Regional Arrangements
- Treaty establishing the EAC
• Objectives: EAC Treaty
Art 5(1)
1. “The objectives of the Community shall be to policies and programmes aimed
at widening and deepening co-operation among the Partner States in political,
economic, social and cultural fields, research and technology, defence,
security and legal and judicial affairs, for their mutual benefit.”
Art 6: fundamental objectives include
Art 6: fundamental objectives include
·
mutual trust, political will and sovereign equality;
·
peaceful co-existence and good neighbourliness;
·
peaceful settlement of disputes;
·
good governance including adherence to the
principles of democracy etc
Dispute settlement: the EACJ
• The East African Court of Justice (EACJ) forms the main dispute resolution mechanism of the
EAC
• The Court is established by the Treaty as one of the principal institutions of the community, the
others being the Summit, the Council, Coordination Committees, Sectoral Committees, East African Legislative Assembly and the Secretariat
EACJ: Jurisdiction
Ø Art 23 EACT “The Court shall be a judicial body which shall
ensure the adherence to law in the
interpretation and application of and compliance with this Treaty.”
interpretation and application of and compliance with this Treaty.”
Ø Art 27 EACT: The
Court shall initially have jurisdiction over the interpretation and
application of this Treaty.
Ø 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.
Ø Art 31-the industrial jurisdiction of the court: “The
Court shall have jurisdiction to hear and determine disputes between the
Community and its employees that arise out of the terms and conditions of
employment of the employees of the Community or the application and
interpretation of the staff rules and regulations and terms and conditions of
service of the Community.”
Ø Art 31-“The Court
shall have jurisdiction to hear and determine any matter:
(a) arising from an arbitration clause contained in a contract or agreement which confers such jurisdiction to which the Community or any of its institutions is a party; or
(b) arising from a dispute between the Partner States regarding this Treaty if the dispute is submitted to it under a special agreement between the Partner States concerned; or
(c) arising from an arbitration clause contained in a commercial contract or agreement in which the parties have conferred jurisdiction on the Court.”
(a) arising from an arbitration clause contained in a contract or agreement which confers such jurisdiction to which the Community or any of its institutions is a party; or
(b) arising from a dispute between the Partner States regarding this Treaty if the dispute is submitted to it under a special agreement between the Partner States concerned; or
(c) arising from an arbitration clause contained in a commercial contract or agreement in which the parties have conferred jurisdiction on the Court.”
Ø Art 36-advisory jurisdiction
>The Summit, the Council or a Partner State may request the Court to give an advisory opinion regarding a question of law arising from this Treaty which affects the Community, and the Partner State, the Secretary General or any other Partner State shall in the case of every such request have the right to be represented and take part in the proceedings.
>A request for an advisory opinion under paragraph 1 of this Article shall contain an exact statement of the question upon which an opinion is required and shall be accompanied by all relevant documents likely to be of assistance to the Court
>The Summit, the Council or a Partner State may request the Court to give an advisory opinion regarding a question of law arising from this Treaty which affects the Community, and the Partner State, the Secretary General or any other Partner State shall in the case of every such request have the right to be represented and take part in the proceedings.
>A request for an advisory opinion under paragraph 1 of this Article shall contain an exact statement of the question upon which an opinion is required and shall be accompanied by all relevant documents likely to be of assistance to the Court
WHO HAS LOCUS?
1) Partner states
• art “28(1) A Partner State which considers that another Partner State or an organ or institution
of the Community has failed to fulfill an obligation under this Treaty or has infringed a provision of this Treaty, may refer the matter to the Court for adjudication.
A Partner State may refer for determination by the Court, the legality of any Act, regulation, directive, decision or action on the ground that it is ultra vires or unlawful or an infringement of the provisions of this Treaty or any rule of law relating to its application or amounts to a misuse or abuse of power.”
• Reference by the Secretary General art 29(1). Where the Secretary General considers that a Partner State has failed to fulfill an obligation under this Treaty or has infringed a provision of this Treaty, the Secretary General shall submit his or her findings to the Partner State concerned for that Partner State to submit its observations on the findings.
If the Partner State concerned does not submit
its observations to the Secretary General within four months, or if the
observations submitted are unsatisfactory, the Secretary General shall refer
the matter to the Council which shall decide whether the matter should be referred
by the Secretary General to the Court immediately or be resolved by the Council.
Where a matter has been referred to the Council under the provisions of paragraph 2 of this Article and the Council fails to resolve the matter, the Council shall direct the Secretary General to refer the matter to the Court.
2) Reference by Legal and Natural Persons-art 30:
Subject to the provisions of Article 27 of this Treaty, any person who is resident in a Partner State may refer for determination by the Court, the legality of any Act, regulation, directive, decision or action of a Partner State or an institution of the Community on the grounds that such Act, regulation, directive, decision or action is unlawful or is an infringement of the provisions of this Treaty.
