Origin and introduction to East Africa community

Cooperation amongst the East African Countries of Kenya, Uganda and Tanzania has its roots in colonial history. In the late 1880s colonization had taken shape and roots in Africa. In 1890 the Berlin Colonial Conference was held to partition sub Sahara Africa. As a result of colonial conference the east Africa region was partition and divided amongst the United Kingdom and Germany. The UK was given colonies in British East Africa while Germany was given colonies in German East Africa.

German East Africa was later renamed Tanganyika, British East Africa was divided into 3 namely the protectorate and colony of Kenya, Uganda and the Equatorial Province. The Equatorial province is the territory now known as Juba Land Southern Sudan. The protectorate of Kenya encompassed the 10-mile coastal strip. The colony of Kenya was that territory Inland north of the 10 mile Coastal Strip stretching to Naivasha. Uganda started from Naivasha to Barara. This geographical territory of East Africa was thus administered by two colonial powers namely UK and Germany.

After the First World War in 1918, Tanganyika became a mandate territory and was placed under the League of Nations. The United Kingdom was given the mandate or power to administer Tanganyika on behalf of the League of Nations. The consequence of the mandate territory was that after 1918 East Africa came under one colonial administration of the United Kingdom. This singular administration in East Africa paved the way for the beginning of enhanced administrative, judicial, legal, economic and political cooperation of the three countries.

In 1894 the British Government decided to commence the construction of the Uganda Railway from Mombasa to Port Florence. The railway line reached Port Florence (Kisumu) in Uganda in 1901. This railway line traversed the protectorate and colony of Kenya and the Protectorate of Uganda. Due to these two different States being involved, it was decided by the British government to put the Railways and Harbours administration under one authority. This led to the established to the establishment of East African Railways and Harbours. This was the first institution for East African Cooperation.

In 1901 after the Railway had reached Kisumu, the British government also decided to have one administrative unit to deal with Posts and Telecommunications in East Africa. In 1901 the East Africa Posts and Telecommunication (EAP&TC) was established. In order to deepen the cooperation between the British Colonial territories, in 1917 a Customs Union between Kenya and Uganda was established.

In 1921 a single currency was developed for East Africa. By this time, Tanganyika was already part of the British colonial territories. In 1921 the Indian Rupee was made the legal tender for East Africa. The three East African Countries therefore had a single currency. With the 3 countries under one administration new ideas were floated on how to form a federation of East Africa.

In 1924 the British Government established a Commission known as the Ormsby-Gore Commission to look into the possibility of establishing an East African Federation. The Gore Commission recommended that there was a possibility of establishing the federation of East Africa if the mandate status of Tanganyika was reviewed.

In 1927 the Hilton Young Commission was set up to examine further prospects for the creation of the Federation of East Africa. The Commission recommended that the British Government should take steps to federate the 3 East African countries at Independence.

In 1961 the British Government announced that it was ready to grant independence to the 3 East African Countries on the same day on condition that they federated to become one country. Mwalimu Nyerere was ready to federate Tanganyika to the two partner states but this was subject to Kenya being Independent and Jomo Kenyatta being released. The British government rejected the idea of releasing Jomo Kenyatta and proceeded to grant independence to Tanganyika individually. Uganda attained independence in 1962 followed by Kenya in 1963.

In 1963 the 3 presidents of the East African countries met at Arusha to sign the treaty of East African federation. Two days thereafter there were attempted military coups in all the 3 countries and the treaty was not ratified. The idea of creating an East African Federation was left hanging in the balance and it was revisited in July 2004 and the 3 presidents of East Africa have now agreed in principle to create the federation of East Africa by 2015.

In order to continue the economic cooperation of East Africa, in 1926 the governors of Kenya, Uganda and Tanganyika met and decided to enhance legal and judicial cooperation. All the three countries were to apply the English Common Law. Consequently a unified judicial system was to be set up. For this reason the East African Court of Appeal was established to hear appeals from Kenya, Uganda Tanganyika and Aden. In 1946 the East Africa Airways Cooperation was established as a joint Airline for the 3 countries. The cooperation established the East African Airways, which airline took to the skies until its collapse in 1977.

In 1948 the British government noted that there were several organs or companies dealing with regional issues in East Africa. These were the East African Railways and Harbours, Posts and Telecommunication, the Court of Appeal, the Customs Union and the Airways. It was necessary to bring all these organs under one authority. In 1948 the East Africa High Commission was established to oversee all these organs.

Between 1948 to 1960 cooperation in East Africa continued in various fields, in education science and research National schools were established culminating in the formation of the University of East Africa with 3 campuses. The first campus was at Makerere University dealing with education, medicine and commercial subjects.

The Dar es salaam Campus was to provide legal education and training for East Africa. The Royal Technical College in Nairobi was to focus on engineering and other sciences to take advantage of the infrastructure laid down during the construction of the Uganda Railway. At its inception the University of East Africa could not award its own degrees but was a constituent college of the University of London.

In 1960 the University of East Africa became full-fledged and could award its own degrees which it continued to do until 1970 when it broke up. Giving rights to the University of Nairobi, the University of Dar es Salaam and Makerere University. During the period of 1948-60 the British had established the inter university council to coordinate research and education in East Africa.

At the pre-university level the East Africa Examination Council was set up to administer the ordinary and advanced level certificate examinations in East Africa. The East Africa Examination Council also collapsed in 1970 with the collapse of the Universities. In order to train pilots for the East African Airways the British established Soroti Flying School in Uganda. They provided planes for training and the personnel to do the training.

At the monetary level the introduction of the Indian Rupee was replaced by the East African Shilling and the East African Currency Board was established. The East Africa Currency Board operated as the Central Bank of East Africa charged with the responsibility of controlling the monetary policy of East Africa. The Currency Board broke up in 1965 and the East African Shilling was abolished as the legal tender to be replaced by 3 Central Banks and 3 National Currencies.

