Region seeks to harmonise commercial laws

As the East African Community’s (EAC) partner states move towards a political federation, a five-day High Level Task Force meeting has been convened in Tanzania to pave way for an appropriate approximation of laws in a regional context.According to Owora Othieno, the head of Communications at the Secretariat, the meeting that concludes today is expected to critically consider the principles and other areas for harmonisation of the partner states’ laws on sale of goods, the identification and consideration of the conflicts and areas of divergences between national laws governing contracts and the EAC Common Market.“It is also expected to consider future modes of operation of the Sub-Committee on Approximation of Laws,” said Othieno in a statement.The Dar-es-salaam meeting follows another committee’s meeting that received reports from the Task Force on the study of Article 8 (4) and (5) of the Treaty for the Establishment of the EAC and progress report on the harmonisation Commercial Laws Project.DevelopmentsApparently, partner states are fast tracking development to achieve the bench marks to enhance the fruits of the federation. In the criminal law field, Uganda is working on laws relating to investment policy such as laws on computer misuse, digital evidence, banking, anti–money laundering and counterfeits. In the social area, Uganda was working on marriage and divorce law, Qadhi Courts Bill, subsidiary laws on domestic violence, electoral laws and laws relating to political parties and organisations.In Burundi, the country has passed laws on Value Added Tax, Revenue Authority, Elections and has established an investment promotional agency to attract investors. Burundi has also developed a Bill on Company law. In the criminal field, Burundi has also put in place a new Penal Code.In Rwanda, a law reform commission was established while the country has also laws or bills on civil and criminal procedure, penal code, and capital markets. It had also passed laws on mediation and conciliation, negotiable instruments, intellectual property and elections among others.In Tanzania,there is an ongoing project to review a number of laws relating to civil procedure, agriculture, pastoralism and a law establishing the Law Reform Commission. The country is also working on the Bill relating to marriage and succession. It has also passed laws on DNA, public health, political parties and the law of the child among others.In Kenya, the country is currently working on Bills relating to; companies, insolvency, partnerships, marriage, matrimonial property, domestic violence, elections and reviewing laws on succession, evidence and land disputes.ChallengesIt is observed that the Tanzania and Uganda provide clearly that Community laws shall come into force upon publication in the EAC Gazette; and that in the Republic of Kenya, EAC laws can only come into force after publication in the Kenya Gazette; and that the laws of the Republic of Rwanda and the Republic of Burundi were silent on how EAC laws shall come into force while partner states still have different views regarding the need to expressly provide in their laws domesticating the EAC Treaty that EAC Organs, Institutions and Laws take precedence over similar national ones.According to minutes of the 2010 Nairobi EAC approximation of laws summit report, Uganda and Tanzania were of the view that since they domesticated the EAC Treaty, all Treaty provisions are enforceable in the three Partner States; including Article 8(4) of the Treaty which requires that EAC Organs, Institutions and Laws take precedence over similar national ones. “In practice EAC laws had been successfully enforced in Partner States without any problem. Therefore, there was no need to amend Laws domesticating the EAC Treaty to expressly provide that EAC Organs, Institutions and laws take precedence over to similar national ones,” notes a minute in the report.The reason advanced according to the report was that, though currently there were no interpretations and enforcement problems of EAC laws, such problems may arise in future and as such they should be locked in the law.The Sub-Committee members in the report also considered and adopted the work plan developed by the Task Force on Approximation of national Laws in EAC context for the period of November 2009-June2010 in respect to Company and related laws. The work plan provides for activities to be undertaken to harmonize companies, insolvency, partnership and business registration laws in the region.However it also that the review of laws governing insolvency, Partnerships and Business Names Registration was not finalized due to the fact that the Republic of Burundi had not finished translating the above said laws into the English language. Burundi had according to the report requested for more time within which to complete the translation process.However, the Nairobi Sub Committee meeting could not verify whether all the national laws had been included in the inventory and tasked some officials to spearhead the verification process within their respective national laws and submit the report to theSecretariat for a subsequent communication to the consultant, the mission of which the Dare-salaam meet is supposed to execute.