Professional Documents
Culture Documents
BY
TUSIIME ARAFAT 220-053011-20133
NAKIYEMBA HASIFA 220-053012-19320
NSUBUGA HAMIS 220-053012-16247
OLAMBA ANNET 220-053012-16265
MAGEZI ADAM 220-053012-19261
SUPERVISOR
MR. MUKAMA SANYU JAMIL
2024
i
Contents
CHAPTER ONE: INTRODUCTION ......................................................................................... 1
1.1 Introduction ................................................................................................................. 1
1.2 Background of Study- .................................................................................................. 2
1.3 Statement of the Problem ............................................................................................. 4
1.4 Objectives of the Study ................................................................................................ 5
1.4.1 General Objective ................................................................................................. 5
1.4.2 Specific Objectives ................................................................................................ 5
1.5 Research Questions ...................................................................................................... 5
1.6 Scope of the Study ........................................................................................................ 6
1.6.1 Geographical Study .............................................................................................. 6
1.6.2 Thematic Scope..................................................................................................... 6
1.6.3 Time Scope ........................................................................................................... 6
1.7 Significance of the Study .............................................................................................. 6
1.8 LITERATURE REVIEW ............................................................................................ 6
1.9 RESEARCH METHODOLOGY ................................................................................. 9
1.9.1 Introduction.......................................................................................................... 9
1.9.2 Study Design ......................................................................................................... 9
1.9.3 Research Approach(s)......................................................................................... 10
1.9.4 Sources of Information ....................................................................................... 10
1.9.5 Data Collection Tools .......................................................................................... 10
1.9.6 Data Analysis ...................................................................................................... 10
1.10 Synopsis of the Chapter ............................................................................................. 11
SELECTED BIBILIOGRAPHY ................................................................................................ ix
ii
CHAPTER ONE: INTRODUCTION
1.1 Introduction
Whoever wants to overthrow the liberty of a nation must begin by subduing the freeness of
speech. The right to freedom of expression is so paramount in the lubrication of democracy.
The term freedom of expression is sometimes used synonymously with freedom of speech,
but includes any act of seeking, receiving and imparting information or ideas, regardless of
the medium used. Freedom of speech is the concept of the inherent human right to voice one's
opinion publicly without fear of censorship or punishment. Speech is not limited to public
speaking and is generally taken to include other forms of expressions.1 In many Nations,
particularly those ones with relatively authoritarian forms of Government, overt government
censorship is enforced. Censorship has also been alleged to happen in other forms and there
are different approaches to issues such as hate speech, obscenity and defamation law in
countries seen as liberal democracies. Freedom of expression entails freedom to hold
opinions without interference and the rights to impart, seek and receive information and ideas
regardless of form, content or source. It's an essential means by which citizens can influence
their leaders and governments.2
The East African Court of Justice (EACJ) is one of the organs established under Article 9 of
the East African Community Treaty.3 The East African Community (EAC) has demonstrated
some effectiveness in promoting regional cooperation in human rights relations. It also
disposes of a range of institutions including the EACJ and the Treaty to advance the respect
for human rights and to adjudicate independently cases brought before the court. Within the
EAC institutions or organs, the EACJ has a special mandate in terms of areas to cover and
independent ways of working. 4
This report will deal with the formal arrangements in place, including those to implement its
mandate. Secondly, this report will deal with challenges relating to the interpretation and
implementation of its mandate. This has resulted in rulings by the court that were politically
controversial to one or more EAC Partner States, given among other things the court’s efforts
1
Berger, G. (2010). Problematizing “media development” as a bandwagon gets rolling. The International
Communication Gazette, 72, 547–565.
2
Chibita, M. (2009). The politics of broadcasting, language policy and democracy in Uganda. Journal of
African Media Studies, 1(2), 295–307.
3
Treaty for the Establishment of the East African Community, signed on 30 November 1999, came into force
on 7 July 2000. Amended on 14 December 2006 and 20 August 2007 [herein EAC Treaty].
4
Ruhangisa J. E. (former registrar of the EACJ). 2011. The East African Court of Justice: Ten Years of
Operation (paper presented at the Sensitization Workshop on the Role of the EACJ in the EAC Integration,
Kampala 1-2 November 2011).