Where a matter has been referred to the Council under the provisions of paragraph 2 of this Article and the Council fails to resolve the matter, the Council shall direct the Secretary General to refer the matter to the Court.
2) Reference by Legal and Natural Persons-art 30:
Subject to the provisions of Article 27 of this Treaty, any person who is resident in a Partner State may refer for determination by the Court, the legality of any Act, regulation, directive, decision or action of a Partner State or an institution of the Community on the grounds that such Act, regulation, directive, decision or action is unlawful or is an infringement of the provisions of this Treaty.
PROCEDURE-EACJ RULES OF PROCEDURE
• Proceedings are in 2 parts-written and oral
Written proceedings
• Written proceedings involve filing of documents and pleadings e.g. Rule 20-references by partner states, SG and nationals and requests for advisory opinion are to be commenced by an
application
• Rule 21-disputes between the community and its employees under article 31 are commenced by
a statement of claim
• Written proceedings involve filing of documents and pleadings e.g. Rule 20-references by partner states, SG and nationals and requests for advisory opinion are to be commenced by an
application
• Rule 21-disputes between the community and its employees under article 31 are commenced by
a statement of claim
Oral proceedings
• Involves oral submissions. Rule 52 requires the parties to hold a pre-trial conference before commencement of the oral procedure to determine
(a) points of agreement and disagreement,
(b) the possibility of mediation, conciliation or any other form of settlement
(c) whether evidence is to be oral or by affidavit,
(d) whether legal argument shall be written or oral, or both,
(e) the estimated length of the hearing,
(f) any other matters as the Court may deem necessary,
The court
may explore ADR where applicable otherwise the matter will be fixed for hearing
on a suitable date Judgment
• To be delivered 60 days after close of the oral proceedings-rule 66
• Art 38 EACT obliges parties to comply with the Court’s judgment
• A right of appeal exists to the appellate chamber
• Party may seek a review of the same
• A pecuniary judgment may be enforced in the
territory of any partner state pursuant to the applicable procedural rules
• To be delivered 60 days after close of the oral proceedings-rule 66
• Art 38 EACT obliges parties to comply with the Court’s judgment
• A right of appeal exists to the appellate chamber
• Party may seek a review of the same
• A pecuniary judgment may be enforced in the
territory of any partner state pursuant to the applicable procedural rules
Independence of the EACJ
• Art 27 limits jurisdiction of the court to interpretation and application of treaty
• The proposed expanded jurisdiction is yet to be effected discussion on the Draft Protocol on Extended
Jurisdiction has never been adopted
• Judges are nominated by the partner states and appointed by the Summit-made up of the heads of
states-how objective would the nomination likely be especially considering the history of judicial
appointments in EA and in Kenya especially
• The summit also appoints the president and vice president of the court
• It controls the procedure for removal
• How robust are judges in EA? What judicial culture do
they embrace? Does this affect the independence of the
court?
• Art 27 limits jurisdiction of the court to interpretation and application of treaty
• The proposed expanded jurisdiction is yet to be effected discussion on the Draft Protocol on Extended
Jurisdiction has never been adopted
• Judges are nominated by the partner states and appointed by the Summit-made up of the heads of
states-how objective would the nomination likely be especially considering the history of judicial
appointments in EA and in Kenya especially
• The summit also appoints the president and vice president of the court
• It controls the procedure for removal
• How robust are judges in EA? What judicial culture do
they embrace? Does this affect the independence of the
court?
Reference No 1 of 2006 and its aftermath
• Applicants sued the Government of Kenya, challenging the manner in which the government had handled nominations for the Kenyan representatives to the second EALA, which was due to be sworn in on 30 November 2006
• It was argued that the govt had breached the Treaty provisions in relation to such nominations
• Applicants sought an injunction against the swearing in of Kenya’s representatives to the EALA
• On 27 November 2006, after listening to all the parties in the reference, the Court granted an interim injunction, barring the swearing-in of the Kenyan nominees to the EALA pending full hearing of the application
• The Summit, led by Kenyan president Mwai Kibaki, and the Kenyan EAC minister, Hon. John Koech,
immediately launched a series of disparaging attacks against the Court.
• Among other things, they alleged that the Court was biased against the government of Kenya because the two judges from Kenya, Moijo Mataiya ole Keiwua (its president) and judge Kasanga Mulwa had a grudge against it because they were among the judges ‘purged’ by the Kibaki government in late 2003 during the socalled “radical surgery” to rid the Kenyan judiciary of corruption.