In 1961 the East African High Commission was renamed the East African Common Services Organization with the same mandate to take care of all the organs of the East Africa cooperation. At this stage in 1961 independence was looming for the 3 countries and new issues were coming to the forefront. Of particular interest was the question of the Customs duty that was being collected on behalf of the 3 East African States. Tanzania also raised the question about unequal distribution of benefits of cooperation.

They argued that the years of cooperation had revealed that Kenya was benefiting more than the two other countries. Of importance Mwalimu Nyerere raised the question of white settlers in Kenya. He argued that before Kenya gets independence he would like to know where the settlers would go. To him they were not welcome to Tanganyika and they were not welcome in an East African Federation. Unless the question of white settlers was resolved, there would be no federation of East Africa.

These challenges that were raised in 1961 continued to provide a shaky foundation for the East African Common Services Organization. In 1966 the 3 Presidents appointed a commission known as the Philip Commission named after Philip Ndegwa to examine the continued relevance of the East Africa Common Services Organization. The Philip Commission recommended that one of the weaknesses of the East African Common Services Organization was that it was set up administratively without any legal instruments to back it up.

It was recommended that the 3 partner states should form a legal basis for their cooperation. The Commission recommended the formation of an East African Community. In 1967 at Arusha, the treaty establishing the East African Community was signed and the Common Services Organization came to an end.

THIS TREATY ESTABLISHING THE EAST AFRICAN COMMUNITY IS THE SAME AS CAP 4 OF THE LAWS OF KENYA.

REASONS FOR COLLAPSE OF THE EAST AFRICAN COMMUNITY IN 1977

The EA Community as established in 1967 collapsed in 1977. There were several reasons that led to the collapse of the community. Each of these reasons slowly and gradually contributed to the eventual collapse of significance was the question of distribution of gains and benefits of integration. Tanzania and Uganda raised the concern that Kenya was disproportionately benefiting from the integration. They argue that most new industries were being set up in Kenya.

New industries implied that jobs were being created in Kenya at the expense of the other countries. It also implied that the Kenya government was generating income tax from the newly created employment opportunities. It was the Kenyan workers who were earning the income. The implication was that the Kenyan families were the ones benefiting from poverty reduction. The income generated from employment also had multiplier effects in that the workers were buying Kenyan goods and food crops and this had a ripple multiplier effect in the economy thereby expanding the Kenyan Market.

The new industries that were being created in Kenya had a pull effect in that they attracted new and additional industries. This made Kenya economic and industrial development to generate linkage effect both vertically and horizontally and these had the effect of strengthening the Kenya economy to the detriment of her partner states.

In order to address the question of uneven distribution of benefits, the community developed a transfer tax system whereby taxes raised in the community particularly from the developed partner Kenya would be put in a development fund and then transferred to the weaker partners to assist in industrial development. A bank was set up to administer the transfer tax and to source external finance for the development of Uganda and Tanzania.

This was the East Africa Development Bank with its headquarters in Kampala. Part of the transfer taxes raised within East Africa was to be used to build factories and industries in Tanzania and Uganda. A bicycle plant was set up in Uganda using transfer funds and a Kilimanjaro International Airport was built in Arusha to encourage tourists to visit the Serengeti of Tanzania. This Airport was put up to address the Tanzanian complaint that tourist coming to East Africa would land at Embakasi in Nairobi and spend most of their time and money in Kenya and make a day trip or a single night tour in northern Tanzania.

The revenue from the tourist was thus disproportionately accruing to Kenya in the form of hotel accommodation, food transport and aircraft landing fees. It was anticipated that Kilimanjaro airport would enable planes to land directly in Tanzania and the tourists to start their journeys or vacation from there. This proved not to be accurate and the concern or unequal benefits persisted.

DIFFERENT POLITICAL IDEOLOGIES ON THE PART OF THE PARTNER STATES

During the colonial era the 3 partner states shared a common ideology namely the quest for independence. After independence the 3 countries started to pursue different political ideologies. Tanzania started to lean to the East to adopt a socialist ideology. Kenya was leaning to the West with a capitalist ideology. Uganda was torn in between. These ideologies came to a clash in 1967 when Tanzania announced that it was a Socialist state and the Arusha Declaration was passed establishing the Ujamaa system or villagisation system.

The Arusha Declaration was coupled with nationalisation of private property. Kenya remained a market based economy recognising private property. These divergent ideologies went to the root of the East African Community which was found on market principles. It became difficult for the community to survive when the partner states were pulling in opposite directions.

With the Arusha declaration of 1967 Uganda under Milton Obote was not left behind. Obote promulgated the common man’s charter of 1967 making Uganda a Socialist country. The effect was that Kenya was ideologically isolated. These ideological differences between the partner states quickly translated itself into political problems and there was a major lapse in political goodwill to sustain the community.

COLLAPSE OF POLITICAL GOODWILL

The Arusha Declaration and the Common Man’s Charter gave rise to a low ebb in the political relationships of the Heads of State of the 3 partner countries. This was quickly accelerated by the overthrow of Milton Obote in 1971 by Idi Amin. In January 1971 Obote on his way from the Commonwealth Conference at Singapore landed in Nairobi and he was informed that he was not the President of Uganda. He requested for military assistance from Kenya and it was declined. He requested political asylum and it was declined.

He travelled to Dar es salaam where Nyerere gave him political asylum for the next 8 years. Mwalimu Nyerere on his part stated that he did not recognize Idi Amin as the President of Uganda and as such he could not attend any East African Community meeting with Amin on the table. This statement by Mwalimu Nyerere had serious repercussions to the operations of the community. The executive organ of the community under the treaty was The Authority. The Authority was composed of heads of states and governments; Mwalimu’s statement in effect meant that The Authority would not meet.

The practical consequence was that decisions could not be made by the community. At this state each of the 3 countries was not isolated and they could not see eye to eye. Although the quorum for the authority was two heads of state, it was still difficult for the Authority to meet because the Authority was to meet on a rotational principle rotating in all the 3 capitals. Jomo Kenyatta declared that he was too old to travel and anybody who wanted to meet him including The Authority was to go to Gatundu. Nyerere and Amin called this disrespect of the highest order which was against the principle of sovereign equality of states. These two factors ensured that the authority never met.