1
to adjudicate on matters that hint on human rights, an area that it has no mandate yet to
adjudicate upon. It further deals with the political backlash and the approaches by member
states to eliminate the EACJ, undo rulings or otherwise constrain the actions, scope and
independence of the court. The paper will also look at key conduits which push for the EACJ
to further take what some have called an activist stance in the pursuit of implementing its
mandate and pushing the boundaries for the enforcement of the protection of human rights
inclusive of the protection of freedom of speech and expression within the EAC.
5
EAC Treaty, Article 5(2).
6
Ibid.
7
Gathii J. (2014). Mission Creep or a Search for Relevance: The East African Court of Justice’s Human Rights
Strategy, Duke Journal of Comparative and International Law 24 250.
8
Possi A. 2016. It’s official: The East African Court of Justice can now adjudicate human rights cases, Africa
Law, 1 February 2016. Available at https://africlaw.com/2016/02/01/its-official-the-east-africancourt-of-
justicecan-now-adjudicate-human-rights-cases Accessed on 8/1/2024.
9
Odhiambo M., Chitiga R. & Eborah S. 2015. The Civil Society Guide to Regional Economic Communities in
Africa. Open Society Initiative for Eastern Africa.
10
East African Legislative Assembly. 2011.Roundtable on Strengthening the Implementation of Human Rights
in the EAC Region: The Role of the East African Legislative Assembly, Arusha, Tanzania 27 May 2011.
11
Ibid.
12
Ibid, p.113
2
newly independent East African states and the Constitutions of some of these states like
Tanzania (Tanganyika) did not include a Bill of Rights at the time.13The 1967 EAC Treaty
was also silent on the protection of human rights, indicating the reluctance of member states
to commit to the adjudication of such cases at the community level.
The EACA was shut down when the first EAC dissolved in 1977 mainly as a result of
Kenyan dominance and divergent political positions and ideologies amongst the member
states.14 The EAC was re-established in 2000. In contrast to its predecessor, the new EAC
institutionalized the EACJ as one of its organs with the mandate to interpret and apply the
EAC Treaty. In addition, article 27 confers on the EACJ such “original, appellate, human
rights and other jurisdiction as will be determined by the Council at a suitable subsequent
date”. The ‘Council’ refers to one of the key organs of the EAC, the Council of Ministers.
This article indicated a formal recognition by the highest decision making body of the EAC
to recognise the role of the court in adjudication of human rights issues.15
All EAC Partner States prescribe to the principles and values outlined in the EAC Treaty.
Article 3(3) explicitly provides for the “adherence to universally acceptable principles of
good governance, democracy, the rule of law, observance of human rights and social justice”
as one of the key considerations for membership. The EAC’s admission criteria is guided by
these principles and members who do not meet these criteria may be denied admission. The
EAC Treaty considers the rule of law and human rights as part of good governance. Good
governance encompasses accountability and transparency, which are key in acting as checks
and balances within the EAC.16
However, in practice, the jurisdiction to hear human rights matters is not explicit and is
subject to the conclusion of a Protocol to operationalize such jurisdiction. The jurisdiction of
the EACJ has often been challenged as seen in Burundi Journalists’ Union v Attorney
General of the Republic of Burundi.17 In 2013, the Burundi Journalists Union filed a
reference with the EACJ alleging that the Press Law enacted in Burundi restricted freedom of
the press, which is a cornerstone of the principles of democracy, rule of law, accountability,
transparency, and good governance. Before turning to the merits of the matter the EACJ
13
Ibid, p. 1112.
14
Mathieson, C. 2016. The Political Economy of Regional Integration in Africa: The East African Community
(EAC). European Centre for development Policy Management.
15
Michael, D. I. 2017. UN urges Burundi to reverse ban on oldest human rights group, 6 January 2017.
http://www.africanews.com/2017/01/06/un-urges-burundi-to-reverse-ban-on-oldest-human-rights-group/
Accessed on 8/1/2024.
16
Article 7(2) of the EAC Treaty.
17
Reference No. 7 Of 2013.
3
needed to determine whether the reference was properly before it and whether it had
jurisdiction to engage it. Finding that it did have jurisdiction, the EACJ reasoned that the
interpretation of the question whether articles 6(d) and 7(2) of the EAC Treaty were violated
in the enactment of the Press Law is a matter squarely within the ambit of this EACJ’s
jurisdiction. In essence, the EACJ read freedom of expression into the above articles and held
that the violations of freedom are justiciable as violations of the EAC Treaty, accordingly,
clothing it with jurisdiction.
