Inaction by states irks judges at East Africa Court of Justice

Kigali, Rwanda | THE INDEPENDENT | The 3rd Annual East African Court Justice Judicial Conference ended on Thursday in Rwandan Capital Kigali amidst grumbling by judges and some of the top EAC officials based in Arusha.

Apart from complaints of poor funding to the top judicial organ of the revived East Africa Community, the judges at the court openly expressed displeasure that the member states were not implementing the orders from the court.

Some judges also complained there there have been attempts by courts in the member states to try and overturn or influence the decisions of the court.
The latest development could be a major setback and frustrations to some citizens in East Africa since they had found it more convenient in in handling public interest litigation and cases related to human rights violations.

Complaints about poor funding of the Court and the failure by the majority of the member states to implement its orders were at least raised by the EAC secretary General, Veronica Nduva and the registrar of the court among others.

The frustrations about slow or lack of implementation of the Court’s decisions was further highlighted during a panel discussion where the Attorney General Kiryowa Kiwanuka and Justice Cheborion Barishaki were among the panelists.

Justice Cheborion Barishaki is a Justice of the Court of Appeal in Uganda but also one of the judges at the East African Court of Justice. Kiwankuka is also a member of the Council of Ministers at the East African Community.

During the discussions, it emerged that the various partner states of the Community appear not to affect that East African Community is a supranational regional organization whose organs like the East African Court of Justice, East African Legislative Assembly make decisions that take precedence over decision over similar institutions at state level.

There was a question on whether the Attorney Generals from the member states were satisfied with the implementation of the Court’s decision against the member states.

While answering the questions, Kiwanuka noted that it is very clear that countries must abide by the decisions of the court.

“From my view point, from where I sit, it is very clear on the principle that that countries must abide the treaties and the agreements that they have entered in. It is actually not a state question” he said.

Nevertheless, Kiwanuka agrees that there are some challenges that they have to deal with in as far as the court is concerned.   “Before we has the East African Court of appeal where decision of the partner states could be appealed to the regional court. That is not the case today. And therein is the issue we have to address” he suggested.

From Kiryowa Kiwanuka’s point of view, the most litigated issues at the East African Court of Justices have been related to the provisions of article 6(D) of the treaty.

“And when you read article 6(D), I wonder which other part of our domestic state laws is not covered here” he said.

Article 6(d) of the East African Community (EAC) Treaty outlines the fundamental principle of “good governance” within the Community, encompassing adherence to democracy, the rule of law, accountability, transparency, social justice, equal opportunities, gender equality, and the protection of human and peoples’ rights as per the African Charter on Human and Peoples’ Rights; essentially emphasizing the importance of ethical and responsible governance practices within the EAC member states.

He said Uganda on it part has implemented some of the Court’ decisions including one he filed against government of Uganda on behalf of British American tobacco Kenya.

He however cautioned that a decision made by the Court without taking consideration of the realities in any space could create more problems that the justice being sought.

“So when EACJ is making a judgement, it not enough to resolve the dispute between a member or a person in the community against the republic of Uganda. Your role is to make a decision that is acceptable not between those two parties. But that principle must be acceptable” he said. “On the issue of implementation of the decisions, the court should not expect that we are going to agree with you with every decision you make” he added.

The EACJ has previously made bold decisions like the one filed by Professor Peter Anyang’ Nyong’o when there was contention that that the process in which Kenya’s representatives to the East African Legislative Assembly were deemed to be elected to the Assembly, and the rules made by the Kenya National Assembly and invoked for effecting the said process infringed the provisions of Article 50 of the Treaty.

The court ruled in favor of the applicants sending the East African Legislative Assembly in a six-month shutdown. The Attorney General of Kenya appealed but the Appellate Court still ruled against Kenya.     Pressure on EACJ Judges.

Justice Cheborion Barishaki accepts the like in the Anyang’ Nyong’o case, the EACJ has been getting a lot of pressure from the member states to have the decisions reviewed. “But what I want to says is there has always been solidarity among the judiciaries in the region whenever pressure comes up” he said.

Still from Kenya, the EACJ made another decision in the Martha Karua case filed by Kenya’s Independent Boundaries Commission. Justice Cheborion said the Martha Karua case seems to have set a new trajectory.   “Where now, we are not seeing the executive putting pressure on the judiciaries. We are seeing a sister judiciary putting pressure on another judiciary in almost the same jurisdiction”

He suggests that the Attorney Generals from the member states have a big role to play in harmonizing the judiciaries and the East African court of Justice.

“In harmonizing them. In making sure that they don’t tear each other down” suggests Cheborion.   “Because had the AG of Uganda gone the way the AG of Kenyan went in the Martha Karua case, maybe by now we wouldn’t be having a regional court” he added.     What can be done to resolve the impasse?

The East Africa Law Society undertook a baseline study on the status of implementation of decisions of the East African Court of Justice. It found that less than a half of the decisions had been implemented by the member states.

The question has been on what can be done to turnaround the situation.

Dr.Anthony Luyirika Kafumbe, the Counsel to the East African Community suggests that there is need to amend the EAC treaty so that it speaks to the judgments of the court.

Dr.Anthony Luyirika Kafumbe, also an Ex–officio Member of the East African Legislative Assembly says the Treaty should have put in place a timeline for the member states to implement the judgements of the court.

“Beyond that, we also that the court does not have an enforcement mechanism. It relies on partner states civil procedure rules. And that it self has its own challenges,” Kafumbe observed.

Value of East African Court of Justice(EACJ)

Throughout  the the conference, it  observed that the East African Court of Justice (EACJ) is pivotal in regional integration.

EACJ President Justice Kayobera  said despite the challenges, the Court has undergone substantial growth since its inception, such as increased confidence in the Court based on the number of cases filed, developed jurisprudence, enhanced accessibility.

He said the goodwill by the EAC Partner States in implementing the decisions of the EACJ is highly valued. “This reflects commitment to uphold the rule of law and emphasizes the independence of the Court” he said.

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