THE ENTEBBE RAID

In 1976 an Air France plane flying from Tel Aviv to Paris was hijacked. The Plane landed in Tripoli Libya where the hijackers made a demand that all fundamental Muslim prisoners held in Israel should be released. The Israeli government rejected the demand. There was no further communication from the hijackers and the next thing the plane was at Entebbe. Aboard the plane were over 100 Jewish or Israeli passengers.

While in Uganda Idi Amin reinforced the demand of the Hijackers and gave the Israeli Government a 48 hour ultimatum to release the prisoners or one passenger would be killed per hour upon the expiry of the deadline. The Israeli government did not respond. However, unknown to many but only to Jomo Kenyatta and Dr. Njoroge Mungai the Israeli had planned to raid Entebbe and release the hostages. Before the expiry of the ultimatum Israeli Air force had arrived in Nairobi where their planes were painted in civilian colours and they took control of Kenyatta National Hospital.

In the wee hours of the night, the Israeli airforce arrived in Uganda and in a split second destroyed the Uganda Airforce and released all hostages except one and they were back in Nairobi where the passengers were treated at Kenyatta Hospital. When the world woke up the next day, all the hostages were back in Israel and Uganda had no airforce and the hostage crisis was over. The Air France plane was left behind and in a fit of anger Idi Amin personally burnt it and the one passenger who had been left behind was also shot dead.

When the events surrounding the Entebbe raid came to light and the role of Kenya became clear, Idi Amin declared that Kenya was not a worthy neighbour and demanded the redrawing of the Kenya/Uganda border to be what it was in 1890. Consequently he demanded Kenya upto Naivasha to be returned to Uganda. Idi Amin was short of declaring war on Kenya and the Israeli government and the US Government decided to bring their troops into Kenya ready for war with Uganda and by extension Libya which had declared support for Uganda. These events accelerated the declining political goodwill amongst the partner states particularly The Authority.

THE CHEPKUBE AFFAIR

During the days when Idi Amin was the president of Uganda there was little economic activities taking place in Uganda. The preoccupation of Amin’s State Research Bureau was to kidnap and kill any opponent to Idi Amin. Murder and lawlessness was the order of the day in Uganda. Everyday reports of abduction and disappearance was common in Uganda.

This reached its peak when Archbishop Janaan Luwuum was abducted when giving his Sunday summons never to be seen alive. While this was going on in Uganda, the Kenyans were going on a looting spree at Chepkube. Ugandan Coffee was being smuggled at Chepkube and being exchanged at the rate of 1 sack of sale for one sack of coffee. At the extreme it ended being a gangster affair where Ugandan Coffee would be taken to Kenya and the strongest gang would take it for free. This is what is referred to as the coffee boom in Kenya of 1976 – 77. The Uganda citizenry or people have never forgiven Kenya for looting their coffee and creating wealth in Kenya. The smuggling of Coffee continued until 1978 when one of the first actions of President Moi was to personally close the Chepkube market.

The response of Tanzania to the killing and looting of Uganda was different. Mwalimu Nyerere organized the people’s defence forces under Ugandans in exile into an army. He trained the peoples defence forces and the Ugandans in exile and gave them guns and released the Tanzanian soldiers to match on to Kampala to remove Idi Amin. For 2 years the soldiers were marching under the command of Yoweri Museveni then a student in Dar es salaam.

In January 79 the peoples defence forces matched into Kampala and Idi Amin was overthrown. He was replaced by a Commission headed by Paolo Mwanga which commission proceeded to appoint Professor Yusuf Lule as the President who after 3 months was replaced by Godfrey Binaisa as President, 3 months later Obote emerged and was put as the President normally referred to as Obote II and again he was overthrown in 1986 by Museveni.

In 1999 the East African Community was revived and it is the current Cap 4a Laws of Kenya

Reasons Why Countries Integrate:

There are several reasons why countries cooperate with one another and enter free trade areas or economic integration groupings. Some of these reasons are economic, others are social and some still political and strategic. In economic terms one of the most reasons for integration of economies is the need to enlarge markets and reap economies of scale. In East Africa the combined population of the 3 countries is over 90 million.

This market is an enlarged grouping, offering producers of goods and services the ability to involve themselves in large scale mass production. It is this large-scale production that is referred to as economies of scale. To a producer or manufacturer large scale production lowers the average costs of producing goods and services.

This lower cost is passed on to the consumer in the form of lower prices thereby creating a new demand for the product. This new demand is a further spur to large-scale production. For the 3 East African Countries the need to reap economies of scale and to expand the market of East Africa was a major factor for integrating the 3 countries. However it needs to be noted that increased population is not synonymous with increased demand. What is crucial in an enlarged market is effective demand i.e. increase in purchasing power. It is anticipated that the over 90 million people in East Africa offers an opportunity for an increase in effective demand within the region.

The other factor encouraging regional integration is the increase in investment opportunities. Investors would like to put their margin where the return on investment is high. A large market with economies of scale offers an attractive investment climate. The three East African Countries were desirous to increase investment opportunities within the region by integrating their economies to create a larger market they were creating an environment that attracts foreign direct investment. As individual countries their economies are too small to attract large investments. By integrating the expanded market is an attractive investment option.

The need to have political solidarity and bargaining power at the international fora is an added factor compelling the East African Countries to integrate. Today in economic terms the world is a global village where decisions are made by consensus or through voting. The voice of an individual country particularly a developing one carries little weight in trade forums.

However, when the countries integrate their economies and speak with one voice they wield a lot of weight and they are heard. The slogan divided we fall united we stand has relevant application in multilateral trade forums. For the East African Countries the need to have a bargaining power and a voice is one of the compelling reasons for integration.

