CATHOLIC UNIVERSITY OF EASTERN AFRICA

NAME: SCHOLARSTICAH AKOTH

REGISTRATION NO: 1041400
UNIT TITLE: EAST AFRICA COMMUNITY LAWS
UNIT CODE: CLS 303
INTRODUCTION
Regional treaties like the African Union Constitutive Act, 2000 do accept the
existence of "regional economic communities," as the UN Charter, 1945 clearly
acknowledged their importance and role (RECs). The EAC Treaty is governed by the
1969 Vienna Convention on the law of Treaties.
In August 2004, the summit of the heads of state for the EAC appointed a committee
to carry out a study on the possibilities of achieving an East African Political
Federation, this was as in Article 123 paragraph 6 which empowers the summit to
initiate the process towards the establishment of a Political Federation of the partner
states by directing the council to undertake the process.1
The committee set up in 2004 came up with recommendations in fast tracking the
East African Political Federation. Fast tracking means the practice of speeding up the
progress of a project or process. Summit directives were issued and national
consultation with stakeholder were undertaken to examine and facilitate and fast
track the federation process.
The Treaty for the establishment of East African Community under Article 5
provides for the objectives of the community among which is the establishment of a
political federation.2 This study seeks to compare the compatibility or contrast the
recommendation of the committee of Fast tracking EAC political federation Vis a Vis
the provisions in the treaty for the establishment of The East African Community,
1999.

Among the Committee recommendations were:

1. Retention of the timeframes for the customs Union of five (5) years
effective January 1, 2005 in place.

CUSTOMS UNION
A customs union is established in the treaty for the establishment of East African
Community under Article 75 and the details of which shall be provided under the
East African Community Customs Union Protocol.3 The protocol's policy objectives
include the liberalization of the intraregional trade regime based on reciprocal
benefits, the promotion of production efficiency within the community, as well as
the encouragement of industrial and economic diversification. In accordance with
protocol, a common external tariff (CET), trade remedies, and the Customs duty
collection, customs violation investigation, and suppression are all done by
establishing a standardized method for valuing products.

1
Article 123(6) EACJ Treaty
2
Article 5 EACJ Treaty
3
Article 75 EACJ treaty
The Treaty called for the formation of a single market and investment zone in the
area, as well as the harmonization of policies to encourage cross-border investment
and trade, facilitate cross-border movement of people and goods, build
infrastructure, and advance the development of technological and human resources.
The committee proposed for the retention of the timeframes as was earlier in the
treaty to be five years effective January 2005.
The EAC Customs Union Protocol as is referred in the preamble:
“ whereas by the provisions of paragraph 1 of Article 75 of the treaty the partner
states agreed to conclude the Protocol on the establishment of a Customs Union
within a period of four years.”4
The set timelines for the establishment of an East African Customs Union were to be
retained for fast tracking the community’s federation. The launching date for the
political federation was set at 1 January 2010.

