MZUMBE UNIVERSITY

FACULTY OF LAW

RESERCH REPORT
ON
THE TENURE AND POWERS OF EAST AFRICA COURT OF JUSTICE
JUDGES IN RELATION TO INDEPENDENCE OF JUDICIARY: LESSON
FROM COURT OF JUSTICE EUROPEAN UNION

BY
SARAH MWAKIMI
REG: 1236098/T.21

SUPERVISOR: DR MNYASENGA

A COMPULSORY RESEARCH REPORT SUBMMITED IN PARTIAL

FULFILMENT OF THE REQUIREMENTS FOR THE AWARD OF THE
BACHELOR OF LAWS (L.L.B) DEGREE OF THE MZUMBE UNIVERSITY
2024
 CERTIFICATION

The undersigned certifies that she has read and hereby recommends for acceptance
by the Mzumbe University a dissertation titled: “Tenure and Powers of EACJ
Judges in Relation to independence of Judiciary; Lesson from CJEU ” in partial
fulfillment of the requirements for the degree of Bachelor of Laws of the Mzumbe
University.

Name of the Supervisor: Dr. Mnyasenga

Signature: ...

Date: / /

i
 DECLARATION

I SARAH E. MWAKIMI, do here to declare that this Dissertation is my original

work and that it has not been presented and will not be presented to any other
University for a similar or any other degree award.

Signature:

Date: .

ii
 COPYRIGHT

This dissertation is a copyright material protected under the Benne Convention for
the protection of Literary and Artistic Works (1886), the Copyright and Neighboring
Rights Act (CAP 218, R.E 2002) and any other International and National enactment
in that behalf, on Intellectual Property. No part of this Dissertation may be
reproduced, stored in any retrieval system, or transmitted in any form or by any
means without prior written permission of the author or Mzumbe University. If
transformed for publication in any other format shall be acknowledged that this work
has been submitted for degree award at Mzumbe University.

iii
 ACKNOWLEDGEMENT

Writing an LLB dissertation is not an individual effort. One needs lots of support,
guidance and personal mental strength to accomplish such demanding endeavor. If I
mention all individuals who supported me, the space will not be enough since the list
is endless. First and foremost, I am so grateful to the Almighty God the supreme I
adore who tender mercy and gracious favor has, in various ways made this work
possible, and give me strength that kept me going during my three academic years.
His grace and the endless blessing gave me good health and strength which have
helped me succeed in this desertion.

Second, I sincerely express my deepest gratitude to my supervisor DR.

MNYASENGA, for his intellectual advises, guidance, cooperation, encouragement
and constructive criticisms, that has mould this work to be the way it is. It goes
without saying that he is may academic role model, my Almighty God bless you.

I extend my sincerely gratitude to thank may beloved parents Mr and Mrs

Emmanuel Mwakimi, my sister Huruma Kassebele, my Brother Wilson Mwakimi,
Twin sister Ester Mwakimi, my young Sister Loveness Mwakimi and lastly my
friend Hosea Wajanga for their immeasurable love, care and support has made me to
be who I am today.

Furthermore, I would like to acknowledge all my classmates, LLB Mmzumbe

University main Campus, for Academic years of 2021/2024 I thank them for their
cooperation which has helped me to reach my success.

Lastly, even the Space run out, I cannot afford to not thank my best friends as they
have been giving me a comfort and advice and courage, I real appreciate their
contributions and I wish them a successful life.

Above all things, I wish to say, MAY ALMIGHT GOD IN HEAVEN BLESS YOU
ALL

iv
 DEDICATION

I dedicate this work to may Heavenly Father who give me the ability to do
everything through his strength and willingness, I also dedicate this work to my be
loving and caring parent Mr. and Mrs. Emmanuel Mwakimi, as I have achieved my
success behind their care, love, courage and prayers, what they are doing indeed
make me prosper in my life and made me to believe that knowledge is power.

v
 ABSTRACT

This dissertation examines the tenure and power of EACJ judges in relation to the
independence of judiciary. Tenure of judges is the most core important element of
independence of judiciary in a democratic society. The tenure and powers of judges
is recognized in various international instruments and standards in order to guarantee
independence of the court. This raised concern that the tenure of judges of EACJ is
apparently does not make the court to be independent because if judge have short
terms or are subjected to frequent reappointments, it may create the situation where
they may feel pressured to rule in favor of certain interests or individuals. Long and
stable tenures, on other hand can help ensure that they can make impartial decisions
based solely on the law, without any external influence. Tenure of judges can
definitely impact the independence of the court important to have a system that
ensures impartiality and prevents any undue influence.

The findings of this study show that the tenure and power of judges of EACJ is not
effectively protected. This is due to the fact that the court has been receiving lot of
intimidation, unknown procedure of appointing judges, arbitrary remove of judges
from office which undermine the independent of the court. Also judges work on ad
hoc basis and lack of enforcement mechanism which is against the requirement of the
independence of judiciary.

Tenure of EACJ judges under the treaty is too short which some time affect the
performance of the court in dispensation of justice. The power of judge under the
treaty is not clearly articulated that means at any time if the court act against or
contrary to the interest of the partner states, their power may be taken back by
partner states. This is contrary to some practice of developed court like CJEU. Not
only that, the EACJ is experiencing with lot of challenges which brought into
question its independence.

The dissertation recommends that, the treaty establishing the East African
Community be amended to accommodate fully the EACJ. That tenure of judges and
powers be clearly stated, and procedure for appointing judges and ground for
removing judges should be clearly established at the community level.

vi
 LIST OF ABRIVIATIONS

AG Attorney General

CJEU Court of Justice of European Union

EAC East Africa Community

EACJ East Africa Court of Justice

EACJLR East Africa Court of Justice Law Report

EALA East Africa Legislative Assembly

EU European Union

IBID Ibidem

ICCPR International Covenant on Civil and Political Rights

ICESCR International Covenant on Economic, Social, Culture and Regional

UDHR Universal Declaration of Human Rights

vii
 TABLE OF CONTENTS

CERTIFICATION.......................................................................................................i
DECLARATION........................................................................................................ii
COPYRIGHT............................................................................................................iii
ACKNOWLEDGEMENT........................................................................................iv
DEDICATION............................................................................................................v
ABSTRACT...............................................................................................................vi
LIST OF ABRIVIATIONS......................................................................................vii

CHAPTER ONE.........................................................................................................1
GENERAL INTRODUCTION..................................................................................1
1.0 Introduction.............................................................................................................1
1.1 Background of the Problem....................................................................................2
1.2 Statement of the Problem........................................................................................4
1.3 Research Objectives................................................................................................5
1.3.1General Objective.................................................................................................5
1.3.2 Specific Objectives..............................................................................................5
1.4 Research Hypothesis...............................................................................................5
1.5 Significances of the Study......................................................................................6
1.6 Literature Review...................................................................................................6
1.7 Research Methodology...........................................................................................9
1.7.1 Research Design and Approach...........................................................................9
1.7.2 Type of the Study.................................................................................................9
1.7.3 Scope of the Area of the Study............................................................................9
1.7.4 Sampling Design and Sample Size....................................................................10
1.7.4.1 Sample Technique..........................................................................................10
1.7.4.2 Sample Size....................................................................................................10
1.7.5 Methods of Data Collections.............................................................................10
1.7.5.1 Primary Data Collection.................................................................................10
1.7.5.2 Secondary Data Collection.............................................................................11
1.7.6 Scope of Study...................................................................................................12
1.8 Delimitation of the Study......................................................................................12

viii
CHAPTER TWO......................................................................................................13
CONCEPTUAL OF THE TENURE AND POWER OF EACJ JUDGES IN
RELATION TO INDEPENDENCE OF JUDICIARY.........................................13
2.0 Introduction...........................................................................................................13
2.1 Definition of key terms.........................................................................................13
2.1.1 Judicial Tenure...................................................................................................13
2.1.2 Independence of Judiciary.................................................................................14
2.1.3 Power of Judges.................................................................................................15
2.1.4 The East African Court of Justice......................................................................15
2.1.5 Accessibility of the EACJ..................................................................................16
2.1.6 Court of Justice of European Union..................................................................18
2.1.7 The Summit.......................................................................................................18
2.1.8 The Council.......................................................................................................19

CHAPTER THREE..................................................................................................21
THE LEGAL FRAMEWORK OF THE TANURE AND POWER OF JUDGES
OF THE EACJ..........................................................................................................21
3.0 Introduction...........................................................................................................21
3.1 The Legal Framework...........................................................................................21
3.1.1 Regional Instruments.........................................................................................21
3.1.1.1 The treaty for the Establishment of the East African Community 2000........21
3.1.1.2 The African Charter on Human and Peoples’ Rights 1986.............................22
3.1.2 International Instruments...................................................................................23
3.1.2.1 The Universal Declaration of Human rights 1948..........................................23
3.1.2.2 The United Nations Basic Principles on the Independence of the Judiciary. .24
3.1.2.3 International Bar Association’s Minimum Standards of Judicial Independence
.........................................................................................................................24
3.1.2.4 International Covenant on Civil and Political Rights.....................................25
3.1.2.5 International bar Association Minimum Standards of Judicial Independence
(adopted 1982)................................................................................................26
3.1.2.6 Basic Principles on the Independence of the Judiciary1985...........................26

ix
CHAPTER FOUR....................................................................................................27
RESEARCH FINDINGS..........................................................................................27
4.0 Introduction...........................................................................................................27
4.1 Research findings..................................................................................................27
4.2 Modes of Appointment of Judges of the East African Court of justice................27
4.3 Tenure of Judges of the East African Court of Justice.........................................29
4.4 Removal of Judges of the East Africa Court of Justice........................................30
4.4.1 The Effects of Tenure and power of EACJ judges in relation to Independence
of Judiciary..........................................................................................................31
4.4.2 Influence of Political Power..............................................................................31
4.5 The Legal and Practical Challenges Caused by Non Renewable Tenure And
Limited Power Of Judges In Dispensation Of Justice.........................................32
4.5.1 Delay of Justice..................................................................................................32
4.5.2 Increase of Backlogs of Cases...........................................................................32
4.5.3 Loose of Expertise and Experienced Judges.....................................................33
4.6 Challenges Caused by Limited Power of EACJ Judges in Dispensation of Justice
.............................................................................................................................33
4.6.1 Slow down the court role toward integration process.......................................33
4.6.2 Underutilization of the Court Service................................................................34
4.7 Impact of the Length of the Tenure of Judges to the Performance of the Court. .34
4.7.1 Experience and Expertise..................................................................................34
4.7.2 Stability and Continuity.....................................................................................35
4.7.3 Judicial Independence........................................................................................35
4.7.4 Consistence and Predictability...........................................................................36
4.8 Legal Challenge facing the East Africa Court of Justice......................................36
4.8.1 Giving National Court an Opportunity to Interpret the EAC Law....................36
4.8.2 Establishment of Parallel Body to Solve Disputes with the same Mandate with
EACJ.................................................................................................................37
4.8.3 Ad hoc Nature of the Work of the Court Judges...............................................37
4.8.4 Absence of Enforcement Mechanism of the Court Decision............................38
4.9 Practical Challenge Facing the East Africa Court of Justice................................38

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4.9.1 Unwillingness of the Member state to appreciate the Decision of the Court....38
4.10 Experience from the CJEU.................................................................................40

CHAPTER FIVE......................................................................................................42
CONLUSION AND RECOMMENDATIONS.......................................................42
5.1 Conclusion............................................................................................................42
5.2 Recommendations.................................................................................................44
5.2.1 Mode of appointment of judges should be clearly articulated...........................44
5.2.2 Tenure of EACJ judges should be revisited......................................................45
5.2.3 Grounds for removal of judges should be clearly articulated............................45

REFERENCES.........................................................................................................46

xi
 CHAPTER ONE

GENERAL INTRODUCTION

1.0 Introduction
In East Africa court of Justice the issue of Tenure and power of judges are important
for maintaining independence of judiciary, judges of EACJ are appointed for a
specific term which help the to ensure impartiality and freedom from external
influence this allows them to make decision based on the law and their own
judgment without worrying about potential consequences or pressure from outside
source1. The judges have authority to interpret and apply the law resolving dispute
upholding the rule of law and protecting individual’s right. Their power allows them
to make decision based on legal principles and their understanding of the case at
hand. Moreover, the tenure and power of EACJ contribute independence of judiciary,
ensuring that they can carry out their duties without interference and make impartial
decisions in the pursuit of justice. The tenure of judges is an important facet of
judicial independence which determines the competence of judges in dispensation
justice. The time of holding office for judges of EACJ is provided under the Treaty
for the Establishment of the East African community in which judges ’ work on ad
hoc basis and serves for seven (7) year non-renewable tenure2.