Historical and cultural factors also pull the three East African Countries together. The common history of colonisation, the experience of Economic cooperation and joint institutions culminating to the East African Community of 1967 provide a strong historical foundation and pull towards cooperation and integration of the three countries. Historical nostalgia is a strong compelling factor for integration. Shared culture, language and common people is also a contributory factor. The peoples of East Africa are one.

We have the Maasai on both sides of the Kenya Tanzania border. Likewise the Kuria and on the Uganda side we have the Samia, the Karamajong, the Sabaot, the Teso, the Turkana, the Luos and others. This commonality in peoples along the boundary is a historical and cultural fact that bonds the countries of East Africa together. The peoples have intermarried and artificial political boundaries cannot stop their interaction, movement and trade relationship.

Geographical consanguinity or proximity is an added factor that makes the 3 partner states integrate. Countries sharing common geographical boundaries or lying within the same geographical region are prone to integrate together. It is much more easy for Kenya to integrate with Uganda and Tanzania than to integrate with Angola or Nigeria with which she does not share a geographical boundary. Uganda being a landlocked country has a direct sea route through Kenya or Tanzania. This geographical proximity to the ports and harbours of East Africa compels Uganda to integrate eastwards rather than westwards.

In recent times the cooperation in East Africa has been premised on global trends. The fashion in the world today is bigger is better. Countries are forming regional economic groupings to enlarge their economies. Over the last two decades there has been a proliferation of regional groupings worldwide. In North America there is NAFTA (North America Free Trade Area) in South America MECUSOR (FREE trade Agreement of Latin American Countries) in Europe there is the EU, Asia ASEAN (Association of South East Asia Nations) in Australasia there is the ANZAC (Australia and New Zealand Association)

With all these regional groupings Africa was being left behind. The need to join the bandwagon put pressure on the African countries to also go regional. The consequence was that in West Africa ECOWAS was founded, in Central Africa the Central Africa Economic Union (CEAMU) was established and in East Africa the pressure to revive the East Africa Community took place. In southern Africa, SADC (Southern Africa Development Cooperation) was formed. Within the larger area of Eastern and Southern Africa COMESA was established. MAGHREB region in the North African Arab Countries. This global trend towards regionalisation gave impetus for the 3 East African countries to revive the East African Community.

THE TREATY ESTABLISHING EAST AFRICAN COMMUNITY OF 1999

ORGANS OF THE COMMUNITY

The Treaty establishing the community sets out organs and institutions of the community. Article 19 establishes the following organs of the community:

(a) The Summit;

(b) The Council;

(d) Sectoral Committees

(e) The East African Court of Justice;

(f) The East African Legislative Assembly;

(g) The Secretariat ; and

(h) Any other organ as may be established by the summit.

Article 19 (2) and (3) establishes the following as the institutions of the community:

(a) The East African Development Bank;

(b) The Lake Victoria Fisheries Organization;

(c) The Surviving institutions of the old East African Community namely the inter university council of East Africa, the East Africa Publishing House and the East Africa Literature Bureau.

THE SUMMIT

The summit consists of the heads of state and government of the partner states. It replaces the old authority. The Summit is not the executive organ of the community. This is in contrast to the old authority that was executive. The functions of the Summit are laid down in article 11 of the treaty primarily to give general direction and impetus to the development and achievements of the objectives of the community. The summit is charged with the responsibility to consider annual progress reports and other reports submitted to it by the Council. It shall review the state of peace, security and good governance within the community. The Summit shall also review the progress towards the establishment of the political federation of the partner states. The summit also appoints the Judges of the Court of Justice. It assents to Bills of the Legislative Assembly. It admits new members to the community; it grants observer status to foreign countries.

The Summit shall meet at least once every year and may hold extraordinary meetings at the request of any member of the Summit. The decisions of the summit are by consensus. The Summit shall have a chairperson who shall hold office for one year on a rotational basis. The Summit shall determine its own procedure including the rotation of office and venue of meetings.

THE COUNCIL

Article 13 of the Treaty establishes the Council of the Community. The Council consists of ministers responsible for regional cooperation of each partner state and such other Ministers of the partner states as each partner state may determine. Article 14 lays down the functions of the Council. The most important function of the Council is that it is the policy organ of the Community. In the old community the authority was the policy organ. In the present community the Council is the policy organ.

The Council is supposed to promote, monitor and keep under constant review the implementation of the programmes of the community. It is meant to make policies for the efficient and harmonious functioning and development of the community. The Council initiates and submits bills to the Assembly. This function gives the Council a Legislative role. It has been argued that this goes against the principles of separation of power. However under the Treaty it is the Council of Ministers that initiates Bills to the Assembly. The members of the Assembly can only do so as a private members Bill. The Council also considers the budget of the community and makes staff rules and regulations governing the community.

It submits annual progress reports to the Summit; it prepares agenda for the Summit meetings. It recommends employment of senior officers of the Community. It implements decisions and directives of the Summit. The Council may amongst its members set up a Sectoral Council to deal with such matters as the council may delegate. The Council can also establish a Sectoral committee to deal with any matter. The council can also request for an advisory opinion from the court of Justice.

The Council must meet at least twice in a year. One meeting must be held immediately preceding the meeting of the summit. Extraordinary meetings of the council may be held at the request of the chairperson of the council or at the request of a partner state. The Chair of the Council shall be the Minister from the country that chairs the Summit. The meetings of the council shall be on a rotational basis. Decision making shall be by consensus. The Directives and decisions of the Council given in accordance with the Treaty shall be binding on the partner states and on all organs and institutions of the community.

THE COORDINATION COMMITTEE

Article 17 of the Treaty establishes the coordination committee composed of the Permanent Secretaries responsible for regional cooperation in each partner state.

The function of the coordination committee is to implement decisions of the council as directed. It is also to receive reports of the Sectoral Committees and to coordinate their activities. From time to time the coordination committee shall submit its reports to the Council, the Coordination Committee may also request a Sectoral committee to investigate a particular matter. The Committee shall meet at least twice in a year, one meeting immediately preceding the meeting of the Council.

