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;
(c)
The Coordination Committees;
(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
(c)
The Counsel of the Community.
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;
(c)
Is not an officer in the service of the community;
(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;
(c)
That causes remission of any debt due to 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;
(c)
Elimination
of non-tariff barriers;
(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 2nd of March 2004. The Protocol came into force on 1st
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.
(c)
Goods from Kenya into Uganda and
Tanzania shall be categorized into category A and Category B;
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% 2nd
year
6% 3rd
year
4% 4th
year
2% 5th
year
0% 6th
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;
(c)
25% with respect to finished products
and all other goods entering the community;
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;
(c)
Subsidies and Countervailing 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;
(c)
Regulations and Directives made by the
council;
(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 1st July 2005.
The
Commission has power to solicit power funds for its programs and
activities.
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