The East Africa court of justice EACJ the court can trace it roots to the court of
appeal of Eastern Africa which was established in 1909. The territorial jurisdiction
then covered Adwn, Kenya, Seychelles, Somalia, Tanganyika, Uganda, and
Zanzibar. In the course of Time only four countries remained, namely Kenya
Tanganyika, Uganda and Zanzibar and the court renamed the court of appeal for East
Africa. With the Collapse in 1977 of the East Africa Community the said court
ceased to exist. EACJ Is an international court tasked with resolving disputes
involving the East Africa community and its member states. And it was established
by Article 9 of the Treaty for the Establishment of the East African Community.
And it charged with interpreting and enforcing the treaty which come into force on

1
Gathii, J. T, The East African Court of justice, A comparate study of Institutional Design and
Impact
2
Treaty for the Establishment of the East African Community (n 6) art 25.

1
July 7th, 2000 and the court it does not have competence to hear individual
complaints of alleged violations of human rights law. Such us The EACJ is based in
Arusha, Tanzania. And dispute the EACJ’s lack of explicit jurisdiction to hear human
rights cases it has addressed cases of Katabazi v secretary General of the East
African Community the EACJ conceded that jurisdiction with respect to human
rights requires a determination of the council and a conclusion of a protocol to that
effect. Both of those protocol to the effect

The court was created by the Treaty by the Establishment of East Africa community
and it was inaugural on the 30th november2001

1.1 Background of the Problem

Tenure of judges is the most core important element of independence of judiciary,
which determines the competence of judges in dispensation justice. Judicial tenure
and power of judges can be traced back in Seventeenth Century (17 thC) in England.
Judges were commonly removed or suspended after deciding case in the manner that
shocked the king who appointed them. During that time the king was the appointing
authority and could not do wrong, deciding case contrary to the will and demand of
the king was among the reason for suspension of judges or transferred to another
position3. However, since the system of government have revolved to give further
protection to judicial officers, by embodying security of tenure of judges through the
doctrine of independence of judiciary. The very influential Belgian Constitution of
1831 directed that judges are appointed for life. No judge may be deprived of his
office nor suspended except by a judgment.

After constitutionalism spread to Eastern Europe, Latin America, Middle East and
Eastern Asia, a number of provisions were enshrined in their constitutions, in order
to guarantee permanent tenure of judges. The essence of that is to protect them
against arbitrary dismissal. Following the rise democracy in the world a number of
international standards were given out to ensure protection of judges. They include
provisions concerning judicial removal, dismissal, immunity, appointment comply

3
Opeskin B, ‘Modelsof Judicial Tenure: Reconsidering life limits, Ages Limits and Term Limits for
Judges’ British Journal of Law and Society 83.

2
with the international standards4. These standards were provided in the United
Nations Basic Principles on the Independence of the Judiciary which provide that,
the tenure of office of judges, their independence, conditions of work, and the age of
withdrawal shall be adequately fixed by law. Judge shall have guaranteed term until
an obligatory age of retirement5. Moreover, the International Bar Association’s
Minimum Standard of Judicial Independence also provides that, judicial appointment
should be for life. However, the removal is subjected upon to a valid reason and
compulsory retirement at an age fixed by law6.

Moreover, the European Union has established the CJEU in 1952, as the apex court
of the European Union. This court outranking national supreme courts whereas, all
Judges of CJEU are appointed for a term of six-year (renewable) terms 7. Regarding
the tenure and power of judges in CJEU is highly guaranteed as the judges ’ work for
renewable period and absence of ad hoc service of judges. Also, the operation of the
court guaranteed permanent seat of the judges in which judges become more
competent and independent in dispensation of justice.

EAC like any other regional organizations it has established the EACJ as the judicial
organ established under the Treaty for the Establishment of the East African
Community.8 The court was inaugurated on 30 th of November 2001. As a judicial
organ of the EAC, the EACJ replaces the former East African Court of Appeal
(EACA) that was operational under the former EAC of 1967. EACJ composed of 11
judges appointed by the Summit of the head of the state from each of the six partner
states by then, now 7 partner states following the addition of DRC Congo, did not
affect the composition of the court. The judges of EACJ work on ad hoc basis and
have a seven-year non-renewable tenure which affects the competence of the court in
dispensation of justice.9
4
Bulmer E, Judicial Tenure, Removal, Immunity and Accountability, (2rdedn) (International IDEA,
2017) 6.
5
United Nations Basic Principles on the Independence of the Judiciary (adopted 06 September 1985
UNGA Res 40/32) principle 11.
6
International Bar Association’s Minimum Standards of Judicial Independence (adopted 1982) art 2.
7
Treaty on European Union, 1992 art 13.
8
Treaty for the Establishment of the East African Community (adopted 30 November 1999, entered
into force 07 July 2000) art 9.
9
Treaty for the Establishment of the East African Community (adopted 30 November 1999, entered
into force 07 July 2000) art 25.

3
Despite of all legal and international instruments which guarantee protection of
tenure of judges but still tenure and power of judges of EACJ are not guaranteed as
the international standard prefer. Yet judges still work on ad hoc basis, non-
renewable tenure, lack of permanent seat of the judges and arbitrary removal in their
office by the appointing authority. Absence of clear uniform procedures at
community level for appointing judges it appears from the fore going interventions
that the tenure for EACJ judges is seriously put at risk by creation of automatic
removal and suspension of judges. All this deter the competence of the court in
dispensation of justice and undermine its independence.

1.2 Statement of the Problem

The tenure and power of judges is recognized in various international instruments
and standards. All international standards prefer that there should be clear procedure
of appointing judges. However their removal is subjected to valid reasons and lawful
procedures. Legally speaking, life tenure or long term of office will tend to promote
competence to the judges and expedition of justice.

Despite of the legal and international instruments addressing the protection of the
tenure of judges. The EAC treaty makes no specific mention of the EACJ status of
independence. Yet the tenure and powers of judges under EACJ are not guaranteed
and addressed as international instruments prefer. The court has so far proved to be
autonomous and neutral institution but indeed it has receiving indirect treats while
performing its moral task as the palace of justice and fairness 10. The court is slowly
becoming a learning institution for judges to acquire and gain experience with the
aim of preparing them to be knowledge but before they can deliver their tenure
become to an end.11

Lack of permanent tenure to judges of the EACJ undermines the effectiveness of the
court in dispersion of justice in the community. In this Oliver Wendell Holmes

10
Ruhangisa JE,” Role of the East Africa Court of Justice in Realization of common Market and the
Customs Union’ A paper presented during the inter-parliamentary Relations seminar (nyanyuki-v-)
(Bujumbura,2010)6
11
Nsekela H R, ’Overview of the East Africa Court of Justice ‘ a paper presented during the
sensitization Workshop on the Role of East Africa Court of Justice in EAST African community
integration (Kampala,2011)4

4
argued that ‘the life of law has not been logic‘ it has been experience12 this indicates
that when judges hold office for the long period it is where the judges become more
competent in solving different matters within the community. Therefore absence of
security tenure, short tenure and arbitrary removal of the judges of EACJ had
increased enormously causing a backlog and delays of cases. Example court
proceedings have been suspended since November 2020 until 2021 following seven
(7) judges out of 11 completing their term of office. Generally these problems
prompted a researcher to call into a tax to examine the tenure and powers of EACJ
judges in relation to independence of judiciary.

1.3 Research Objectives

1.3.1General Objective
The main objective of this study is to examine the effects of tenure and powers of
EACJ judges in relation to independence of judiciary.

1.3.2 Specific Objectives

i. To examine legal and practical challenges caused by non-renewable tenure
and limited power of judges in dispensation of justice.
ii. To offer the optimal solutions and recommendations which might be adopted
under the treaty to ensure permanent tenure and power for EACJ judges.

1.4 Research Hypothesis

This study is based on assumption that tenure and power of judges of EACJ
adversely affects the dispensation of justice within the community and undermine the
principle of independence of judiciary.

1.5 Significances of the Study

The following are the significances of this study;

i. This study is more fruitful in the process of adopting legal reforms within the
community. Also the study provides for the recommendations that influence
the partner states to adopt changes in the treaty in order to offer adequate
tenure and powers for EACJ Judges and to improve the practice of the EACJ
in general.
12
Holmes, O. W. The Common law (Litle, Brown and Company 1881)

5
 ii. This study adds knowledge on the understanding of the role of EACJ in
integration process.

1.6 Literature Review

In this study I would like to use both domestic and international instruments where
by many writers and author commented as follows.

Majamba and others13 the authors in their book tried to discuss the challenges
facing the EACJ, specifically working of the court on an ad hoc basic. Also, they
went further to explain the establishment of quasi-judicial body within the
community with the same mandate with EACJ as the community court. Hence
challenging the work of the court and the consequently undermine the EAC
integration process.

However, they failed to portray on how the challenges facing the court affect the
power of judges in dispensation of justice. Also, they have failed to show the status
of independence of the EAC of justice. The researcher in the present work will go
further in looking on how the challenges facing the EACJ undermine the power and
tenure of judges in dispassion of justice and to propose the best mode of tenure for
judges. Also, the researcher will go deep to show the status of the independence of
the judges of the EACJ

Apiko14. Also has explained on some challenges hampering the EACJ which include
the ad hoc nature of the court which affects its ability to effectively dispose of the
cases. Apiko argued that most of the judges also serve as judges in their national
court; it is problematic to compose a panel of judges with double task in both their
national court and in EACJ which impacts on the court ability to dispense justice.