SECTORAL COMMITTEES

Article 20 establishes Sectoral Committees of the Community. The Coordination Committee shall recommend to the council the establishment, composition and the functions of such Sectoral committees as may be necessary for the achievement of the functions and objectives of the community.

Each Sectoral Committee shall be responsible for the preparation of a comprehensive programme and priorities with respect to its sector. It shall also monitor and keep under constant review the implementation of programs of the community with respect to its sector. It shall give from time to time its reports and recommendations to the coordinating committee.

Subject to the directions of the Council the Sectoral Committee may meet as often as necessary for the proper discharge of their functions.

THE EAST AFRICAN COURT OF JUSTICE

Article 23 establishes the Court of Justice of East Africa. Originally the aim was to revive the East Africa Court of Appeal. However, after deliberations it was agreed that time was not yet right to establish a full-fledged East Africa Court of Justice with jurisdiction equivalent to the old East Africa Court of Appeal.

The Judges of the Court are appointed by the Summit; they should be six in number, no more than two should be from the same partner state. The Judges are appointed by the Summit from among persons recommended by the partner states who are of proven integrity, impartiality and independence and who fulfil the conditions required in their own countries for the holding of such High Judicial Offices or are jurists of recognized competence in their respective partner states. The term of office of the Judge shall be 7 years. There shall be a president and vice president of the court. The office of the president shall be held by rotation after the completion of any one term. A Judge may resign from office by giving 3 months written notice to the chairman of the summit through the Secretary General.

Article 26 of the Treaty deals with the removal of a Judge from office. The president of the court or other Judge shall not be removed from office except by the summit for misconduct or inability to perform the functions of his office or due to infirmity of body or mind. A Judge shall only be removed if the question of his or her removal has been referred to an ad hoc independent tribunal appointed for this purpose by the Summit and the tribunal has recommended that the Judge be removed from office for misconduct or inability to perform the functions of his office. The tribunal shall be composed of 3 eminent Judges drawn from with the Commonwealth of Nations.

Jurisdiction of the Court:

The Court of Justice has very limited jurisdiction, it only has the power to interpret and apply the treaty. Originally the question arose as to whether the courts should be given original and appellate jurisdiction to hear Appeals from the High Courts of the partner states, there was also a question whether the court of justice should hear appeals from the national appellate courts. Discussions on this matter resolved that the Court of Justice should have limited interpretation jurisdiction until such time as the council shall decide to expand its jurisdiction. Article 27 (2) stipulates that the partner states shall conclude a protocol to operationalise the extended jurisdiction.

Article 28 of the Treaty stipulates that a partner state which considers that another partner state or an organ or institutions or the community has failed to fulfil its obligations or infringed the treaty, may refer the matter to the court. A partner state may refer for determination by the courts the legality of any act, regulation, directive or decision on the ground that it is ultra vires or unlawful or an infringement of he provisions of the Treaty.

Under Article 29 the Secretary General can refer any matter to the court if he considers that a partner state has failed to fulfil its obligations under the treaty or has infringed the provisions of a treaty.

Legal and Natural persons are allowed to refer a matter to the court. Any person who is resident in a partner state may refer for the determination by the court the legality of any act, regulation, directive or action of a partner state on the ground that such an act is unlawful or an infringement of the provisions of this treaty.

Article 31 confers the court with jurisdiction to hear disputes between the community and its employees.

Article 32 vests the court with special jurisdiction relating to arbitration. Whenever a contract or agreement contains an arbitration clause designating the courts as the arbitrator, then the courts shall have jurisdiction to hear the dispute.

Article 33 examines the jurisdiction of the National Court with regard to the Court of Justice. It stipulates that disputes to which the community is a party shall not on that ground alone be excluded from jurisdiction of the national court of the partner states. Under Article 33(2) decisions of the Court of Justice on interpretation of the treaty shall have precedents over decisions of national courts.

The Summit, the Council or a partner state may request the court for an advisory opinion regarding a question of law, which affects the community. Under article 37 every party to a dispute or a reference before the court may be represented by an advocate entitled to appear before a superior court of any partner state.

In terms of enforcement of the decisions of the court Article 44 stipulates that when the judgment of the court imposes a pecuniary obligation on a person, the execution of the judgment shall be governed by the rules of civil procedure in force in the partner state. The Judges of the court have immunity from legal proceedings in the discharge of their judicial functions under the treaty. The official language of the court is English and the Court shall determine its own rules of procedure.

THE EAST AFRICAN LEGISLATIVE ASSEMBLY

Article 48 of the Treaty establishes the Assembly known as the East African Legislative Assembly. The assembly is made up of 27 elected members, nine from each partner state. There are five ex officio members of the Assembly consisting of

(a) The three Ministers responsible for regional cooperation i.e. the Council;

(b) The Secretary General to the Community; and

The Speaker of the Assembly presides over the Assembly. The Council appoints the clerk to the assembly and other officers whose salaries and terms and conditions of service shall be determined by the Council.

Article 49 lays down the functions of the Assembly namely to liase with National Assemblies of the partner states on matters relating to the community. The assembly shall also debate and approve the budget of the community. It shall consider the annual reports on the activities of the community and any other audit or report referred to it by the Council. It shall discuss all matters pertaining to the Community and make recommendations to the Council as it may deem necessary. It shall recommend to the council the appointment of the clerk and other officers of the assembly.

Article 50 regulates the election of members of the assembly. Each partner state shall elect 9 members of the Assembly. The election of the 9 members shall be done by the National Assembly of the Partner States, from persons who are not its members and who shall represent the various political parties represented in the National Assembly, shades of opinion, gender and special interest groups in the partner state. The procedure of elections shall be determined by the National Assembly of each partner State.

A person shall be qualified to be elected a member of the Assembly if

(a) He is a citizen of a partner state;

(b) He is qualified to be elected a member of the National Assembly of the partner state under its constitution;

(d) Has proven experience or interest in consolidating and furthering the interests and objectives of the community.

