopadise achievement of the objectives of the Treaty; and article 82(2) of the same Treaty
provides that where a dispute has been referred to the Court, Partner States shall refrain from
any action which might be detrimental to the resolution of the dispute or aggravate it. The
Court agreed with the Court's interim order of 27 November 2006 in Anyang' Nyong'o's case
and that the proposal to extend the grounds for removal of judges from the Court was
calculated to intimidate the judges and was thus likely to be detrimental to the resolution of
the dispute. The reiterated that the amendment was capable of unduly influencing the
judgement in Professor Anyang 'Nyong'o and thereby detrimental to the resolution of the
disputes.

However, after all that the court enumerated above, the Court refused to declare,as claimants
had requested, the court enumerated that the entire process of amendment of the Treaty was
of no legal effect.

Katabazi and Others v Secretary-General of the East African Community and Another (2007)