This article is crucial and relevant to the present study as it provides foundation basis
on understanding challenges facing the EACJ toward integration process. His writing
helps to build fundamental knowledge and awareness on what is going on in EACJ.

13
Majamba and others, Hamonisation of Laws in East African Community (Law Africa publishing (k)
ltd 2018)77.
14
Apilo B, understanding the East A frica court of justice; the hard road to independent institutions
and human rights jurisdiction(PEDRO, 2017)7

6
However the author did not explain how ad hoc nature of service of judge can be
resolved in community. Also he has failed to exhaust more on how ad hoc service
affects the power and tenure of judges in dispensing of justice in the community.
Hence this research paper will address said loopholes.

Nsekela15 has discussed several aspects on the role of EACJ in integration process.
Further the author explain that the court has so far proved to be an independent and
impartial body, indeed some of the judge’s decision have not been well received by
the very top leadership of the community. Author also explained that it appears from
intervention by the summit that the security of the tenure for EACJ judges was
seriously put at risk. This article is relevant to this study as it is giving the outline
about structure, power and mode of operation of EACJ in integration process.

However, the author did not explain how the power and tenure for EACJ judges can
be protected after appointment by the summit. Furthermore the author did not explain
on the relevant mechanism of securing tenure for EACJ judges. This researcher paper
will point out the role and power of EACJ judges in the dispention of justice but also
on how the tenures of judges affect the court in performance of its noble duty. Also,
the researcher will go further to explain how the mode of appointment and removal
of judges undermine the independence of the court.

Ssemmanda16 in his book has focused primarily on the power and functions of the
EACJ in adherence of the community law toward integration process. Further the
author explained on the power of EACJ in entertaining human right case as the
questionable new aspect in the community. Consequently, the author spoke about
mode of operation of the EACJ, criteria for appointment of judges, removal and the
tenure for EACJ Judges.

His work is really good; however, he has not shown the best mode of tenure in which
judge is obliged to serve. Also, he has failed to point out the negative impact of non-
renewable tenure for judges in relation to independence of judiciary. Hence, the
15
Nsekela HR The Role of the east Africa Court Of Justice in the Integration Process ’ A paper
presented during the sensitization workshop on the role Of East Africa Court Of Justice In The East
Africa Community Integration(Kampala,2009).
16
Ssemmanda, E. S. Regional Integration Law in the East African Community and European Union
(Centre for Law Economics and Policy on East African International 2018)37-79.

7
research seeks to cover on the impact of non-renewable tenure for judges in
dispensation of justice, also to discuss the length of tenure to the performance of the
court.

Ugirashebuja et al17 in their book they discussed an overview of the EACJ,

particularly on jurisdiction that the court’s jurisdiction is limited to insuring
adherence to law in the interpretation and application of treaty law. The authors
continued to state that the power of EACJ has been ousted by national court that
notwithstanding its broad jurisdiction. Also, they argued that establishment of
Parallel EAC Dispute Resolution Mechanism in the community with the same
mandate as the EACJ, has oust the power of EACJ as the main judicial organ in the
community.

This book is relevant to the present study as it explains the way national courts oust
jurisdiction of the EACJ. However, the authors have failed to exhaust more on how
national courts and other institutions to handle the same matter as EACJ, affect the
court in dispensation of justice. Furthermore, authors have failed to dig up how
limited jurisdiction of the court undermines the independence of the court. This
research paper will figure out the impact of limited jurisdiction to EACJ toward
dispensation of justice

1.7 Research Methodology

This research study is qualitative research. This means, what methods the researcher
has employed and how such methods guarantee the authenticity of data collected.
Therefore, this research is of synthesis in nature where the researcher has studied
number of articles, laws, books and cases. The study examines the tenure and power
of EACJ judges in relation to the independence of judiciary is a concept thus makes
it a qualitative research.

1.7.1 Research Design and Approach

This study is designed to take a case study design; the study is brief overview of the
tenure and power of EACJ in relation to independence of judiciary where by the

17
Ugirashebuja E and others, East African Community Law: Institutional, substantive and
comparative EU Aspects (Brill 2017) 63-66.

8
independence of judiciary it this will protect and promote the analysis of law will be
made so as to enable a research to make a generalization of findings18

1.7.2 Type of the Study

A researcher will use different types of research which is doctrinal research and
empirical research, where the researcher involves the Doctrinal Research because it
is a research into legal rules, principles, concepts or doctrine

1.7.3 Scope of the Area of the Study

This study is based at Morogoro and Mbeya regions. The researcher selected the
same due to easily collection of data while the researcher is conducting field training
at Mbeya region. Also the researchers used to select those regions because of easily
collection of data as the researcher reside on the said regions. Also The researcher
has visited some important areas such court of law and law firm for purpose of
collecting first-hand information. The researcher used different tools to collect data
from the field as the primary data. The research used tools such interview and
question to obtain the information from the field.

18
C R Kathary, Research Methodology Methods and Techniques

9
1.7.4 Sampling Design and Sample Size
This study contain the sampling technique and the sample size

1.7.4.1 Sample Technique

The research employed systematic sampling technique to obtain sample size for the
study. Nature of study itself required respondents with knowledge of Community law
and the practice of the EACJ. Hence triggered the researcher to consult only
respondents with knowledge of law.

1.7.4.2 Sample Size

The research population to constitute a sample is very huge and targeted to the
people who have knowledge with legal issues of EACJ and used to select sample size
of 20 respondents from the population to gather information on the study at hand.
Which are 5 Advocates, 3 Magistrates, 7 legal student, and 5others the rest people
which have the knowledge with the study at hand and law fractioners. Therefore
Nature of the study forced the researcher to select few individuals who are
knowledgeable with the topic at hand.

1.7.5 Methods of Data Collections

The researcher employed method of data collection that is in consonance with the
nature of the study. The primary data collection and secondary Data collection
were employed by the researcher to obtain information from the field setting,
includes the following;

1.7.5.1 Primary Data Collection

The primary data that was used by the researcher was interview where by the data are
retrieved from direct from the key information in data collections to obtain more data
and also researcher collect data by way of questioner,

Interview

The researcher employed both structure and unstructured interview to collect

information from respondents who were knowledgeable to the topic at hand. Where
the researcher interviewed one official of the EACJ, Advocates, Magistrate, legal
students and other legal practitioners.

10
 Questioner

This is a list of questions or items used to collect data from the respondents about
their attitudes, experiences or opinions about the particular problem 19. In this method
the researcher normally prepares a series or set of questions and sends to the
respondents and the respondents were required to respond to the questions by writing
the answers and returning to the researcher. In this method the researcher used both
the open-ended and closed ended questionnaire where by the respondents were able
to give out their views on the problem through attempting the questions

1.7.5.2 Secondary Data Collection

Documentary Research

The researcher has analyzed different documents relevant to the study; different
treaties, regulations and policy direction are used as primary source for the study.
Also, different journal articles, publications, books, reports of reputable personnel
judicial decision are used as secondary source. Also the researcher used the valuable
of the Mzumbe University library to find different materials which it can help in this
study.

Websites

The research has not ignored the significance of technology in conducting this
research. Here the researcher used mobile phone and computers to search different
information on internet. This includes online articles, books and report relevant to the
research topic. This enabled the researcher to collect sufficient data necessary to
answer the hypothesis of the research.

19
Bhandari P,’ Questionnaire Design Method and Types’< https://www.scribbr.com>methodology>
questionaire> accessed 12 Oct 2023

11
1.7.6 Scope of Study
The study focused on examination of tenure and powers for EACJ Judges in relation
to the dispensation of justice within the community. The researcher has analyses both
international instruments and the EAC treaty in promoting tenure and powers for
EAC Judges. The same the researcher has analyzed the implication of such tenure
and power in relation to the dispensation of justice. Also, the researcher used to
cover the mode of operation of the EACJ, modes of appointment of judges and
grounds of removing judges from office. Also, experience from CJEU the researcher
has explored on the same. Furthermore, the researcher used to analyze factors that
undermine that independence of the EACJ.

1.8 Delimitation of the Study

A researcher in writing this research faced with some challenges such as, shortage of
funds, this triggered the researcher to fails to attend in some crucial area like to
attend EACJ court premise at Arusha. This is because a researcher needed money to
cover transport fare, printing different document as well as access sold relevant
materials in the internet.

Shortage of time was a great challenge because the research was to be written even
when the normal studies are proceeding. Also, fake promise of the respondents, some
of the respondents were reluctant to offer cooperation as their made endless promise
which hampered the research to collect data on time.

Lastly, lack of awareness to the respondents on the study at hand, since some
respondents are unaware on the practice of the EACJ hence required longer time to
pass through the same, making the process of data collection to be hard.

12
 CHAPTER TWO

CONCEPTUAL OF THE TENURE AND POWER OF EACJ JUDGES IN

RELATION TO INDEPENDENCE OF JUDICIARY

2.0 Introduction
This chapter covers on the conceptual and legal framework which focuses on the
position of law, regional law and international instruments pertaining to tenure and
power of EACJ judges in relation to independence of judiciary and It also detail to
show on how these laws have addressed the matter and also describes into detail
different concepts relating to the same study at hand.

2.1 Definition of key terms

2.1.1 Judicial Tenure
Judicial tenure means the term or time of holding of an office. The tenure of judges is
an important fact of judicial independence which determines the competence of
judges in dispensation justice. The time of holding office for judges of EACJ is
provided under the Treaty for the Establishment of the East African community in
which judges work on ad hoc basis and serve for seven (7) year non-renewable
tenure20. At this juncture judges may be appointed for life or until mandatory age of
retirement as well as for limited term of office 21. Therefore, life tenure promotes and
in compatible with the doctrine of independence of judiciary.

Moreover, there are three models of judicial tenure namely; life limit, age limit and
terms limit. This can be explained herein below

Life limit tenure; under this category judges are appointed for life or until death 22.
Therefore, the judges hold the office until he or she die. Life limit tenure does not
mean that judges cannot be removed; they can be removed subject to good cause 23.
Generally, the life limit tenure of judges varies depending on the country and its legal
system.

20
Treaty for the Establishment of the East African Community (n 6) art 25.
21
Basic Principle of independence of Judiciary (n 3)
22
International Bar Association’s Minimum Standard of Judicial Independence (n 4).
23
Latimer House Guidance on Parliamentary Supremacy and judicial Independence, 1998 art 22.

13
Age limit tenure; under this category judges hold the office until he or she reach
mandatory age fixe by law. It’s the law that dictates the judges to vacate the office
upon reaching a compulsory age of retirement fixed by the law 24. Also, this varies
from one country to another depend on the nature of law of a particular state and its
legal system. Example under the treaty for the establishment of East African
Community judge’s mandatory age of retirement is when the judges attain 70 years
old.25

Term limit tenure; under this category judges hold the office for fixed period of time
set out by law. Under this term limit tenure, it can be renewable term or non-
renewable term. Hence upon expiration of the term then, judges vacate the office.
Fixed term normally it is common to regional court or international tribunal where
the position of judges is hold by rotation. For example, under the EACJ judges hold
the office for seven non-renewable tenure, in the CJEU judges are appointed for
6years renewable terms26.