Under Article 52 if any question arises as to the membership or eligibility of a person to be a member of the assembly, such question shall be determined by the institution of the partner state that deals with questions of election of members of the National Assembly.

The members of the Assembly hold office for a period of 5 years and are eligible for re-election. The speaker of the assembly is elected on rotational basis from amongst elected members of the assembly. He holds office for 5 years. The assembly shall hold its meetings at such time and the places as the assembly may decide but at least one meeting per year must be held at Arusha. All questions for decisions by the Assembly shall be determined by majority of votes of the members present and voting. The Assembly shall make its own rules of procedure and determine the quorum or its sittings. Any member of the Assembly may propose any motion or introduce any Bill to the Assembly. However, Article 59 of the Treaty stipulates that the Assembly shall not proceed on any Bill

(a) That imposes any charge on the fund of the community;

(b) That causes payment, issue or withdrawal from any fund of the community;

The members of the assembly shall be immune from legal action for any acts or omissions in the discharge of their functions under the treaty. Any bill passed by the assembly must be assented to by the summit. Under Article 63 the Heads of State may assent to or withhold assent to a bill of the assembly. A bill that has not received assent within 3 months from the date on which it was passed by the Assembly shall be referred back to the Assembly giving reasons thereof. If the assembly discusses and approves a Bill, it shall be resubmitted to the Heads of State. if a Head of State withholds assent to a resubmitted bill, the bill shall lapse.

THE SECRETARIAT TO THE COMMUNITY

Article 66 establishes the Secretariat of the Community, the Secretariat is the executive organ of the community. There shall be the following officers in the service of the Secretariat

a) Secretary General;

b) Deputies Secretaries Generals;

c) Counsel to the Community; and

d) Such other offices as established by the Council.

The Secretary General shall be appointed by the Summit upon nomination by the relevant head of state under the principle of rotation. The Secretary General is the principle executive officer of the Community. He is the head of the Secretariat, the accounting officer of the community and secretary to the summit. He shall also discharge other duties as conferred upon him by the treaty or the council. He serves for a fixed 5 year term not renewable. The Deputy Secretary Generals are appointed by the Summit on recommendation of the council and on a rotational basis. The council determines the numbers of the deputies. Presently there are two deputies one in charge of finance and administration and the other in charge of programs and projects. The deputies serve for a 3 year term renewable once. The terms and conditions of services of the deputies are determined by the council and approved by the Summit.

The Counsel to the community is the principle legal advisor to the community. It is appointed on contract as determined by the Council.

Under Article 70 the Council shall determine other officers and staff of the community and their salaries shall be determined by the council.

The Secretariat as the Executive Organ of the Community has several functions outlined in Article 71 of the treaty. Basically the secretariat initiates recommendations to the council, it initiates studies and research and programs relevant to achieving the objectives of the community, it prepares strategic planning, monitoring and implementation of development programs of the community. It proposes draft programs and agenda for the meetings of the organs of the community other than the court and the assembly. It implements the decisions of the summit and the council. It keeps records of all meetings of the community other than the Court and the Assembly. It is the custodian of community property. It is charged with the responsibility of establishing a practical working relations with the Court and the Assembly. It is supposed to coordinate and harmonize policies and strategies within East Africa.

Lesson Five

AREAS OF COOPERATION IN EAST AFRICA

The treaty establishing the community identified several areas for cooperation in East Africa. These can be enumerated as follows:

1. Cooperation in Trade Liberalisation and development;

2. Cooperation in Investment and Industrial Development;

3. Cooperation in standardisation, quality assurance, Meteorology and Testing;

4. Monetary and Financial cooperation

5. Cooperation in infrastructure and service

6. Cooperation in development of human resources science and technology;

7. free movement of persons, labour, services, right of establishment and residence;

8. Cooperation in food security and agriculture;

9. Cooperation in Environment and Natural Resource Management;

10. Cooperation in tourism and wildlife management;

11. Health, Social and Cultural activities;

12. Enhancing the Role of Women in social economic development;

13. Cooperation in political matters;

14. Legal and Judicial Cooperation;

15. The Private Sector and Civil Society Development.

Cooperation in Trade Liberalisation and Development

Article 74 of the Treaty establishes the East African Trade regime. The Article stipulates that the partner States shall develop and adopt an East African Trade regime and cooperate in Trade Liberalisation and Development. Article 75 regulates the establishment of a Customs Union whereby the partner States undertake to conclude a protocol establishing the Customs Union.

The Customs Union so established by the protocol shall include the following:

(a) The Application of the principle of asymmetry;

(b) The elimination of internal tariffs and other charges of equivalent effect;

(d) Establishment of a common external tariff (CET);

(e) Providing for Rules of Origin;

(f) Dumping;

(g) Subsidies and Countervailing duties

(h) Security and other restrictions to trade;

(i) Competition;

(j) Duty drawback, refund and remission of duties and taxes;

(k) Customs cooperation

(l) Re-exportation of goods

(m) Simplification and Harmonisation of Trade Documentation and Procedures.

Under Article 75(7) the Partner States were required to conclude the protocol establishing the Customs Union within four years of the Treaty.

Article 76 of the Treaty regulates the establishment of an East African Common Market. The partner states are required to conclude a protocol establishing the common market. In the Common Market under Article 76(1), there shall be free movement of labour, goods, services, capital and the right of establishment.

Under Article 77 the Partner States are required to take measures to address imbalances that may arise from the application of the provisions of the treaty.

Under Article 78 of the Treaty the safeguard clause is enacted. Under the Clause in the event of serious injury occurring to the economy of our states, the Partner State concerned shall after informing the Council, through the Secretary General and other Partner States take necessary safeguard measures. The Council shall examine the method and effect of the Application of the existing Safeguard Measures and take decisions thereon.