Although this judgment is seemingly a strong precedent for future cases as it allegedly
removes any doubts over whether the EACJ can consider freedom of expression cases despite
its lack of explicit human rights jurisdiction, Partner states have often undermined the
EACJ’s mandate as a judicial organ to hear such matters. This makes enforcement of its
decisions problematic notwithstanding other constraints like budgetary constraints that the
EACJ experiences in promotion and implementation of the right to freedom of speech and
expression in East Africa.18
It is against this background that this research report sets out to examine the effectiveness of
the EACJ in the implementation of the Right to freedom of speech and expression in East
Africa.
18
Alter K.J, Gathii J. & Helfer L.R. 2016. ‘Backlash Against International Courts in West, East and Southern
Africa: Causes and Consequences’ The European Journal of international Law, 27(2): 293- 328.
19
EAC Treaty, Article 30(1).
20
East African Court of Justice. 2010. Strategic Document 2010-2015. April 2010.
http://eacj.org/2014/docs/EDITED%20FINAL%20COPY%20.pdf Accessed on 8/1/2024.
4
establishment by Partner States of parallel quasi-judicial bodies with the same mandate as the
EACJ and sovereignty challenges by members states upon the court’s jurisdiction.21 The
court also faces politicization of its decisions by Partner States which threatens its
independence. Further the EACJ has a two-month rule under Article 30(2) of the EAC Treaty
which requires references to be filed with the EACJ within two months of the alleged
violation. This time frame is narrow and can be difficult to comply with. In Attorney General
of Uganda and Another v Awadh and Others,22 the EACJ held that it would not be flexible on
this requirement. It is also necessary to note that there is no provision in the EAC Treaty that
recognises the concept of continuing violations. These challenges hinder the court's ability to
effectively settle disputes within the EAC and implement the right to freedom of speech and
expression in East Africa.23 Hence the need for this report.
21
Ruhangisa J. E. (former registrar of the EACJ). 2011. The East African Court of Justice: Ten Years of
Operation (paper presented at the Sensitization Workshop on the Role of the EACJ in the EAC Integration,
Kampala 1-2 November 2011). note 33
22
Case Number, APPEAL NO. 2 OF 2012.
23
East African Judges and Magistrates Association. 2010. Conference on Human Rights in East Africa, EAJMA
News, Issue No. 1 of 2010, May 2010. http://www.eamja.org/eamja_news_letter.pdf. Accessed on 8/1/2024.
5
1.6 Scope of the Study
The scope is presented under three sub-sections: geographical scope, thematic scope and time
scope.
24
Freedom of Expression and the Digital Environment in Eastern Africa, Monitoring report January–December
2020.
6
Charter on Human and Peoples’ Rights (the African Charter). The scope of the right to
freedom of expression and speech is broad. It requires states to guarantee to all people the
freedom to seek, receive, or impart information or ideas of any kind, regardless of frontiers,
through any media of a person’s choice, either orally, in writing or in print, in the form of art,
or through any other media of choice. He further states that The UN Human Rights
Committee, the treaty body of independent experts monitoring states’ compliance with the
ICCPR, has affirmed that the scope of the right extends to the expression of opinions and
ideas that others may find deeply offensive. The African Commission on Human and
Peoples’ Rights (African Commission) affirmed that states have an obligation to ‘facilitate
the rights to freedom of expression and access to information online and the means necessary
to exercise these rights.’ Despite these positive developments, governments in East Africa
have failed to create an enabling environment for the enjoyment of rights and freedoms in
relation to speech and expression, with numerous violations being noted across the region
affecting freedom of expression, access to information, privacy, and data protection among
other related rights. This report shall provide a detailed overview of these issues, as well as
recommendations to governments to bring their practices into full compliance with
international human rights standards.