Furthermore, security of tenure is an important facet of the independence of the court

and performance of the same. This is to say judges should have assurance on the
term of service and protection of his office, from arbitrary removal and suspension.
Therefore, it is submitted that security of tenure in this regard the term of office of
the judges is limited, whether it is until the mandatory age of retirement or for life.

2.1.2 Independence of Judiciary

Independence of judiciary is the principle that ensures the judiciary is free from
external influences, allowing judges to make impartial and fair decision. It surferguds
the integrity and impartiality of the judicial system 27it describes the freedom of the
judicial organ to exercise its judicial power of dispensing justice. This mean that,
once the court is exercising its judicial function as a temple of justice is free from
any external pressure28. Independence of judicial form a fundamental pillar in the

24
Latimer House Guidance on Parliamentary Supremacy and judicial Independence, 1998 art 22.
25
Treaty for the Establishment of East African Community (n 6)art 25(2).
26
Treaty on the Functioning of the European Union (adopted 25 March 1957, entered into force 01
January 1958) art 254.
27
Black’s law Dictionary 8th Ed 1990
28
Shivji I G and others, Constitutional and Legal System of Tanzania (Mkuki na Nyoka Publishers
limited 2004) 43.

14
separation of power and rule of law. In order for the court to be trusted by the people
it should be independent so that can perform its duty judiciously without fear and
favor. In this context independence of judiciary judges are guided on their knowledge
of law and facts of the case in decision making29.

Furthermore, independence of judiciary is wide it encompasses and mirrored in the

matter such as security of tenure of judges, remunerations, appointment, terms of
service and removal. In the context of the EACJ some provisions in the EAC Treaty
tried to guarantee the independence of the EACJ judges. However, the Treaty makes
no any speculation of the EACJ status of independence of judiciary. Furthermore, the
independence of judiciary it can be seen on personal or individual independence and
collective independence. Generally, independence of judiciary requires the function
of judges in interpreting and applying law should be free from any external pressure
and influence.

2.1.3 Power of Judges

It includes ability of the judges to make decision and interpretation of law. For the
purpose of the EACJ judges is vested with power to hear and determine cases
relating to the interpretation and application of the EAC Treaty. Also to deal with
cases that emanate under other protocols and agreements that are adopted by the
EAC30.Under the treaty judges has power to issue order, injunctions and other forms
of relief to ensure compliance with its decision.

2.1.4 The East African Court of Justice

The EACJ is the Apex judicial body of the community mandated with administration
of justice within the community31.The court was established in November 30 after
the first judges of the court to be appointed by the summit. The court is mandated to
ensure adherence to the law in the interpretation and application of the EAC treaty 32.

29
UN Basic Principles on the Independence of the Judiciary (n 3) principle 2.
30
Treaty for the establishment of the East African Community (n 6) art 23(1)
31
The East African Court of justice launched in 30 th November 2001.The Seat of the court is
temporary reside in Arusha Tanzania until the summit determines a permanent seat for the court.
The court has 2 divisions, the First Instance division and the Appellate Division. It is first case heard
in 2005 and finalized it on 2006 was the case of Andrew Calist Mwatela v EACSee Possi A, ‘An
Appraisal of the Functioning and Effectiveness of the EACJ ’ ( 2018)
7<http://dx.doi.org/10.17159/17273781 /2018/v21i0a2311> accessed 5th January 2024.
32
Treaty for the Establishment of the EAC treaty (n 6) art23.

15
The EACJ has jurisdiction to hear and determine disputes arising from community as
well as disputes between the EAC and its member ’s state or between member states
themselves. Similarly, the court has jurisdiction to issue advisory opinion whenever
it is requested to do so33.

Moreover, the EACJ is divided into two chambers, the First Instance Division which
is headed by the principal judges appointed by the Summit. Lastly, the Appellate
Division which is head by the president and vice president respectively 34.
Consequently, the Appellate Division was the result of the 2007 Amendment of the
EAC treaty following the decision in Anyang Nyongo’o case 35. Previously before the
2007 amendment there was only a single chamber of the court the First Instance
Division in the original EAC treaty. Appeal from the first instance Division to the
Appellate Division lies on points of law, grounds of lack of jurisdiction and
procedural irregularity36. Therefore, it has to be born in our mind that East African
Court of Justice in not the appellate court of the partner states, its unlike to the
former East African Court of Appeal.

2.1.5 Accessibility of the EACJ

Under the Treaty for the Establishment of the East African Community stipulate as to
who can access the court, in term of bringing complaint or any matters which need
determination of the court these includes;

Partner States; In case any partner states are of the opinion that any member state
has violated any treaty obligation may refer the matter before the East African Court
of justice for determination37.

Also, Secretary General, in case the secretary General considers that any member
state failed to fulfill its obligation under the treaty or in case the partner states
violated the treaty38. Once member states fails to do any obligation under the treaty

33
Ibid art 36.
34
ibid.art 24.
35
Joint Communiqué’ of the 8th Summit of EAC Heads of state, 30 th November 2006, Arusha,
Tanzania.
36
Treaty for the Establishment of the EAC (n 6) art 35A.
37
ibid art 28.
38
Treaty for the Establishment of the EAC (n 6) art 35A art29.

16
law, then in case it needs the determination of the court the same may be referred to
EACJ by a Secretary General.

Moreover, national court, under this domestic court can refer any matter before the
court in issues involving Treaty interpretation or determination of legality of a
Community law. National courts refer the matter before the EACJ for correct
interpretation of the treaty law39. The essence of the national court to refer the matter
before the EACJ for preliminary ruling is to ensure uniform interpretation of the
community laws. This can be evidenced in the case of Attorney General of Uganda v
Thom Kyahurwenda, in which the supreme court of Uganda requested a preliminary
ruling on the justifiability of article 6,7,8 and 123 of the Treaty40.

Lastly, Legal or natural persons residents of East Africa, under this any person who
is the resident in a partner states can refer any matter for determination by the court.
The matter can be on legality of any Partner State or Community Act, regulation,
directive, decision or action on the infringement of the treaty.41

Furthermore, in relation to the tenure and power of judges of EACJ toward

independence of judiciary. That judges have seven-year non-renewable tenure and
work on ad hoc basis until the summit determine the full operation of the court. The
treaty provides that judges shall be independent; however the mode of appointment,
tenure and removal of judges from office the court independence seems to be
undermined. Also, the judges of the court are highly exposed to the executive arm of
the partner states.

2.1.6 Court of Justice of European Union

Court of Justice of European Union is the Apex judicial organ of the European
Union42. Under the CJEU judges are appointed by the common accord of the

39
ibid art 34.
40
Attorney General of Uganda V Thom Kyahurwenda [2012-2015] EACJLR 451.
41
Treaty for the Establishment of the EAC (n 6) art 30.
42
Cuyvers Armin, ’Institutional Framework of AU’ Ugirashebuja E and others (eds.), East African
Community Law (Brill 2017)97.

17
government of the partner states for a term of 6 years renewable tenure. Under the
CJEU judges themselves select the president of the court for term of three and can be
able for further re-appointed43. The CJEU is a truly supranational organ, it has
mandatory jurisdiction over all European Union laws 44.The CJEU is divided into
divisions namely the Court of justice which is the highest one, the General Court
which is the lower court and specialized courts 45. The operation of the CJEU, the
court is fully operational zed and work on permanent service and seat in Luxembourg
City in Luxembourg.46

Therefore, in the context to the tenure and power of judges of EACJ in relation to the
independence of judiciary. The researcher only used to the CJEU as the reference
that EACJ can draw experience from the same. Tenure of judges under CJEU is
highly secured since the mode of appointment and removal of judges from office is
far away from control by other Organs of the community.

2.1.7 The Summit

The Summit, which is equivalent to the European Council of European Union, is the
Apex political organ of the community47. Although the EAC Treaty does not
expressly states for Organs’ hierarchy order, but the EACJ has acknowledged that the
Summit is the highest organ in the institutional framework of the community 48. Its
main function is to safeguard the pursuance of the goals of the community and its
manned by the Head of States and Government of the member states. 49The Summit is
tasked to give directions and impetus for achieving the goals of the community. 50 For
ensuring mutual understanding between the member States, the decision of the
Summit is by consensus.

43
Treaty for the Functioning of the European Union (n 24) art 253.
44
Treaty on European Union (n 5) art 24.
45
Ibid art 19(1).
46
Ssemmanda (n 14) 76.
47
Possi A, ’The East African Court of Justice: Towards effective protection of human Rights in the
East African Community’ (PhD Thesis, University of Pretoria 2014) 79.
48
Hon. Sitenda Sebalu v Secretary General of the East African Community (No.2) [2013] EACJ
Reference No. 8 of 2012, p. 34, para. 72.
49
Treaty for the Establishment of EAC (n 6) art 10(1).
50
Treaty for the Establishment of the EAC (n 6) art 11(1)

18
The EAC Treaty expressly confer mandate on the summit to appoint, removal and
suspension of judges upon any misconduct and this power is non-delegable 51.In
relation to the tenure and power of EACJ judges the Summit has greater role to play
in ensuring the court is independent. The Summit ’s most important function in
connection to the tenure and power of judges is to establish legal order in the
community is to assent to Bills passed by the EALA in order to guarantee judicial
independence. Therefore, the Summit is principal organ within the community in one
way or another has greater impact on protection of tenure and power of judges in
relation to independence of judiciary

2.1.8 The Council

The council is the crucial organ of the community. It consists minister responsible
for East African Community affair, the Attorney General and other such minister as
the member states may determine 52. The Council is the policy organ of the
community and is empowered with the function of initiating and submits Bills to the
assembly, monitoring and ensuring maximum implementation of programs and
policies for attaining the goals of the community53.

Furthermore, in relation to the tenure and power of judges of EACJ toward judicial
independence, the council has a great role to play in order to ensure effective
independence of judiciary. The Council can initiate and submit the bill to the
assembly, which may be the bill containing protection of security of tenure of judges
and operation of the court.

51
Ibid art 24(1)
52
ibid art 13.
53
ibid art 14.

19
Therefore, council is the vital organ in realization of judicial independence through
initiating and submission of Bills to the Assembly which may guarantee maximum
protection of EACJ judges. Hence, the court is not full operationalize until the
council determines it is full operation of the court as now the court serves on ad hoc
service54.This is the clear evidence on the role of the council toward achieving
judicial independence of the EACJ

54
East African Court of Justice, ‘Court Manual: A practical Guide to the Law and Practice of the East
African Court of Justice’ (East African Court of Justice 2020) 21.

20
 CHAPTER THREE

THE LEGAL FRAMEWORK OF THE TANURE AND POWER OF JUDGES

OF THE EACJ
3.0 Introduction
This chapter provides for legal framework on the tenure and power of the judges of
EACJ in relation to independence of Judges. This chapter will show the legal
framework based on municipal laws (principal and subsidiary legislation)

3.1 The Legal Framework

This party is meant to address the laws governing the Tenure of judges of EACJ in
relation to independence of judiciary. Regional instruments and international
instruments consulted in alignment with municipal laws in the discussion are those
which EACJ are part of it.