2. But overlapping of the four (4) stages of integration to allow the

undertaking of parallel activities at each stage to ensure that the basic
minimum requirements at each stage for the Federation are achieved within
the five (5) years effective January 1, 2005
The committee proposed that instead of the gradual process for integration process
in Article 5 of the treaty that all the stages would be integrated in a parallel and
overlapping process to achieve basic requirements of each integration stage within
five years. That this would enable parallel activities to take root and be adequately
achieved overtime. The committee recommended that fast tracking the process
should follow three stages articulated in the Wako Report committee; a preparatory
phase, a transitional phase to a federation phase. The founding of a political
federation shouldn't need to wait for all of the integration puzzle pieces to fit
together, according to the guiding principle that underpins all phases.
Article 5(2) of the treaty otherwise envisages a step by step progression of an
integration process beginning with a more rudimentary process to a more
sophisticated one. That is from a Customs Union, a Common Market to a Monetary
Union and finally a Political Federation.5
Even though the Committee’s recommendations for a parallel process of integration
seemed like a faster way of fast tracking the East African Federation it would
otherwise sound as a basis for disputing the pact sunt servanda rule (a Latin word for
agreements must be kept).6 This rule demands that he who enters into a treaty must
observe it in good faith and honor it. This was well showcased in the case of Mary
Ariviza &another v The AG of Kenya &another (2010) the only way would therefore
4
Preamble of EAC Customs Union Protocol
5
Article 5(2) EAC Treaty 1999
6
Article 26 Vienna Convention on Law Of Treaties
be to amend the treaty so as to replace the gradual process in the EAC treaty of 1999
with the parallel process as otherwise recommended.
3. A consolidated and planned approach, in the form of negotiating templates,
in order to hasten the process towards Political Federation.
This was in order to fast track the process towards a political federation. . The
committee acknowledged that the design and implementation of the strategic
interventions envisioned and the participation of a wide range of stakeholders,
including the private sector, professional organizations, civil society, and the general
public, would both play a role in the success of this approach.7
Article 123 empowers the Summit to initiate the process towards establishment of a
political federation of the partner states by directing the council to undertake the
process.8
POLITICAL FEDERATION
For a political federation to be achieved it was suggested that there should be a
division of responsibility between the arms and tiers of Government. The specifics of
the functional and jurisdictional division depend on the constitution's design, which
was reached through stakeholder negotiation. It was also noted that a federation's
very design, particularly how it addresses the allocation of costs and benefits in the
short and long terms, may be crucial for its sustainability.
Additionally, it was believed that direct elections held by the populace would
legitimize it and make it feasible. It was also seen that empowerment by the citizens
through direct elections was seen as legitimizing it prior to make it more
sustainable.9
Additionally, the committee discussed ways to represent, consult, make policies, and
resolve disputes inside the federation. The fast-track committee recommended that a
15-member committee be established to prepare the East African federation's
constitution, with all the challenges that it would entail.10
The committee sought to provide a lasting solution as to the strained relationship
between the East African Legislative Assembly (EALA) and the National Assemblies
of partner states. An example of the problems between these institutions is
information is regularly exchanged, including EALA reports delivered to the
respective foreign affairs ministries. But because domestic politics tend to be inward-
looking, national assemblies hardly ever discuss EALA findings or other regional
issues. 
Successful attempts to establish informal inter-parliamentary liaison committees in
substantive areas have been attempted to improve contact. EALA members are

7
Report of the Committee on East African Federation 2004k
8
Article 123(6) EAC Treaty 1999
9
Report of the Committee on East African Federation 2004
10
Report of the Committee on East African Federation 2004
chosen for five-year terms and are eligible for one reelection. The first five-year term
will expire in November 2006. The number of sitting days per year is 60.11
Therefore to hasten the process of regional integration, the heads of state decided to
appoint ministers who would be entirely in charge of EAC matters, however they
would live in the capitals rather than Arusha as the committee had suggested.
In order to oversee and coordinate the fast-tracking path towards a federation, they
also decided to create the position of deputy secretary-general of the EAC.
WAY FORWARD:
In the context of East Africa, there may be need to have a clear Transition Chapter
within the Constitution where at the initial stages:
(a) The Heads of States of the Federation could either be:
(i) One of the Heads of States of the Partner States, in which case, it will be
rotational Head of State of the Federation say for each year;
Established under Article 10 of the East African Treaty is the summit which shall
consist of the Heads of States or Government of the partner states.12
Article 11 (6) of the treaty provides that “An Act of the Community may provide for
the delegation of any powers, including legislative powers, conferred on the Summit
by this treaty or by any Act of the Community, to the Council or to the Secretary
General”13
Article 12 of the treaty states that the summit shall determine its own procedure
including that for convening its meetings, for the conduct of business thereat and at
other times and for the rotation of the office of the chairperson among the members
of the Summit.14
It was of the recommendation of the committee that one of the heads of states of the
partner states will be the rotational head of the Federation for a period of a year, this
is as in line with the provisions of the treaty. 15
The Council each year elects a Chairperson by rotation to serve a one year term to
the office of the chairperson of the Council of Ministers.
(ii) Elected by the National Parliaments plus the East African Legislative
Assembly;
The committee therefore proposed that the Head of the Federation would be elected
by the National Assemblies of the partner states and the East African Legislative