THE EAST AFRICAN COMMUNITY CUSTOMS UNION:

The protocol establishing the East African Community Customs Union was signed on 2^nd of March 2004. The Protocol came into force on 1^st January 2005. When the Protocol came into force it established the East African Community Customs Union. Article 2 of the Protocol states that the Customs Union is established as an integral part of the Community. Within the Customs Union, Customs duties and other charges of equivalent effect imposed on imports shall be eliminated. Non-Tariff Barriers to Trade among the Partner States shall be removed. A Common External Tariff (CET) in respect of all goods imported into the partner States from Foreign Countries shall be established and maintained.

Objectives of the Customs Union:

Article 3 of the Protocol states that the objectives of the Customs Union shall be:

(a) To further liberalise intra-regional trade in goods on the basis of mutually beneficial trade arrangements among the Partner States;

(b) Promote efficiency in production within the community;

(c) Enhance domestic, cross-border and foreign investment in the community and promote economic development and diversification in the community;

The Partner States under Article 6 of the Protocol shall initiate Trade facilitation measures by reducing the number and volume of documentation required in respect of trade among the Partner States. They shall also coordinate and facilitate Trade and Transport activities within the community. They shall simplify their trade, documentation and procedures. For this purpose a Customs Databank shall be established at the Secretariat. The Partner States agree to adopt the Harmonized Customs Documentation on the basis of the four digit HS System.

Under Article 9 the Partner States agree to cooperate in the Prevention, Investigation and Suppression of Custom Offences within their territory.

Trade Liberalisation in the Customs Union:

As part of the Trade Liberalisation in the Customs Union, the Partner States agree under Article 10 to eliminate all internal tariffs and other charges of equivalent effect on a trade amongst them. By eliminating internal tariffs under Article 10 the partner states agree to collapse and abolish their customs boundaries. Ideally Article 10 envisages a situation of duty free entry of goods between the partner states. However, the application of the principle of asymmetry modifies the provisions of Article 10 by creating transitional provisions in Article 11 of the Protocol.

Article 11 of the protocol establishes an asymmetrical internal tariff structure within the Customs Union. Under the protocol:

(a) Goods to and from Uganda and Tanzania shall be duty free;

(b) Goods from Uganda and Tanzania into the Republic of Kenya shall be duty free.

Category A goods shall be eligible for immediate duty free treatment. Category B goods shall be eligible for a gradual tariff reduction as follows:

10% during first year

8% 2^nd year

6% 3^rd year

4% 4^th year

2% 5^th year

0% 6^th year.

A COMMON EXTERNAL TARIFF

Article 12 of the protocol enjoins the partner states to establish a common external tariff (CET). The CET is the tariff or import duty that is imposed on goods originating from countries that are not members of the East African Community. Article 12 establishes a three band common external tariff.

(a) Zero percent for raw materials and capital equipment;

(b) Ten percent for intermediate goods;

The 25% CET is the maximum import duty that can be imposed on any product originating outside the partner states. Under Article 12(2) of the Protocol the partner states undertake to review the maximum rates of the CET after a period of 5 years from the coming into force of the Customs Union.

In order to implement the provisions of the Internal Tariff Structure and the CET, the partner states through the East African Legislative Assembly have enacted the Customs Management Act of 2005. The Act establishes the directorate of customs which is charged with the responsibility of implementing the CIT and the CET of the Customs Union.

Under Article 13 of the protocol, the partner states agree to remove all non-tariff barriers to the importation into their territories of goods originating from other partner states, and not to impose non-tariff barriers thereafter.

Article 14 of the protocol deals with the Rules of Origin applicable to the partner States. Goods shall be deemed to originate in a partner State if it means the criteria set out in the community rules of origin. The protocol on the East Africa Community Rules of Origin adopts the following origination criteria:

1. The wholly obtain test;

2. The change in Tariff Heading Test;

3. The percentage criteria or the technical test;

These origination criteria are also embodied in the Customs Management Act.

Article 16 and 17 of the Protocol deals with Anti-dumping and Subsidies. The partner States recognize that Dumping is prohibited if it causes or threatens material injury to an established industry in any of the partner states or materially retards the establishment of a domestic industry or frustrates the benefits expected from the removal or absence of duties between the partner states. If Dumping takes place, the partner state injured is allowed to take Anti-Dumping measures to offset the effect of dumping.

If a partner state grants or maintains a subsidy including any form of income or price support, it shall notify the other partner states. If the subsidy injures any partner state, the community may authorise the imposition of a countervailing measure to offset the effects of the subsidy.

Article 19 of the protocol regulates safeguard measures that a partner state may impose. In situations where there is a sudden surge (increase) of a product imported into a partner state under conditions which threaten or cause to threaten serious injury to domestic producers then safeguard measures can be imposed by partner states.

Under Article 21 the partner states agree to prohibit any practice that adversely affects free trade between the parties. Any agreement that restrict competition or distorts the same shall be reviewed by the community.

The East African Community Committee on Trade Remedies:

The implementation of the Customs Union is bound to cause disputes among the partner states. For these reasons Article 24 of the Protocol establishes the committee on Trade Remedies to handle any matter pertaining to the following:

(a) Rules of Origin of the Community;

(b) Anti Dumping Measures;

(d) Safeguard Measures;

(e) Any dispute under the Customs Union;

(f) Any other matter referred to the Committee by the Council.

The committee shall be composed of nine members 3 from each partner state. The members must be qualified and be competent in matters of trade, customs and law.

The functions of the committee are to initiate through investigation disputes under the Customs Union, to make affirmative or negative determination on investigations so considered, recommend any provisional measures to be taken to prevent injury to a domestic industry. To facilitate consultations amongst the partner states and parties to the disputes. To administer and manage the dispute settlement mechanism and to undertake any duties assigned to it by the Council. The Committee is mandated to formulate its own procedure.

Under Article 15 of the protocol each of the partner states is required to observe the National Treatment Principle. No partner state shall enact any legislation or apply administrative measures which directly or indirectly discriminates the same or like products of any other partner state.