3.1.1 Regional Instruments

These are the written agreements between the sovereign or independent states to
create the rights and obligations between parties and such parties are governed by
such agreement.

3.1.1.1 The treaty for the Establishment of the East African Community 2000
The treaty it is a framework law governing the integration process toward achieving
the objective of the community among the partner states. The treaty aimed at
broadening and deepening cooperation among the member’s states so as to attain the
common goals in economic, political, technology, legal and judicial affairs for the
mutual benefit55. The treaty established the EACJ as the apex judicial body, in the
community which ensure the adherence to law in the interpretation and application of
and compliance of the member states with the treaty 56.The EACJ is a separate organ
vested with power to interpret the community law and adherence to the rule of law.
This indicate that the court is independent organ in interpreting and applying
community law and not otherwise. Also, in performing it is judicial duties as temple

55
Treaty for the Establishment of EAC (n 6) art 5.
56
ibid art 23.

21
of justice judges are immunes from any legal action for any act or omission resulting
in the execution of their judicial function as a temple of justice.

Consequently, tenure and power of EACJ judges is provided for in the treaty for the
Establishment of the East African Community. Judges of EACJ work on ad hoc basis
and have a seven-year non-renewable tenure and the summit is vested with power to
removal and suspends judges. There some provisions in the treaty try to guarantee
the independence of the EACJ judges. However, the treaty makes no specific
mention of the EACJ status of independence. Instead, it requires the process of
appointing the judges to take into consideration proven integrity, impartiality and
independence of the judge57.

Therefore, the treaty is the framework law regarding to the tenure and power of
EACJ judges, and at this juncture independence of judiciary determine the
effectiveness of the court in dispensation of justice.

3.1.1.2 The African Charter on Human and Peoples’ Rights 1986

The Charter has recognized the role of independence of judiciary in the dispensation
of justice. It provides for the right to a fair trial and includes provisions that relating
to independence of judiciary58.This it the document that promotes and protects
human rights across Africa, it recognizes various civil, political economic social and
cultural rights and establishes mechanisms the right and dignity of individuals and
the collective rights of the African peoples, it significant step towards ensuring
human rights and justice on the continent. It addresses the independence of judiciary
of East Africa court of justice. However the EACJ has it own legal framework that
ensures the independence of its judges. Framework is established in the East Africa
community Treaty and EACJ Act. It outlines the appointment, qualifications, and
terms of office for the judges, as well as the procedures for handling cases.

57
Treaty for the Establishment of EAC (n 6) art 24(1).
58
African Charter on Human and Peoples’ Rights (adopted 01 June 1981, entered int force 21 October
1986) art26.

22
It establishes that judges shall be appointed on the basis of their merit, qualification
and integrity and that they shall enjoy security of tenure. The Charter is relevant to
this study as it acted as the guideline for African countries in promoting
independence of judiciary by securing tenure of judges.

3.1.2 International Instruments

This party it carries discussion on the various international instruments that address
the whole issues of the tenure and powers of EACJ Judges in relation to
independence of judiciary. How ever international instruments, these are the written
agreements between the sovereign or independent states to create the rights and
obligations between parties and such parties are governed by such agreement

3.1.2.1 The Universal Declaration of Human rights 1948

It is a soft law under the UDHR incorporates the principle of independence of
judiciary. The UDHR is a document in the history of human rights which was
adopted by the UN General Assembly at its third session in Paris on 10 December,
1948 as to the independence of judiciary human right. It covers the wide range of
rights including to life, liberty and security of person freedom of thought conscience,
and region and the right to education and healthcare. The declaration has been
influential in shaping human rights standards and laws around the world its an
important milestone in promoting equality, justice, and dignity for all. It recognizes
that every one is entitled to a fair and impartial trial, and that the judiciary should be
independent from external influence s. that means judge should be able to make fair
decision based on the law and facts of the case, without interfere of the pressure from
the government or other parties. The declaration emphasizes the importance of an
independence of judiciary in upholding justice and protecting human rights. It saves
as guiding principle for ensuring the integrity and impartiality of judiciary system
worldwide

It provides for the right to equality to a fair and public hearing by and autonomous
and neutral tribunal in the determination of rights and obligation of an individual 59.
Therefore, the declaration is relevant to this study as it recognizes the importance of
judicial independence and impartiality in ensuring a fair trial. Despite it is soft law,
59
Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A (III)) art 10.

23
but it has acted as benchmark for the recognition of the independence of judiciary in
which States has to step within it.

3.1.2.2 The United Nations Basic Principles on the Independence of the

Judiciary
These principles were developed by the UNGA in 1985 and provide guidance on the
independence and impartiality of the judiciary. These principles establish that judges
shall be appointed on the basis of their merit, integrity and qualifications. These
principles call for state parties to guarantee independence of the judiciary and be
enshrined in the constitution or the law of the country. Also, it set standards which
shall be accorded by state parties to ensure court is free from external influence.

That, the tenure of office of judges, their independence, conditions of work, and the
age of withdrawal shall be adequately fixed by law. Judge shall have guaranteed term
until an obligatory age of retirement 60.Despite of the international instrument set out
standard but yet in the treaty for the establishment of the EAC is not yet guaranteed
as the international guidelines prefer, still yet judges work on the ad hoc basis and
non-renewable tenure.

Furthermore, the tenure and power of judges is a bedrock concept in the

independence of judiciary for fair and impartial decision in a democratic society.
Therefore, it imposes obligation to the state parties to incorporate provision on their
constitution and domestic law in order to secure the judicial autonomous.

3.1.2.3 International Bar Association’s Minimum Standards of Judicial

Independence
Under this instrument it provides for the set of guidelines that provides a framework
for insuring the independence of judges and protecting the judiciary from undue
influence. These standards are relevant to the tenure and power of judges of EACJ as
they help to safeguard the independence of judiciary. Furthermore, it provides
guidance on the appointment, promotion and removal of judges, as well as their
security of tenure and freedom from external force.

60
United Nations Basic Principles on the Independence of the Judiciary (n 3) pg 11.

24
Despite the international instruments provides the minimum standards that are to be
met for protection of tenure and powers of judges, yet in the EACJ is still
questionable. The minimum Standards of judicial independence is relevant to this
study as it recognizes the role of protecting the independence of judiciary and
ensuring judges are able to carry out their duties without fear of retribution.

3.1.2.4 International Covenant on Civil and Political Rights

ICCPR has recognized the importance of the independence of the court in the
dispensation of justice. ICCPR is a multilateral treaty adopted by the United Nations
general assembly through resolution 2200A (XXI) on 16 th December 1996 and come
into force from 23 march 1976 in accordance with article 49 of the covenant, the
covenant commits parties to respect the civil and political rights of individual
including right to life61. The ICCPR is part of the International Bill of right along
with the international Covenant on Economic, Social and culture Rights (ICESCR)
and the Universal Declaration of Human Rights (UDHR) 62. This it’s an important
human rights treaty. It provides a frame work for the protection of civil and political
rights which can indirect impact the work of judges in the EACJ. The covenant
establishes the right to a fair trial and includes specific provisions relating to
independence of judicial independence. It provides that every individual shall be
accorded a far and public hearing by a competent, independent and neutral tribunal
established by law63. It also specifies that judges shall be appointed on the basis of
their merit and qualification and that they shall enjoy security of tenure. Therefore,
the covenant is relevant to this study as it provides some guideline and States
obligation on what to do in order to secure judicial independence.. The ICCRP
establish certain rights and freedom from torture, which are fundamental to the
proper functioning of any judicial system including the EACJ. Judges in the EACJ
like in any other court, are expected to uphold these rights and ensure the
enforcement.

61
Fredvang M & Biggs, S. (2012). The Rights of older persons 67 Brunswick street. Brotherhood of
St. Laurence available at www.bsl.org.au pg 10
62
Ibid pg 10
63
International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force
23 March 1976) 999 UNTS 171 art,34.

25
3.1.2.5 International bar Association Minimum Standards of Judicial
Independence (adopted 1982)
Is a set of guidelines that outline the necessary conditions for a fair and independent
judiciary system, this standard aim to promote the rule of law and protect the rights
of individuals. They cover the aspects such as the appointment and tenure of the
judges, the impartiality, and their protection from improper inferences. Its an
important document in the field of the law and justice. More over are important for
judges in East Africa because they emphasize the need for judges to have security of
tenure. This means judge should have stable position and nor easily removed without
valid reasons. As provide under article 4, life tenure promotes and in compatible with
the doctrine of independence of judiciary. there are three models of judicial tenure
namely; life limit, age limit and terms limit. This can be explained herein below Life
limit tenure; under this category judges are appointed for life or until death 64.also
article 2 it provide that tenure it should be for life. The International Bar
Association’s Minimum Standard of Judicial Independence also provides that,
judicial appointment should be for life. However, the removal is subjected upon to a
valid reason and compulsory retirement at an age fixed by law65.

3.1.2.6 Basic Principles on the Independence of the Judiciary1985

Are sets of guidelines that outline fundamental of principles for insuring
independence of judiciary World Wide. These principles emphasize the important of
an impartial and independent judiciary as a cornerstone of the rule of law. They
cover various aspects such as the appointment and tenure of judges, their
impartiality, security, and protection from improper influences, this principle provide
framework for countries to establish and maintain an independent judiciary that can
uphold justice and protect the rights of individual. Article 4 of the Basic principle
this juncture judges may be appointed for life or until mandatory age of retirement as
well as for limited term of office66. That judges they should be stay until the age of
retirement that he should not be removed until they done or their time of retirement.

64
International Bar Association’s Minimum Standard of Judicial Independence (n 4).
65
International Bar Association’s Minimum Standards of Judicial Independence (adopted 1982) art 2.
66
Basic Principle of independence of Judiciary (n 3)

26
 CHAPTER FOUR

RESEARCH FINDINGS
4.0 Introduction
This chapter provides for what has been obtained by the researcher in the course of
collecting data both primary and secondary data. The analysis made in this chapter is
supported with the data and information obtained by the researcher and to link with
the hypothesis of the research.

4.1 Research findings

The findings of this dissertation and its data are analyzed and presented by simple
content analysis tool and simple tabulation, like findings are interpreted by words
and not numerically.

4.2 Modes of Appointment of Judges of the East African Court of justice

Under the Treaty for the establishment of the EAC, the summit is vested with power
to appoint judges of the EACJ 67. The summit appoints judges who have been
nominated by the member states in their home county. Furthermore, the summit
selects the president and the vice president of the Appellate Division, not only that,
but also the summit chooses the principal judges and the deputy principal judges
judge of the First Instance Division68.

Since judges are nominated by the partner states and appointed by the summit,
member states are coached by political minds in the nomination judges. It has been
shown that partner states nominate judges that would present and protect interest of
the nominating state in the community. The processes for vetting not clearly
stipulated in the treaty, the judges are expected to qualify to be a judge in their home
states is where judges can be appointed by the summit. The qualifications of
appointing of judges in every state are not qualification. Also, the means that are
used by the member states to appoint judges of EACJ are unknown.