11
Ibid 10
12
Article 10 EAC Treaty 1999
13
Article 11(6) EAC Treaty 1999
14
Article 12 (5) EAC Treaty 1999
15
Article 14 EAC Treaty 1999
Assembly. This is contrary to the provisions of the treaty which spells out the role of
the EALA
EAST AFRICAN LEGISLATIVE ASSEMBLY
The Assembly is established under Article 49 of the treaty: it is the law making organ
of the EAC :the Article also spells out the functions of the Assembly as to elections,
The Assembly may for purposes of carrying out its functions, establish any
committee or committees for such purposes as it deems necessary. 16 The EALA elects
chairpersons to the various standing committees of the house, each elected member
serves on two committees and membership is on quorum. The function of the
committee include examining, discussing and recommending to the house on bills
laid before the house.

(iii) Federal Parliament – which in the transitional period could as at present be

indirectly elected by National Assemblies with due regard to gender – (30% to be
women);
The proposal by the Committee for a federal parliament with due regard to gender
introduced a new concept which would give gender balance with a percentage
representation of women being at 30. The EAC treaty calls for inclusion on the basis
of shades of opinion gender and other special interest groups
The EAC Treaty 1999, states that the National Assembly of each partner state shall
elect not from among its members nine members who shall represent as much as its
feasible the various political parties represented in the National Assembly shades of
opinion, gender and other special interest groups in that partner state in accordance
with such procedure as the National Assembly of each partner state.17 This provision
in the treaty does not explicitly provide for percentages in gender representation but
the committee deemed it right that there should be due regard to women
representation by women by at least 30% of the members in the Legislative
Assembly.
The issue of gender representation has been a controversy thereby questioning the
legitimacy as in Appeal No. 2 of 2015 AG of United Republic of Tanzania vs
Anthony Calist Komu.18
The challenge on women representation at the East African Legislative Assembly has
been an ongoing issue till now, women rights organizations have petitioned the
EALA seeking intervention in realization of the 30% principle.
(iv) During this transitional period, the Constituent Boundaries be delineated to
enable both the Head of State and Federal Parliament to be directly elected.

16
Article 49(2) (e) EAC treaty 1999
17
Article 50(1) EAC Treaty 1999
18
East African Law Reports.
The elections for the federal Head of state as is in the 1999 EAC treaty is undertaken
by the council, which one of the members of the summit shall be elected the head for
a one year period on a rotational basis. 19The committee introduced a process where
the federal head of state shall be directly elected by the citizens of each member
state. The constituent boundaries be clearly outlined for all citizens to effectively
participate in election of the Federal head.

CONCLUSION
Conclusively, the basic principles on the Law of Treaties is fundamental to a
successful process of integration. The rule imposing the obligation to fulfill one’s
treaty obligations in good faith the pacta sunt servanda rule subsists. In the context of
the EAC treaty of 1999 it is elaborate and consistent and Article 5(2) is one of the
examples, that each integrated process shall be articulated in an instrumental
19
Article 14 EAC Treaty 1999
protocol. , Even though the EAC is really concerned about the apparent slowness of
the integration process, it need not use that worry as a justification for disregarding
the pacta sunt servanda rule, amending the Treaty to remove the gradualism and
pragmatism entrenched in the EAC Treaty of 1999 seems to be the only conventional
and legal course of action.

REFERENCES
East African Community Website
www.eac.int,2015
East African Community Secretariat: Protocol on the establishment of East African
Customs Union
East African Community (2011) Concerns and challenges of the East African Federation,
Arusha, 2011
Kibua, T.N (2005) Fast Tracking East African Integration. Assessing the feasibility of a
Political Federation by 2010 CHR, Michelsen Institute, Bergen, 2005.
Korwa G. Adar, Policy Brief 4; Fast Tracking East African Political Federation: A
view from Uganda 2008
Omar D. Kalinge Challenges of Fast Tracking East African Federation (2015)
Oxford Dictionary, definition of fast tracking
Report of the Committee on Fast Tracking East African Federation (2004)
Treaty for the Establishment of the East African Community, 1999