Komakech H. K25 asserts that While the right to freedom of expression is fundamental, it is
not absolute. A state may, exceptionally, limit the right under Article 19(3) of the ICCPR,
provided that the limitation is; Firstly, provided for by law; any law or regulation must be
formulated with sufficient precision to enable individuals to regulate their conduct
accordingly; Secondly; in pursuit of a legitimate aim; listed exhaustively as respect of the
rights or reputations of others, the protection of national security or of public order (ordure
public); or the protection of public health or morals; and lastly necessary and proportionate in
a democratic society, that is if a less intrusive measure can achieve the same purpose as a
more restrictive one, the least restrictive measure must be applied. Article 9(2) of the African
Charter also reiterates that the right to express and disseminate opinions must be ‘within the
law’. Thus, any limitation imposed by the state on the right to freedom of expression must
conform to the strict requirements of this three-part test. Furthermore, Article 20(2) of the
ICCPR provides that any advocacy of national, racial, or religious hatred that constitutes
incitement to discrimination, hostility, or violence must be prohibited by law. The author
25
Komakech H. K. 2012. The role of the East African Court of Justice in the promotion, protection and
enforcement of human rights in Uganda. 31 October 2012. University of Pretoria.
7
examines the right to freedom of speech and expression which is one of the objectives of this
study. The research report will dedicate a whole chapter to that effect.
Liza Chula26 states that human rights in Africa have gradually gained a place of recognition
few could have foreseen only a decade ago. With the promotion and protection of human
rights entrenched deep in the African Charter on Human and Peoples’ Rights, African states
have a duty to uphold this principle in the larger goal of regional economic integration. The
East African Court of Justice (EACJ), a regional court, has thus assumed the role of a
watchdog in breathing life into these provisions, safeguarding the rule of law and ensuring
everyone plays by the rules. It is unfortunate that these watchdogs can then lack the most
important tool in steering the ship, jurisdiction. This author, through a detailed analysis of
literature review, tackles the pertinent question of whether the court has jurisdiction to handle
human rights cases and arrives at the conclusion that an express mandate is lacking, but there
is a somewhat implied mandate. The study is in agreement with the author but contends
nonetheless, that a clear articulation of the EACJ’s mandate is necessary to enable it to
address issues effectively and efficiently.
Possi A27 observes that the remarkable scope of the EACJ’s human rights jurisprudence
stands in sharp contrast to the institutional weaknesses the Court faces. Regardless of the fact
that the EACJ’s jurisdiction has not yet been extended to include human rights like the right
to freedom of speech and expression, most of the cases the Court has received have pertained
to violations of human rights, and the Court has been more than eager to broaden their
interpretative mandate in a show of judicial activism by masking these violations as the
contravention of a fundamental or operational principle enshrined in Articles 6 and 7 of the
Treaty respectively. These articles envisage good governance including adherence to the
principles of democracy, the rule of law, accountability, transparency, social justice, equal
opportunities, gender equality, as well as the recognition, promotion and protection of human
and peoples’ rights in accordance with the provisions of the African Charter on Human and
Peoples’ Rights’. Therefore, this literature is important to this research report as it points out
one of the ways that the court implements the right to speech and expression which is judicial
activism. This report shall provide more information on the subject.
26
Freedom of Expression Briefing Note Series July 2014.
27
Possi A. 2014. The East African Court of Justice; Towards Effective Protection of Human Rights in The East
African Community. LLD Thesis, University of Pretoria, South Africa.
8
Ruhangisa J. E.28 states that on the flip side of the coin is the argument that procedural
hurdles and technicalities should be eliminated in the implementation of the right to freedom
of speech and expression and human rights as a whole, given their sensitive nature. This
notion was elicited in the case of Michelot Yogogombaye v Republic of Senegal 29 which was
brought before the ACHPR and was dismissed because Senegal had not expressly signed the
declaration accepting the Court’s jurisdiction. However, in a separate opinion,30 Justice
Ouguergouz stressed the idea that procedural matters should not be a bar to the realization of
human rights and that the principle of forum prorogatum should have been applied to this
case. In accordance with this line of thought, the EACJ Rules of Procedure31 were written
with the view of removing many of the procedural technicalities that make litigation in East
African judiciaries complicated, lengthy and expensive. Nonetheless, the Member States tried
to add certain technicalities in accessing the Court in their amendment of the Treaty, such as
the two-month time limit in filing cases, which was meant to serve as a roadblock in the
Court’s already assumed role of protecting human rights across the region. Despite this, the
EACJ proved over and out that it will always be one step ahead by maintaining a purposive
approach to the interpretation of the Treaty and thus manipulating these technicalities to the
aggrieved party’s advantage as seen in the Rugumba case.32
1.9.1 Introduction
This section gives a detailed information concerning the study design, research approach,
sources of information, data collection tools, data analysis and synopsis of the Chapter.