67
Treaty for the Establishment of EAC (n 6) art 24(1).
68
ibid art24(4) & (5).

27
Therefore, judges nominated by the partner states to be appointed by the summit
might have coupled with political mind of the appointing state, for purpose of
protecting the interest of the home country. This is shown that, once judges turns
against the interest of the home government, the partner states have vehemently
reacting on the suspension and removal of the judges. The ruling in the case of
Anyang Nyong’ois clearly a reflection of political motive on nominating the judges to
be appointed by the summit. Hence, the mode of appointment under the Treaty does
not leave the judges independent as well as the security of tenure is put at risk.

That the current nature of judicial appointment and the security of tenure of the
EACJ judges raise genuine concern about independence of the court. On responding
on the interview question one of the respondent had this to say concerning the mode
of appointment of the judges:

“It seams many judges are chosen with special strategy to defend the
interests of the nation, that’s why if they make a small mistake or goes
against the expectations of the country that elected him or her
recommended him, they assign him other duties, or he is assigned other
duties such as being an ambassador, so long as he leaves the court this
will greatly endanger the security of the judiciary and the safety of the
work of judges”69.
Therefore, mode of appointment of judges exposed judges to the executive Organ in
their respective member states; hence the judge’s tenure is compromised 70. This is
clear evidenced that judges may be expunged in the office by violating his own
country law. Hence the research finding that the EACJ is not independent as the
judge’s tenure is exposed much to the executive arm of the respective partner states.

Also in the course of collecting data some respondent lamented on the mode of
appointment of judge of the EACJ, had this say:

”the way judges are elected is not friendly to the development of our
community because many judges are elected on their own because, there
are no criteria for election of judges, there would, be a procedure to
announce those positions as judges in the media if any judge has criteria
let him play after that, those who get those positions should be simplified

69
Interview by Author (23 January2023, Dodoma, Dodoma).
70
Majawmba H I and others, Hamonisation of Laws in the East African Community (Law AFRICA
Publishing (K) Ltd 2018) 76.

28
 or voted in the parliament as they can be members of the parliament of
the United Republic”71.

Therefore, from the above experience it is shown that the mode of appointment of
judges is a debatable issue in the EAC. This trigger to have judges with different
qualification, that the best way of appointing judges is by way of election after
announcement of the post of judges as job vacancies and the same to be voted in the
Parliament of the home state as the member of the EALA does. That is to say mode
of picking judges is considered to be the most fundamental element of securing
independence of judiciary.

4.3 Tenure of Judges of the East African Court of Justice

Tenure is an important facet of independence of judiciary, judge whose tenure is
protected is more immune from political pressure, corruption and other external
force. Tenure of judges has been stipulated for under the treaty for the establishment
of East African Community. The current arrangement under the treaty judges are
appointed for seven years non-renewable tenure and shall retire at 70 years unless
they resigned72.The time given to the judges of EACJ to hold office is too short hence
does not help the court, since the court become like a learning institution, which
prepare judge to be more competent but before they can deliver their tenure come to
an end73.In the course of responding to the interview one of the interviewee had this
to say regarding the tenure of judge:

“Challenge comes when the time to retire comes and when the period of
service has not yet come to an end because the time spent in the office is
counted together with the time of retirement, this leads to the loss of
judges who have experience when the time has not yet come”.74

From the aforesaid observation the researcher finds that, the seven-year term to hold
the office for EACJ runs simultaneously with the mandatory age of retirement 70-
years. Therefore, it does not help the court to be a temple of justice because the court

71
Chilo S interview by author (17 March 2023, Dodoma, Dodoma).
72
Treaty for the Establishment of EAC (n 6) art 25.
73
Nsekela H R, ‘Overview of the East African Court of Justice ’ A Paper presented during the
Sensitisation Workshop on the Role of the East African Court of justice in the East African
Community Integration (Kampala,2011)4
74
Japhet J interview by author (16 March Makulu, Dodoma).

29
loose judge with bundle of knowledge and experience. Since, judges with experience
reach the mandatory age of retirement of 70 years while their term still subsists.

4.4 Removal of Judges of the East Africa Court of Justice

Under the treaty for the Establishment of the East African Community, it has
provided for the grounds of removing judges from office. These grounds were
effectuated by the 2007 amendment of the treaty in which prior to the amendment of
the treaty, there was no ground for removal of judges from their office. The move of
the aforesaid amendment was the result of the ruling in Anyang Nyong’o case, in
which the amendment target to removal two Kenyan judges who were accused for
corruption75. The introduction of new grounds for removing and suspending judges
from their office endanger the independence of the court. That, once the judges has
been suspended his or her judicial duties in their home country for any scandals of
misconduct76. This automatic is the ground for the summit to remove the judges from
the office after receiving recommendation from the independent tribunal77.

Therefore, ground provided for in the treaty to remove judges is uncertainty as there
is no uniform reason for removing judges in the member states. In which each
partner states have it is own grounds to remove the judges from the judicial duties.
This is because many judges of the East African Court of Justice still serve as
national judges while at the same time serve in the EACJ in ad hoc basis.
Consequently, once judges are disqualified from the home state automatic the
summit can remove the same. This is to say judges can be expelled from office by
infringing of his own country law78.

Therefore, from the above experience it seems that judges some time being removed
from their home country for political reasons, which the same grounds used by the
summit to terminate them from the EACJ. This can be evidenced in that land mark
case of Anyang Nyong’o case, the ground for removing judges as stipulated in the
75
Helfer L, Gathii J and Karen J, ‘Backlash against International Courts in West, East and South
African: Causes and Consequences’ The European Journal of International Law (Vol .27,
No.2,2016) 303.
76
Treaty for the Establishment of the EAC (n 6) art 26(1) b.
77
ibid art 26(1).
78
Kamanga K C, ‘An Enquiry into the Achievements and Challenges of the East African Regional
Integration’ Majamba H I and others (eds.), Hamonisation of Laws in the East African Community
(LawAFRICA Publishing (K) Ltd 2018)76.

30
treaty, threat the security of tenure of judges and endanger the independence of the
court. The grounds for removing judges under the EAC treaty act as the threat and
intimidation to the security of tenure and to the independence of the EACJ in
general79.

4.4.1 The Effects of Tenure and power of EACJ judges in relation to

Independence of Judiciary
Tenure of judges can have both positive and negative impacts on the independence of
the judiciary. Tenure provides judges with job security; it can also potentially affect
their independence. The tenure of judges of EACJ is seven years non-renewable
tenure subject to removal and compulsory retirement age of 70years. For the purpose
of this study only negative effect of tenure of EACJ judges to the relation to the
independence of judiciary is discussed and positive effect of the same is ignored. The
tenure of EACJ judges compromise the independence of the court in the following
ways.

4.4.2 Influence of Political Power

Tenure of judge under the EAC Treaty attracts political interference since tenure of
judges is not secured. This is influenced by the terms of appointment of judges,
ground of removing and suspension of judges is not clearly stated under the treaty
making insecurity of judges. The way judges of the EACJ are appointed exposed
them to the executive arm of the partner state, even their tenure survival much
depend on the mercy of the partner state. Also, the way judges are terminated from
their office the partner states have great role on the removal of the judges.

In course of responding to the research questionnaire, one on the respondent

commented that. The logic is simple the tenure under the treaty cannot make the
judges to be independent even if the treaty says so. This due to the fact that some
time judges of EACJ delivers sensitive judgment that has impact to the political
situation of the partner state. That, judges can never still hold the office if the said
judgment touches the interest of the member states, their will do each and every thing
to expel the judges from the office refer the decision of Anyang Nyong’o. The one

79
Possi (n 29) 7

31
who appoint judges have the same mandate to remove Judges. The tenure of Judges
is vulnerable to be interfered by the political power of the partner states80.

Therefore, from the aforesaid experience it seems that tenure of EACJ judges is
flexible enough to be manipulated with political interference. This is evidence in the
case of Anyang Nyong’o case that the partner state has great influence on the survival
of the term of judge. Following the decision in Anyang case judges experienced
political attack and being disqualified by most political leader this reduce
independence of judiciary81.

4.5 The Legal and Practical Challenges Caused by Non Renewable Tenure and
Limited Power of Judges in Dispensation of Justice
4.5.1 Delay of Justice
Justice includes timely determination of case without any delay. Since judges of
EACJ serve for a non-renewable tenure, there occasion quarter of judges who are
required to operationalize the court their terms come to an end at the same time.
Summit usually meets for a fixed duration of time for purpose of appointing judges.
In case the tenure of judge elapses while the summit session is not scheduled, the
court proceedings cease. This cause delay of case example court proceedings has
been suspended since November 2020 until February 2021, following seven (7)
judges out of 11 completing their term of office.82

4.5.2 Increase of Backlogs of Cases

Short term non-renewable tenure does not help the court rather destroy the
effectiveness of the court. Under the EACJ judges are frequently exchanged,
expiration of tenure and removed from the office. The tenure of judges goes hand
with hand with ad hoc service of judges this brought congestion of case. Term of
judges is calculated simultaneously with the mandatory age of retirement which

80
Japhet J, interview by author (16 March Makulu Dodoma)
81
Prof.Peter Anyang Nyong’o and 10 others v Attorney General of Kenya and 5 Others [2005-2011]
EACJLR.
82
The terms for both the president and deputy judges for the court have since expired, this is because
the summit, which is the appointing authority, did not carry out it is noble duty following their
inability to convene since 2018<https://www.theeastafrican.co.ke/tea/news/east-africa/summit-set-
to-appoint-judges-3300064>.

32
occasionally terminates a number of judges. While awaiting the summit to appoint
judges court proceedings cease hence increasing the workload of case to the court.

4.5.3 Loose of Expertise and Experienced Judges

Duties of judges require expert and experience in order to deliver reasonable
judgment. The tenure of judges stipulated under the EAC Treaty is too short which
does not prepare judges to build experience but train the judges 83.Seven non-
renewable tenure and mandatory 70-year age retirement make the court to lose
potentially judges who has had begun to acquire experience from the court. This is
because the life of law needs more experience in order to offer justice to the
community. Furthermore, by so to say the court seems to be like training ground for
judges for preparing them to be professional, but before their can deliver their term
can to an end84.

4.6 Challenges Caused by Limited Power of EACJ Judges in Dispensation of

Justice
The general rules, court as the home of justice have exclusive power in
administration of justice. Limiting the power of Judges seem to interfere with moral
duties of the court. The following are some of challenges caused by limited power of
judges in dispensation of justice within the community;

4.6.1 Slow down the court role toward integration process

The purpose of establishing the EACJ as the community court is to solve dispute in
the community in order to make easily the integration process. Limiting power of
judges means denying the role of the court to be involved in integration process.
Example under the EAC treaty there some matters cannot be tried by the EACJ such
as conflict resulting from common market and customs union. Also, any matters
which its jurisdiction is conferred to organs of the partner states the same EACJ has
no power on the same85.By limiting such sensitive issue to be tried by EACJ is to set
back the role of the court in the integration agenda since conflict will be endless.

83
Treaty for the Establishment of EAC (n 6), art 25.
84
Nsekela (n 9)4.
85
Treaty for Establishment of the EAC (n 6) proviso of art 27(1).

