Last week, I attended a workshop themed: “Role of the East African Court of Justice (EACJ) in advancement of the EAC integration” whose purpose was to increase the sensitization of the EACJ’s role in bolstering the rule of law, observance of democratic principles, and good governance. Fred K. Nkusi The EACJ is one of the organs, and in particular the judicial arm of the East African Community. The Court’s mission is to ensure that the law is observed in the interpretation and application of the EAC Treaty. Aside from ensuring that the law is uniformly observed in the interpretation and application of the EAC Treaty, the EACJ buttresses good governance reflected in adherence to the principles of democracy, the rule of law and accountability, among others. This role has been hugely reflected in its numerous case-laws. The EACJ plays an instrumental role in the realization of democracy and human rights as set forth in Article 7, paragraph 2, of the Treaty, where the Partner States undertake to abide by the principles of good governance, including adherence to the principles of democracy, the rule of law, social justice and the maintenance of universally accepted standards of human rights. The Court’s jurisdiction has a threefold role: to decide, in accordance with treaty and rules of procedures, on contentious matters arising out EAC Treaty within the meaning of Article 27, paragraph 1, of the Treaty, to give an advisory opinion in accordance with Article 36 of the Treaty and, finally, to entertain arbitral matters in accordance with Article 32 of the Treaty and rules of arbitration. Arbitration is one of the modes of Alternative Dispute Resolution (ADR) contrary to the classic mechanism of dispute settlement through litigation. Under the EAC Treaty, the Court has established a legal relationship with national courts, which enhances the chain of rule of law across the region. Thus, this relationship is worth sustaining. Additionally, the relationship with domestic courts would obviously augment the court’s visibility. It is an international court with a regionally-focused jurisdiction. More importantly, since its inception, the Court has contributed tremendously to the progressive development of international law through its jurisprudence. No doubt, its decided cases are of paramount importance for inspiration of national courts as well as for the scholarly purposes. For instance, the EACJ, through one of its decided cases, asserted that it has monopoly or primacy on matters relating to the interpretation and application of the EAC treaty. Of course, it doesn’t suggest that domestic courts can never attempt at all to interpret the EAC statutory rules, as they’re an integral part of national laws. However, if the interpretation of a certain issue is inconsistent with the EACJ’s position, domestic decision would be construed as subservient to the EACJ’s position. Another important development in the Court’s jurisprudence is that the requirement of exhaustion of local remedies is inapplicable. Unlike in many regional human rights courts, the exhaustion of local remedies, a general principle of international law codified in various instruments, isn’t a prerequisite to institute a case before the EACJ. Under the so-called ‘rule of exhaustion of local remedies’, a State must be given the opportunity to redress an alleged wrong within the framework of its own domestic legal system before its international responsibility can be called into question at the level of regional or international organs. In other words, a complainant must have given the domestic system the opportunity to put right the breach of your rights; this generally means that before applying to the Court you must have raised the same complaints in the national courts, including the highest court. However, the Court has some shortcomings as it doesn’t have the jurisdiction to hear individual complaints of alleged human rights violations, save those related to the breach of the EAC Treaty. In particular, Article 27, paragraph 2, asserts that: “The Court shall have such other original, appellate, human rights and other jurisdiction as will be determined by the Council at a suitable subsequent date. To this end, the Partner States shall conclude a protocol to operationalise the extended jurisdiction.” To date, the extension of court’s jurisdiction over human rights-related disputes is yet to come into being. The failure to extend the jurisdiction in accordance with Article 27 of the Treaty violates the EAC’s legitimate expectation that the matter contravenes the principles of good governance provided for in Article 6 of the Treaty. Another challenge lies on the time-limit for filing a complaint by legal or physical person. Article 30, paragraph 2, of the Treaty provides a time-limit of two months from the time a person is notified of the enactment, publication, directive, decision against his or her rights. Surprisingly enough, this time-limit doesn’t apply to Partner States. For the sake of fairness, a two-month period is pretty short for a person to have completed the process of instituting a complaint. As a matter of best practice, six months period is very reasonable. The six-month period may run from the date on which the decision of the highest national court or authority was given, or was served on you or your lawyer. The writer is a law expert.