28
Ruhangisa J. E. (former registrar of the EACJ). 2011. The East African Court of Justice: Ten Years of
Operation (paper presented at the Sensitization Workshop on the Role of the EACJ in the EAC Integration,
Kampala 1-2 November 2011).
29
Michelot Yogogombaye v Republic of Senegal, Application No. 1 of 2008.
30
Separate Opinion of Justice Fatsah Ouguergouz, 2008 – http://www.jurisafrica.org/html/pdf_ Accessed on
8/1/2024.
31
The East African Court of Justice Rules of Procedure, 2013 – on 16 February 2017.
32
Plaxeda Rugumba V the Secretary General of the East African Community & Another. Case Number,
Reference No. 8 Of 2010.
9
conditions. The research will involve observations, case studies, cross-sectional studies,
existing recognized literature whether published or unpublished as long as it has been accepted
by the academic for any organization of good reputation among others. The design will be
basically theoretical from secondary data relating to study problem. under investigation.
Limited time to hand in the research will make the researcher rush through the research and in
the process may leave out certain valuable considerations
Limited financial resources yet the topic may require more resources to search for data
33
The Constitution of the Republic of Uganda 1995.
10
1.10 Synopsis of the Chapter
Chapter One: Research proposal/ General Introduction.
Chapter Two: The right to freedom of speech and expression.
Chapter Three: The challenges that the EACJ faces in the implementation of the right to
freedom of speech and expression in East Africa.
Chapter Four: Recommendations, solutions and conclusions.
11
SELECTED BIBILIOGRAPHY
Chibita, M. (2009). The politics of broadcasting, language policy and democracy in Uganda.
Ruhangisa J. E. (former registrar of the EACJ). 2011. The East African Court of Justice: Ten
Years of Operation (paper presented at the Sensitization Workshop on the Role of the EACJ
in the EAC Integration, Kampala 1-2 November 2011).
Gathii J. (2014). Mission Creep or a Search for Relevance: The East African Court of
Justice’s Human Rights Strategy, Duke Journal of Comparative and International Law 24
250.
Possi A. 2016. It’s official: The East African Court of Justice can now adjudicate human
rights cases, Africa Law, 1 February 2016. Available at https://africlaw.com/2016/02/01/its-
official-the-east-africancourt-of-justicecan-now-adjudicate-human-rights-cases Accessed on
8/1/2024.
Odhiambo M., Chitiga R. & Eborah S. 2015. The Civil Society Guide to Regional Economic
Communities in Africa. Open Society Initiative for Eastern Africa.
Mathieson, C. 2016. The Political Economy of Regional Integration in Africa: The East
African Community (EAC). European Centre for development Policy Management.
Michael, D. I. 2017. UN urges Burundi to reverse ban on oldest human rights group, 6
January 2017. http://www.africanews.com/2017/01/06/un-urges-burundi-to-reverse-ban-on-
oldest-human-rights-group/ Accessed on 8/1/2024.
Alter K.J, Gathii J. & Helfer L.R. 2016. ‘Backlash Against International Courts in West, East
and Southern Africa: Causes and Consequences’ The European Journal of international Law,
27(2): 293- 328.
9
East African Court of Justice. 2010. Strategic Document 2010-2015. April 2010.
http://eacj.org/2014/docs/EDITED%20FINAL%20COPY%20.pdf Accessed on 8/1/2024.
1
Ruhangisa J. E. (former registrar of the EACJ). 2011. The East African Court of Justice: Ten
Years of Operation (paper presented at the Sensitization Workshop on the Role of the EACJ
in the EAC Integration, Kampala 1-2 November 2011). note 33
East African Judges and Magistrates Association. 2010. Conference on Human Rights in East
Africa, EAJMA News, Issue No. 1 of 2010, May 2010.
http://www.eamja.org/eamja_news_letter.pdf. Accessed on 8/1/2024.
Freedom of Expression and the Digital Environment in Eastern Africa, Monitoring report
January–December 2020.
Komakech H. K. 2012. The role of the East African Court of Justice in the promotion,
protection and enforcement of human rights in Uganda. 31 October 2012. University of
Pretoria.
Possi A. 2014. The East African Court of Justice; Towards Effective Protection of Human
Rights in The East African Community. LLD Thesis, University of Pretoria, South Africa.
10