33
4.6.2 Underutilization of the Court Service
Limiting the power of the judges is to underutilization of the court service 86. This
implies denying of the person to access the court and to use court service. Once a
person is denied to access the service of the court means his or her right cannot be
determined. EACJ power to entertain case is limited to some occasion by putting
some matter under jurisdiction of others bodies to solve the same. Example people of
EAC cannot seek service of the EACJ for dispute emanating from trade and
investment87. By so to say denying the person to bring the matter before EACJ
simply because the EACJ lacks power is to limit utilization of the court services as
the community court, which is contrary to the purpose of it is establishment.

4.7 Impact of the Length of the Tenure of Judges to the Performance of the
Court
The tenure of judges can have a significant impact on the performance and work of
the court. It is considered to be an important facet in ensuring the autonomous,
impartiality and effectiveness of the judiciary.

4.7.1 Experience and Expertise

It is argued that the life of law has not been logic, has experience and on the point of
view that knowledge cannot beat experience. It is on this standing that once judges
hold the office for a long time it is where experience is built. As Oliver Wendell
Holmes argued that ‘‘the life of law has not been logic; it has been experience ’’88.
This indicates that when judges hold office for long period, it is where the judges
become more competent in solving different matter within the community.

Longer tenure offers judges with bundle of experience and expertise, which can
enhance the quality of their decision making. Judges with experience are better
equipped to handle complex and hard case and are more likely to issue well-reasoned
and informed judgments.

86
EACJ, East African Court of justice Strategic Plan (2018-2023)17.
87
Protocol on the Establishment of the East African Customs Union (adopted 2 March 2004, entered
into force 1 January 2005) art 24.
88
Holmes, O. w. The Common Law (Brown and Company1881).

34
Moreover, short term tenure as the EACJ judges service does not built the court but
rather, the court is slowly becoming a training field for judges to undergo intensive
capacity building with a view to preparing them for effective discharge of their
mandate, but before they can deliver, their terms come to an end89.

4.7.2 Stability and Continuity

Longer tenures can offer stability and continuity to the court. When judges have
longer period to hold the office, they are less likely to be influenced by political or
other outside pressure. Due to the fact that judges will have assurance on his or her
service, which can help to ensure the independence and neutrality of the court. The
length of tenure of judges create confidence to the court for the judges to be able to
stand to their position and standing without fear from external pressure.

Moreover, the short terms tenure reduces stability of the court due to fear of the
judges that they can be removed at any time. Experience can be drawn from the EAC
Treaty the introduction of automatic suspension of judges from their office does not
build the court to its stability, rather it creates tension to the judges as well to the
whole court.

4.7.3 Judicial Independence

Tenure of judges is the most core important element of independence of judiciary.
The security of tenure can help to ensure the independence of judges, as they are less
likely to be driven with political pressure or threat to job security. Moreover,
lengthening the terms of judges would also add to the independent of the court 90.
Non-renewable long terms tenure offers the good protection of independence the
same, similarly short-term service have adverse effect to the judicial independence 91.
Since tenure runs together with the terms of appointment of judge, removal of judges
and power conferred to the judges. Being the case Judges of EACJ, the way there are
appointed, term of office and ground for removal is debatable which raise concern on
the independence of the court.

89
Nsekela (n 9)4.
90
Meron T ‘Judicial Independence and Impartiality in International Criminal Tribunals ’ American
Journal of International Law (2005) 362.
91
Bulmer (n 2)7.

35
4.7.4 Consistence and Predictability
Longer tenure helps to promote consistency and predictability in the court ’s
decisions, which is important for promoting public trust and confidence to the
judiciary. Once judges hold office for a long duration there will be consistence in the
decision making and predictability of the judicial function.

Moreover, short term tenure reduces consistence and predictability of the court, since
every judge will come with his or her own notion in the performance of the court.
Frequent rotation of judges does not build the court to be a temple of justice rather it
become a training field, hence reduce consistence in the work of the court.

4.8 Legal Challenge facing the East Africa Court of Justice

Despite of the great role of the EACJ in integration process within the community,
however the court is still experiencing number of challenges that weakening the
performance of the court. These include the following;

4.8.1 Giving National Court an Opportunity to Interpret the EAC Law

Ability of the national court to handle matter which would otherwise be handled by
the East African Court of Justice is to undermine the independence of the court as the
only judicial arm of the community. The EAC treaty conferred some jurisdiction to
the national court of the partner states 92. The essence of establishing a regional court
like the East African Court of Justice is to ensure consistency, certainty and
uniformity in the interpretation and application of the community laws. Example, an
individual, whose rights arising from the common market Protocol shall take matter
before his or her national courts and shall have no instant remedies to the EACJ93.

92
Treaty for the Establishment of the EAC (n 6) art 27(1).
93
Protocol on the Establishment of the East African Community Common market 2010 art 54.

36
4.8.2 Establishment of Parallel Body to Solve Disputes with the same Mandate
with EACJ
The Establishment of other dispute settlement mechanisms (Quasi-judicial body)
within the community with concurrent jurisdiction with EACJ. These quasi-judicial
bodies oust the jurisdiction of the EACJ as the apex judicial body within the
community. In 2004-member states of the EAC concluded the Custom Union
Protocol, which established the East African Committee on Trade remedies, vested
with power to solve dispute emanating from the same 94.From the aforesaid
observation one would wonder whether the EACJ was established to deal with any
significant role in the integration process of the EA. If the court power is to insure
interpretation and application of the community law, would somebody conclude that
the custom union is not part of the integration agenda of the community. The EAC
custom union is part of the community integration agenda, whose disputes thereto
would have automatic flow to the East African Court of Justice95.

Therefore, existence of the body with the same jurisdiction with the court
undermines the independence of East African Court of Justice as the only judiciary
arm of the community. Hence, the court cannot therefore be said to be competent and
efficiently be in operation when it lacks powers to discharge very crucial matters in
the region such as trade dispute resolution96.

4.8.3 Ad hoc Nature of the Work of the Court Judges

The mode of operation of the court runs concurrently with the tenure of judges. The
present structure of the court judges work on non-renewable seven years term does
not help the court. Despite of the limited tenure of judges of EACJ though judges
work on ad hoc basis, is an element that undermines it is efficacy. None of the ten
judges composing the court resides at the seat of the court, Example, the First
instance judges attend in Arusha to hear and determine case in every last week of the
month. In the course of collecting data one of the respondents had this to say on the
work of the court:

94
Protocol on the Establishment of the East African Customs Union (n 82), art 24.
95
Treaty for the Establishment of the East Africa Community (n 6), art 5(2).
96
Saende PG, ‘Dispute settlement within the East African Community: The East African Court of
Justice and its jurisdiction’ (LLM Dissertation, University of Nairobi 2012) 43.

37
The ad hoc nature of the work of the court had negatively impact in the dispensation
of justice. Ad hoc performance of the court increases work load of the court, by
increasing back log of case, and delay of cases97

4.8.4 Absence of Enforcement Mechanism of the Court Decision

Execution of the judgment of the East African Court of Justice sometimes is a bit
challenge. The court it is like a toothless dog, nowhere in the world a court can
pronounce a judgment with no ability to enforce the same. The court is empowered
by the treaty power to ensure the member states implement its judgment. Court does
not have any power to impose sanction in case of non-compliance or person who
fails to comply with its judgment. This make difficult for the parties seeking the
court and itself as there is no assurance that the ruling of the court will bear any
advantage.

Therefore, this make people to have no confidence on the court, this imply that the
court itself is not independent as it dependent on the national court of the partner
states to enforce the same98.

4.9 Practical Challenge Facing the East Africa Court of Justice

4.9.1 Unwillingness of the Member state to appreciate the Decision of the Court
Sometimes decision of the East African Court of Justice has not been received with
warmly hand by top leader of the partner states. This is viewed that there some
member states who do not appreciate the role and the existence of the court. In some
moment the EACJ decision is neglected when it is decision is against the wishes of
the particular member state. This was evidenced in Prof.Peter Anyang Nyong’o v
Attorney General of Kenya and others99, in 2006 the EACJ successfully denied the
oath of 9 Kenyans as members of EALA on the ground that they had been appointed
and not elected as required by the treaty 100.Kenya reacted on the judgment of the
court in Anyang Nyong’o by pressuring serving judges, critiques of the quality of the
legal reasoning. Further it was the reaction of Kenya that prompted the 2007
97
EACJ, East African Court of justice Strategic Plan (2018-2023) 6
98
Lando V, ’The domestic impact of the decisions of the East African Court of Justice ’ African
Human Rights Law Journal (2018) 468.
99
Prof.Peter Anyang Nyong’o and others v Attorney General of Kenya and others [2005-2011]
EACJLR17.
100
Treaty forthe Establishment of EAC (n 6), art 50.

38
amendment of the EAC treaty to include reason for removal of judges from the
office. The 2007 amendment which introduced new grounds for removal of judges,
the ground targeted the two Kenya judges who presided in the Anyang Nyong’o
case.101

Also, this can be evidenced in Anthony Calist Komu v The Attorney General of the
United Republic of Tanzania102.In this case Anthony Komu was a member of
political party in Tanzania ,he filed a reference challenging the whole process of the
election of the representatives of the Tanzania as the member of the EALA on the
ground that it was against the requirement of the Treaty. 103He prayed for a
declaration to that effect and an order prohibiting the parliament of Tanzania from
further infringement of that article in future election to the EALA. The reference was
served to the Attorney General of Tanzania on 19 June 2012, but the Attorney
General did not file a response within the time required as demanded by the law 104.
Surprisingly, after the time has elapsed, the Attorney General replied to the court that
the registrar of the Attorney General chamber was on holiday. This vindicates great
disrespect to the East African Court of justice.

Moreover, another reaction was evidenced in British American Tobacco (u)Ltd v The
Attorney General of the Republic of Uganda105.In this case the BAT ltd is accompany
situated in Kenya that involving in manufacturing of narcotic products (cigarette).
The company has number of subsidiaries around the region. In 2014 the company
filed a reference to the EACJ, accusing Uganda Revenue Authority for violating the
Custom Union and the Common market Protocols by imposing Excise Duty on
product on products imported from the company in Kenya. The EACJ ruled in favor
of the company, restraining and prohibiting the government of Uganda through its
revenue department from collecting excise duty at discriminatory rates. Following
101
The two Kenyan judges who presided in the Anyang Nyong ’o case were accused for corruption
allegations back in Kenya in 2003, which about 23 judges were suspended from the office. In 15
October 2003, justice Moijo Ole Keiwua and Kasanga Mulwa were suspended from the performance
of their functions as judges of the Court of Appeal of Kenya.
102
Anthony Calist Komu v The Attorney General of the United Republic of Tanzania[2012-2015]
EACJLR 102.
103
Treaty for the Establishment of EAC (n 6), art 50.
104
East African Court of Justice Rules of the court ,2019 r 32(1).
105
British American Tobacco (U) ltd v Attorney General of the Republic of Uganda (2015-2017)
EACJLR 799.

39
the said decision of the court the government of Uganda through the Attorney
general declared that it would continue to impose the excise duty to cigarettes
imported from Kenya106.