• The summit sought to have the treaty amended to limit the powers of the court by, among other things, establishing an appellate division, which could reverse decisions of the existing Court as contained in the official Communiqué issued by the Summit after its meeting of 30 November 2006
• Within one week, the staff of the three attorneys general and the EAC Secretariat had agreed upon draft Treaty amendments solely targeting the Court
• These were approved by the attorneys general, and sent to the EAC Council of Ministers, who cleared and forwarded them to the Summit for signature, all within two days
• These amendments were the ratified by the Kenyan cabinet-a function only vested in
parliament
• the proposed amendments had the effect of weakening the EACJ e.g. They allow the partner states to remove judges for unspecified reasons, including mere allegations of impropriety from the partner states, which severely dents the independence, integrity and image of the Court; they allow the summit to choose which judge to suspend even when complaints of misconduct have been made against many of them; they limited the court’s jurisdiction on matters that were deemed to be within the competence of the EAC organs
• The Kenyan counsel filed an application seeking to have the Kenyan judges disqualify themselves from handling the case on the ground that they were subject t disciplinary proceedings over their conduct back in Kenya and hence were biased
• Before presenting the application in court, Kamau Kuria confronted the judge in chambers and requested him todisqualify himself lest he (Mr Kuria) filed and prosecuted the application-the judge declined
• Kenya’s Solicitor General, Mr. Wanjuki Muchemi, in the
company of his Deputy, Ms Muthoni Kimani and Dr. Gibson Kamau Kuria S.C., called on the President of the Court in his chambers to inform him that unless he and Justice Kasanga Mulwa disqualified themselves from further hearing of the reference, he had instructions to file App’n No 5 of 2007. the application was heard on 30th Jan 2007
• The court considered that the confrontation of the President by Kenya’s counsels was intimidatory
• The application against Kasanga Mulwa was withdrawn. The application against Keiuwa was dismissed since there was no evidence that the judge was animated by any bias as would make him rule capriciously against the applicant.
• The ruling was delivered on 6th Feb. 2007
Even though the application was dismissed the intimidation of the court by the Kenya government and by the summit had an almost immediate impact-suddenly the court was less bold in its resolve
• Ole Keiuwa’s tenure expired and was not renewed
• Applicants sued the Government of Kenya, challenging the manner in which the government had handled nominations for the Kenyan representatives to the second EALA, which was due to be sworn in on 30 November 2006
• It was argued that the govt had breached the Treaty provisions in relation to such nominations
• Applicants sought an injunction against the swearing in of Kenya’s representatives to the EALA
• On 27 November 2006, after listening to all the parties in the reference, the Court granted an interim injunction, barring the swearing-in of the Kenyan nominees to the EALA pending full hearing of the application
• The Summit, led by Kenyan president Mwai Kibaki, and the Kenyan EAC minister, Hon. John Koech,
immediately launched a series of disparaging attacks against the Court.
• Among other things, they alleged that the Court was biased against the government of Kenya because the two judges from Kenya, Moijo Mataiya ole Keiwua (its president) and judge Kasanga Mulwa had a grudge against it because they were among the judges ‘purged’ by the Kibaki government in late 2003 during the socalled “radical surgery” to rid the Kenyan judiciary of corruption.
• The summit sought to have the treaty amended to limit the powers of the court by, among other things, establishing an appellate division, which could reverse decisions of the existing Court as contained in the official Communiqué issued by the Summit after its meeting of 30 November 2006
• Within one week, the staff of the three attorneys general and the EAC Secretariat had agreed upon draft Treaty amendments solely targeting the Court
• These were approved by the attorneys general, and sent to the EAC Council of Ministers, who cleared and forwarded them to the Summit for signature, all within two days
• These amendments were the ratified by the Kenyan cabinet-a function only vested in
parliament
• the proposed amendments had the effect of weakening the EACJ e.g. They allow the partner states to remove judges for unspecified reasons, including mere allegations of impropriety from the partner states, which severely dents the independence, integrity and image of the Court; they allow the summit to choose which judge to suspend even when complaints of misconduct have been made against many of them; they limited the court’s jurisdiction on matters that were deemed to be within the competence of the EAC organs
• The Kenyan counsel filed an application seeking to have the Kenyan judges disqualify themselves from handling the case on the ground that they were subject t disciplinary proceedings over their conduct back in Kenya and hence were biased
• Before presenting the application in court, Kamau Kuria confronted the judge in chambers and requested him todisqualify himself lest he (Mr Kuria) filed and prosecuted the application-the judge declined
• Kenya’s Solicitor General, Mr. Wanjuki Muchemi, in the
company of his Deputy, Ms Muthoni Kimani and Dr. Gibson Kamau Kuria S.C., called on the President of the Court in his chambers to inform him that unless he and Justice Kasanga Mulwa disqualified themselves from further hearing of the reference, he had instructions to file App’n No 5 of 2007. the application was heard on 30th Jan 2007
• The court considered that the confrontation of the President by Kenya’s counsels was intimidatory
• The application against Kasanga Mulwa was withdrawn. The application against Keiuwa was dismissed since there was no evidence that the judge was animated by any bias as would make him rule capriciously against the applicant.
• The ruling was delivered on 6th Feb. 2007
Even though the application was dismissed the intimidation of the court by the Kenya government and by the summit had an almost immediate impact-suddenly the court was less bold in its resolve
• Ole Keiuwa’s tenure expired and was not renewed
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