EALA votes to extend regional court’s jurisdiction

The East African Legislative Assembly (EALA) has called on the council of ministers to extend the jurisdiction of the East African Court of Justice (EACJ). PHOTO| FILES

The East African Legislative Assembly (EALA) has called on the council of ministers to extend the jurisdiction of the East African Court of Justice (EACJ) to prosecute cases of Human Rights violations in the six member states.

While addressing the Assembly on Tuesday October 12th, 2021 in Arusha, the chairman of the Legal Rules and Privileges Kennedy Mukulia said that the Council of Ministers should extend the jurisdiction of the East African Court of Justice by finalizing the protocol on the extension of the jurisdiction of the EACJ as per article 140 of the treaty.

“Why should we drag our feet in extending the jurisdiction so that some of the issues connected with the Human Rights can be prosecuted? I am wondering what is the cause of the delay if our countries can be members if the ICC and we try to cooperate with the ICC while we can’t extend for EACJ,” said the South Sudanese law maker

According to Article 140 (4) of the treaty establishing the East African Community it indicates that until such time as the Council determines that the Court is fully operational, “a Judge appointed under Article 24 of this Treaty shall serve on an ad hoc basis.”

The East African Community Treaty provides for the initial Jurisdiction of the Court which is limited to interpretation and application of the Treaty, law makers say that many cases of Human Rights abuses in the community went unpunished.

“There was a case of Burundi’s journalists Union versus the Attorney General of Burundi the journalists filed a reference before the East African Court of Justice challenging the press law in Burundi, the first question they had to deal with was whether they had the jurisdiction to hear such a matter on Human Rights,” said Suzan Nakawuki a law maker from Uganda.

Besides not being able to prosecute issues related to the Human Rights abuses, the East African court is also seeking for autonomy from other regional institution in order to make decisions that won’t be influenced by member states.

Sub Article 1 of Article 27 of the Treaty provides for the initial Jurisdiction of the Court, which is limited to interpretation and application of the Treaty.

Sub Article 2 of the same Article empowers the Council of Ministers to extend the jurisdiction of the Court to include other areas including areas that the Court will have original jurisdiction, appellate jurisdiction and human rights.

The Treaty however, states that the Court’s jurisdiction to interpret the Treaty shall not include the application of any such interpretation to jurisdiction conferred by the Treaty on organs of Partner States. However, the Treaty does not mention the matters conferred to the jurisdiction of organs of the Partner States.

The meeting of the Sectoral Council on Legal and Judicial Affairs held on 24 November 2004 observed the need to extend the jurisdiction of the Court.

The EAC Secretariat prepared a zero draft Protocol to extend the jurisdiction of the Court and submitted it to the meeting of the SCLJA held on 8 July 2005.

The Sectoral Council adopted the zero draft and subjected it to a wide consultative process. Despite the draft protocol being considered by several meetings of the SCLJA and the Council of Ministers, the jurisdiction of EACJ is not yet extended to date.

“At one time the council thought following the article 27 of the treaty the court should and have the jurisdiction of Human Rights…at the end of the day when the protocol was ready to be signed they finally deleted the jurisdiction of Human Rights and left jurisdictions to deal with trade related matters,” Yufnalis Okubo the registrar of the East African Court of Justice told the EastAfrican.

The court’s registrar indicated that it was high time for the court to start handling Human Rights related cases, “we are not going to integrate if you are not sure of protection of human rights. It’s a precursor to integration that’s why you should look at our court there are so many cases challenging actions of our partner states on violation of Human Rights and the treaty.”

Currently the judges are still working on under ad hoc basis whereas article 140 of the Treaty provides that the ad hoc nature of the judges is a transitional measure, “now by November this year the court will be 20 years and it is still transiting all other provisions of the treaty have been completed but it is only the court,” said the court’s registrar.

The call to extend the East African Court of Justice’s jurisdiction came after the law makers released a report dated from 21st to 24th February 2021, on the oversight activity conducted on the development of the legal sector in the EAC.

The current mandate of the court is to rule on disputes between Partner States regarding the Treaty if the dispute is submitted to it under a special agreement.

Among the cases that the court has ruled on includes the interpretation of the Burundi constitution on whether Burundi’s late president Pierre Nkurunziza legally vied for another term in the office.

 “How do we expect the judges to work without fear or favor when they are discharging their duties if the court is not autonomy? How can we have a court whose decisions cannot be implemented by partner states…it’s like we have a toothless bulldog that can only bark but do not bite,” said a Tanzanian law maker Nkuhi Fnacy.

“The jurisdiction of the East African Court of Justice has not been extended to include Human Rights it is squarely the responsibility of the council, what are you afraid of council? Are you afraid that they will expose things or are you afraid of the ability to judge Human Rights cases?” said Ann Itto a law maker from South Sudan.

Implementation of the EACJ ruling has also been one of the challenges the court is facing, “Implementation of Judgments should not be a matter of the goodwill of a state but a matter of the rule of law and good governance,” said South Sudan MP Kennedy Mukulia.

According to the Treaty, the EACJ is open to Partner States, the Secretary General, the Summit, the Council, employees of the Community and private litigants (legal and natural persons) residing in the East African Community.

No Partner States have taken another Partner State to EACJ so far. However, a Partner State sued the Secretary General on the matter of the election of the Speaker of EALA.

The Secretary General is empowered to sue Partner States where they fail to fulfil their obligations under the Treaty or for violation of the provisions of the Treaty.

According to the report from EALA, there has been a number of instances where the Secretary General would have sued Partner States, “however the cumbersome procedure provided by the Treaty have been a hindrance to the Secretary General to take a Partner State to EACJ.”


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