Export Promotion Schemes:

Part F of the Protocol establishing the Customs Union recognizes various Export Promotion Schemes that the Partner States are permitted to establish. The Customs Union aims at creating an export led growth strategy. This is a reversal of the initial policies of import substitution. Upon the attainment of independence by the partner states the strategy for economic growth was seen to be Import Substitution. The goal was to establish local industries to manufacture products that were being imported. It was envisaged that the new industries would create employment and save on the scarce foreign exchange. However the import substitution strategy did not lead to the expected economic growth due to lack of raw materials, political instability, poor management of the industries and generally unfavourable investment climate.

Article 25 of the Protocol mandates the partner states to support export promotion schemes to facilitate export oriented investments and producing export competitive goods. The goods benefiting from Export Promotion Schemes should primarily be for export. The various schemes recognized for export promotion are:

1. Duty Drawback Schemes;

2. Duty and Value Added tax remission schemes;

3. Manufacturing under bond schemes;

4. Export Processing Zones;

5. Free Ports; and

6. Other Exemptions Schemes.

Article 26 of the Protocol allows a partner state to operate a Duty Drawback Scheme. Upon the exportation to a foreign country, any goods, import duty may be refunded with respect to any raw material that had been used in the manufacture or processing of such goods.

Article 27 allows for the remission of any value added tax that has been paid with respect to any raw material that has been used to manufacture goods for export.

Article 28 allows a partner state to operate a manufacture under Bond scheme. Under such a scheme imported goods are allowed to enter the Customs Territory without paying any duty so long as the goods manufactured or processed shall be exported. The manufacture under bond scheme operates as a Customs Bonded Warehouse. If the goods manufactured in the Bonded Warehouse find their way into the domestic economy for consumption then full duty is payable. A manufacturing under bond scheme operates in the same way as an Export Processing Zone.

Article 29 permits the establishment of EPZs where goods can enter the zone free of any duty used in the production of Export Commodities. An Export Processing Zone is any territory or place so designated by the Customs Authority of the Partner States.

Article 31 permits the establishment of free ports. A Free Port is any territory within the partner states that is allowed to import and re-export any product without the payment of any internal taxes or customs duty. A Free Port is not a Port or a harbour, it is or can be any inland zone or harbour declared to be a free port. The Functions of a Free Port under Article 31(2) is to promote and facilitate trade in goods imported into the free port. It also provides facilities relating to free ports such as storage and warehousing and simplifying documentation procedures. The free port also aims at establishing an international trade supply chain centre, where persons from within and outside the partner states access and harness market opportunities within the free port.

Goods entering the Free Port are granted total relief from the payment of duty and any other import levies unless the good are removed from the Free Port for domestic use. Ordinarily goods in a Free Port are imported duty free and re-exported outside the customs territory. Countries that have opted for Free Ports take a deliberate decision to forego customs duty revenue and instead benefit from increased economic activities and the revenue generated from Free Port Services and other indirect gains. These free port services and indirect gains include hotel accommodation, transport services, increased visitors or tourists and the consumable goods purchased by the visitors.

Article 32 stipulates that Free Ports may be established at Sea Ports, River Ports, Airports and other places of Geographic economic advantage.

Customs Law of the Community:

Article 39 of the Protocol identifies the law applicable to the customs union. It stipulates that the Customs Law of the Community shall be

(a) The Treaty establishing the East African Community;

(b) The Protocol setting up the Customs Union and its annexes;

(d) Applicable decisions of the Court of Justice;

(e) Acts of the Community as enacted by the Legislative Assembly; and

(f) Relevant Principles of International Law.

The Customs Law of the Community shall apply uniformly in the customs Union.

Article 35 of the Protocol permits the Council to approve measures of asymmetry to address imbalances that may arise from the establishment of the Customs Union.

Article 36 permits a partner State to initiate safeguard measures in the event of a serious injury or threat of serious injury occurring to the economy of a partner State, following the application of the Protocol, the Partner State concerned shall after informing the council through the Secretary General and other Partner States, take necessary Safeguard Measures. The Council shall determine the method and effect of the Application of the existing safeguard measures.

Re-Exportation of Goods:

As a further measure to encourage re-exports Article 23 provides that the Partner States shall ensure that re-exports are exempt from payment of import duties or export duties within the Customs Union.

PROTOCOL ESTABLISHING THE LAKE VICTORIA BASIN COMMISSION

The Partner States of the East African Community recognize that they share a common basin of Lake Victoria. The Basin of Lake Victoria includes the Lake itself, the Highlands surrounding the Lake and the areas traversed by all rivers that drain into the lake. The Basin stretches from the Nandi Highlands in Kenya, the Kisii Highlands to the Kagera and Ruwenzori Highlands in Tanzania and Uganda. The Partner States to recognize that the Lake Victoria Basin and the Lake is a shared resource, a way of life and its resources are exhaustible.

The Basin has only a single outlet the River Nile. The importance of the Basin to the Partner State as a shared resource calls for sustainable use, and the management of the Basin and its Resources. Any activity undertaken by a Partner State on its side of the Basin can harm the eco-system and sustainability of the entire basin. Recognizing these facts the Partner States concluded a Protocol on the Lake Victoria Basin.

The Protocol establishes a Commission known as the Lake Victoria Basin Commission. The main purpose of the Commission is to manage and regulate the sustainable utilisation of the resources of the lake basin. The Commission is also charged with the responsibility of taking measures to reduce poverty within the Lake Basin. It is also to initiate infrastructural projects and programs within the Lake Basin. Within its mandate the Commission is required to liase with individual partner states and all countries where the River Nile flows.

The Commission is to liase with the Nile Basin Initiative on how to sustainably use the waters of the Nile. The Commission’s headquarters is in Kisumu. Presently the Commission operates from the Secretariat of the East African Community but it is expected to shift to its headquarters on 1^st July 2005.

The Commission has power to solicit power funds for its programs and activities.

AFRICA LAW CENTRE

EAST AFRICAN COMMUNITY LAW part 2