Therefore, the court does not receive enough corporations from the partner states in
case where the decision delivered shocked or is against the interest of the said
country. This make even the founding member themselves to lack confidence on the
performance of the court. The EACJ has arbitration role but member states are able
to find mediation service in another international tribunal and disregard the home
court. This can evidence in the conflict between Uganda and Kenya over the Maggie
Island in the Lake Victoria, the disputants involved to approach mediation service
outside the region to solve the same dispute, despite the EACJ have jurisdiction on
the same107.

4.10 Experience from the CJEU

European Union is the most successful regional integration in the world. The EU
treaty established the CJEU will full mandate of the judges over dispute arising
within the community108. In ensuring the court is stable the treaty is adequately
secured tenure of judges so as to promote independence of judiciary.

Tenure and power of judges are clearly defined under the EU treaty that judges serve
for 6-years renewable tenure109. The tenure of judges of CJUE allows the judges to
renew their term which confer the judges to hold office for long period. Longer term
of CJEU insure consistence, expertise and experience of judges which promote
independence of the court. This is not the same under EAC treaty in which the term
of judges of EACJ attracts vulnerable interference by political leaders.

106
Sylvia M J, ’Compliance and rebellion: An assessment of the EACJ Supranational Authority (2005-
2018)’ (Master of Arts in International Relations, thesis, United States International University-
Africa 2018) 57.59.
107
Sylvia M J, ’Compliance and rebellion: An assessment of the EACJ Supranational Authority (2005-
2018)’ (Master of Arts in International Relations, thesis, United States International University-
Africa 2018) 57.59.
108
Cuyvers Armin, ’Institutional Framework of AU’ Ugirashebuja E and others(eds.), East African
Community Law (Brill 2017)97.
109
EU Treaty (n 5) art 19.

40
Moreover, the mode of appointing judges of the CJEU is clearly articulated, in which
judges are appointed by independent common accord in their home country 110. Once
judges are appointed in their home country direct acquire the seat in the CJEU. Also,
the president of the court is appointed by judges themselves 111. Procedure of
appointing judges is certain and meets with the international standard which
demarcates the judges from being exposed to the executive arm of their partner
states. This creates confidence to the judges while discharging their judicial duties
which strengthen the independence of the court. This is far away from the EACJ in
which procedure of appointing judges is uncertain that triggers political manipulation
in the appointment process.

Furthermore, ground for removal and suspension of judges if CJEU is well

articulated as the international standard prefer112. Ground rooted from the partner
state is inapplicable to the removal of judges. Also, procedures for the establishing
the independent tribunal for investigation of judges’ misconduct is well settled. This
is far in the EAC treaty in which grounds for removal of judges is uncertain and
unknown as there no uniform grounds at community level in the same. Under which
the summit has exclusive control over removal of judges, since it is the same which
designate an independent tribunal for investigating judges’ misconduct113.

Also, the Judges of the CJEU work on permanent basis, as the court is full
operationalized of which create confidence to the judges 114. Permanent service of
judges attracts the court to be independent as there is assurance of the job. This is
because judges under CJEU do not have double job means that, does not serve as the
national judges in their home court. This is misery in the judges of EACJ still to date
judge’s work on ad hoc service because judges serve both at the community court
while at the same time serving in their domestic courts.

110
EU Treaty (n 5) art 19.
111
Treaty for the Functioning of the European Union (n 24) art 253.
112
Protocol on the Statute of the Court of Justice of the European Union, art 6.
113
Mukaido PK, ‘Towards a Just Community Role of the East African Court OF justice and National
Courts in the integration Agenda’ (Master of Arts in International Studies, University of
Nairobi,2014)45.
114
ibid (n 112), art 15.

41
 CHAPTER FIVE

CONLUSION AND RECOMMENDATIONS

5.1 Conclusion
A researcher finds that, the existence legal framework particular the Treaty for the
establishment of East African Community is not effectives in protection of tenure of
judges. Hence the EAC treaty equally does not guarantee tenure of the judges 115.
Therefore, endanger the independence of the court. The mode of appointment of
judges of the EACJ is driven force with political mind, since there is no community
standard for appointment of judges as each partner states has its own standards. Since
the judges are appointed by the member states which would otherwise include some
percent of political interaction with political issues at the state stage to gain
advantage for appointment. Therefore, how then do the said judges can demarcate
away from these political moves while at the regional level. The said mode of
appointment put at risk the security of tenure of judges. Since judges can be
suspended from the office on the ground originated from the home country this
vehemently qualify that the court is not independent 116.Therefore, the researcher
concludes that the current means of appointing judges of the EACJ in not suitable for
the court to independent.

Moreover, the treaty provides criteria and qualification for the summit to appoint the
judges that the same must be a person recommended by the member states. The same
has proven impartiality, integrity and independence and who meet criteria required in
their own home countries for holding such high judicial position 117. Surprisingly, the
treaty does not give out what should happen in the situation that these qualifications
cease to exist. Rather, the treaty only provides ground for removal of judges from
office for the allegation of misconduct or inability to perform the task of the court118.

115
Possi (n 29) 7.
116
Kamanga (n 71)76.
117
Treaty for the Establishment of the EAC (n 6) art 24(1).
118
ibid art26(1).

42
Also judges mandatory age of retirement of 70 year and seven non-renewable tenure
pose a greater challenge on the progress of the court session. Hence the application
of these double conditions makes the court to lose judges who has bundle of
knowledge and experience. Since most judges reach 70 year but there are well
equipped with lot of experience, but unfortunately before their can deliver their
tenure come to an end119.Therefore, the length of tenure of judges is not favorable for
the court as the temple of justice does not help the court to discharge well its
function.

Ground for removal of judges of East African Court of Justice stipulated for in the
treaty, in a vehemently manner put at a great risk to the security of tenure of judges.
Following the 2007 amendment of the treaty which introduced new ground for
removal of judges that judges can be removed for any reasons 120. The said provision
create intimidation to the judges which would otherwise make the judges to perform
their function with tension for fear of being removed, this parse reduces the
independent. Even the independent tribunal for investigation of judge ’s misconduct is
designed by the summit this reflection control over the court. This is to say additional
of new grounds for removal and suspension of EACJ judges, increasing dominant of
the Summit over the East African Court of Justice. Therefore, the 2007 amendment
of the treaty pose a great challenge to the present and on the future performance of
the court. The said amendment weakened the court rather than strengthen the same.

The current arrangement and operation of the court work on ad hoc basis as the court
is not yet full operational zed 121. This trend does not build the curt but rather destroys
the court, since ad hoc work of the court, increasing backlogs of cases and delays of
case. Hence people lose confidence on the court because the courts take longer time
to finalize cases.

119
Nsekela (n 9)5.
120
Joint Communique’ of the 8th Summit of EAC Heads of state, 30 November 2006, Arusha,
Tanzania, par.12.The East Africa Community Summit adopted the amendments to the East African
Community Treaty on the functioning of the East African Court of Justice. That the procedure for
the removal of judges from office provided in the Treaty be reviewed with the view to including all
possible reasons for removal other than those provided in the treaty.
121
Ruhangisa JE,’ Role of the East African Court of Justice in Realization of the common Market and
the customs Union’ A Paper presented during the Sensitisation Workshop on the Role of the East
African Court of justice in the East African Community Integration (Kampala,2011) 74.

43
Therefore, the researcher concludes that, tenure of EACJ judges is exposed to the
executive arm of the respective member state; hence, the court is not independent.
This is because the mode of appointment of judges and grounds for removal of
judges is highly associated with political move. That the Treaty for the Establishment
of the East African community does not offer independence to the judges of the
EACJ. Since most of nature of judicial appointment, security of tenure of judges
raises greater debate, hence the researchers without scintilla vehemently conclude
that the EACJ is not independent parse.

5.2 Recommendations
5.2.1 Mode of appointment of judges should be clearly articulated
The mode of appointment of judges determines the independence of judiciary. This
study discovers that the mode of appointment of judges is highly exposed to the
executive whims of the member state. The researcher recommends having a
transparent and credible ways of appointing judges of the EACJ. Under this there
should be similar approach at community level of appointing judges in order to avoid
the danger of politicized in the partner states. Also, the types of institution
responsible in appointing judges are a key element in determining the independence
of the court.

Further, the researcher recommends that the mode of appointing judges of EACJ
should be by way of votes in the public place. Also, the same job vacancies should
be advertised for any judges with qualification to apply as similar to the members of
the EALA does. Once judges are voted in the parliament of their home state it reduce
the risk of being politicized and this will create the sense of independence to the
judges themselves. Therefore, it does not make Sense for the political organ like the
summit to involve in the process of appointing judges of EACJ. Experience can be
drawn from the CJEU that the president of the court is elected by the judges
themselves and not by the political organ as the EAC does. Therefore, for the future
development of the EAC in order to guarantee independence of EACJ there should
be strictly criteria and transparent means of appointing judges.

44
5.2.2 Tenure of EACJ judges should be revisited
Under the EAC treaty judges of EACJ are appointed for a seven-year nonrenewable
tenure. The length of tenure that judges hold the office is to short compared to nature
of duties which require some experience. Since under the treaty seven years term run
simultaneously with the mandatory age of retirement. Hence, there is the possibility
of the judges to attain 70 year while it is seven terms still subsist. This make the
court to lose judges who at the apex age of performance of the court duties.
Therefore, the researcher recommends that the treaty should be revised so that to
lengthening the tenure of judges to hold the office because tenure and independence
of judiciary cannot be separated from each other. That longer and non-renewable
tenure tend to promote the independence of the court.

5.2.3 Grounds for removal of judges should be clearly articulated

Following the 2007 amendment introduced new grounds for removal of EACJ from
office. In which the said ground had the roots from the partner states that any
allegation of misconducts automatic warrant the summit to suspend from office.
Therefore, the researcher recommends that the treaty should be revised in order to
introduce new ground for removing and suspending judges at the community level
and not grounds that rooted from the partner state. Ground for removing judges
stipulated under the treaty does not leave the court independent as it endangers the
security of tenure of judges. In order to promote independent of judiciary, then there
should clear and credible criteria at the community level for removing judges and not
relying on the ground rooted from the partner states. Therefore, the researcher
suggests that article 26 of the EAC treaty should be amended as soon as possible for
the future betterment of the EACJ as the temple of justice.

REFERENCES
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45
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THESES AND DISSERTATIONS

CONFERENCE PAPERS

Nsekela H R, ‘Overview of the East African Court of Justice ’ A Paper presented

during the Sensitisation Workshop on the Role of the East African Court of
justice in the East African Community Integration (Kampala, 2011).

Nsekela, H. R, ’The Role of the East African Court of Justice in integration Process ’
A Paper for Presentation during the 3 rd East African Community Media
Summit (Kampala, 2009).

47
Ruhangisa, J. E, ’East African Court of justice: Ten Years of Operation (chievements
and Challenges)’A Paper presented during the Sensitisation Workshop on
the Role of the East African Court of justice in the East African
Community Integration (Kampala, 2011).

Ruhangisa, J. E,’ Role of the East African Court of Justice in Realization of the
common Market and the customs Union’ A Paper for Presentation During
the Inter-Parliamentary Relations Seminar (Nanyuki - V -)(Bujumbura
2010).

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