The Court of Appeal for East Africa was established in 1934.  It entertained appeals from the High Court in all the East African territories. Its jurisdiction was expanded later on to include Kenya, Uganda, Tanganyika, Zanzibar, Aden and Nyasaland (now Malawi) at one time.

The Court held its sittings in the four East African territories: Nairobi, Kampala, Dares salaam and Zanzibar to deal with appeals from the superior Courts of the respective countries. Many lawyers from Kenya were enrolled in Uganda and Tanganyika and likewise lawyers from Uganda and some from Tanganyika were enrolled in Kenya.

As expected, such lawyers were experienced, engaged and traveled to appear for court sittings. This naturally broadened the lawyers’ outlook and approach, consequently making them to think in regional terms and not only parochial to the country where they practiced.

The legislation in all these erstwhile colonies was very similar, if not almost identical, since each country the British colonized (whether in different parts of Africa, Australia, India Singapore)  was administered under an almost similar and at times identical legislation. The Crown Law Office in London had been provided with prototype legislation consisting of Orders-in-Councils and various applied Acts of general application, all ready for export and introduction in colonized countries.  Provision naturally had to be made for personal and customary law to suit the needs of different inhabitants of these countries but there was a common thread that ran through this body of legislation.

From the end of the Second World War in 1945 until the unfortunate break up of the East African Community in 1977, the legal profession, the legal establishment and jurisprudence form a very important part of the East African infrastructure and ideas.  These coupled with the interaction and meeting of advocates from different territories resulted in their thinking of themselves as East Africans rather than as Kenyans, Ugandans or Tanganyikans.

The basic infrastructure of the judicial systems within East Africa was the creation of the British system of law as practiced in Great Britain. This included acts and general application, common law and principles of equity and the body of law associated therewith.  Consequently in decision making, the court derived assistance and strength from English Case Law consisting, inter alia, the decisions of the privy councils, the House of Lords, the Court of Appeal and the High Courts in the British Isles. It also quoted extensively from the decision of the Courts and on Appeal to the Privy Council from India and the Supreme Court of India.  

The Court of Appeal for East Africa was consequently the vehicle and major force in the harmonization of a body of regional law which not only acted as a factor in the development of the law in these territories but also proved an incentive in infusing confidence in foreign investors to invest in these developing countries.

In view of the similarity of the legislation in these erstwhile colonies, the decisions of the Court helped to study, settle and integrate the law especially in matters of commerce, banking and insurance, resulting into a body of law which could safely be relied upon by a large number of businessmen and corporations enabling them to have simultaneous branches in Nairobi, Kampala, Dar-e-salaam, Mombasa, Arusha and Moshi. This in turn benefited the economic growth of these countries.

The judges of the Court brought their initial experience from the different countries from whence they hailed and also drew upon the experience imbibed in the course of their judicial appointments in these countries. This enriched the available law and helped to develop a continuity of knowledge in the delicate task of giving effect to Statute Law, whether imposed, or enacted locally, at the same time ensuring they did not impinge or encroach on personal and customary law and religious beliefs of the inhabitants. 

The judicial consideration of the commercial practice and law helped to regulate business practice and dealings, giving the law uniform direction that could be followed with certainty and confidence. Decisions on various land laws and legislation received well researched, serious and distinct consideration leading to stability in the country.  This contributed to high standards of decision making in the highest Court in East Africa (save on constitutional matters) and furthered the growth of business.

There was little constitutional law developed by the Court prior to 1960. Thereafter the Independent Constitutions of the countries barred appeals on constitutional matters to the multinational Courts. At this point it is worth recording that academic writings on law have played a significant role in shaping the development of law in the East Africa.

The setting-up of the first legal faculty of law in 1963, namely the University of Dar-e-salaam was in itself an East African venture. It served students from all over East Africa. This was followed by the University of Nairobi setting its own faculty of law in 1971 and thereafter Uganda’s law faculty at Makerere.

East African Law was taught using material consisting of various statutes in East Africa and Case law. This involved a comprehensive study and analysis of various Acts and Subsidiary Legislation pertaining thereto. At the same time students were encouraged to carry out research and study of legislation in their own individual countries.

The publication of two principal journals- East African Law Review and East African Journal further contributed to enhance the East African legal legislation. The writings and articles in these journals and the composition of the editorial Boards have all contributed to enrich East African legal literature.

The existence of the Court and its decisions have definitely contributed to the making of a high standard of professional legal practice for the benefit of and by the civil litigant and accused persons and making available access thereto. The high standard thus set continued to be observed in these countries until 1977 when they were brought to an end by the collapse of the East African Community.

The legal infrastructure that was firmly established continues to exist and the revival of the East African Community is indeed a very welcome step. It opens the doors to build on the foundations of law laid down by the old court of Appeal for East Africa. It can perhaps be done by using the structure of the East African court of Justice and widening its jurisdiction to make it as comprehensive as the participating Government may agree upon so long as it is possible to obtain agreement on the need for a court of ultimate resort to which recourse can be had from the decisions of the existing courts of Appeal in the three territories including the Supreme Court of Uganda. There has been much talk in Kenya in favour of setting up a Supreme Court which already exists in Uganda. These are matters which should be looked into in the interests of professional development, practice of law, constitutionalism, democracy, good governance, the just rule of law and the advancement, promotion and protection of human rights of all people in East Africa and beyond.

Politics aside, the best way forward, in my humble view is for the East African territories to work hard on strengthening the rule of law by having an independent Court to serve the interests of all the inhabitants and to protect it from the onslaughts of the Executive organs of the Government and politics. East Africa is blessed by God and nature. The region is rich in natural and human resources. One of the last resorts is court of law consisting of experienced judges of independent and proven integrity who cannot be swayed by anything rather than the rule of law. This will encourage foreign investment. Foreign investment is better than foreign aid. However, this is not a matter within my sphere as a lawyer. Perhaps I can be forgiven for straying from the subject.  

We must not be insular. Law, legal systems and courts do not exist in vacuum. They should not be consigned to a stagnant pond but must march with time like a running global river that continues to flow day in day out. The world has become a global village because of the great strides made in technology. The legal systems and courts in these territories should continue to be in the main streams of development of law. We should not hesitate to borrow and apply decisions of other Courts in the Commonwealth and from other jurisdictions. 

The volume and the quality of law must keep pace with time. Good judicial decisions whether on Australia, Canada, New Zealand, Britain, USA or India so long as they are sound and persuasive can be in our Courts.

There is no dearth of legal talent in East Africa. We have great talent in the various law societies in East Africa as also in the East African Law Society. We have brilliant lawyers and judges in all positions, who are more than capable of facing up to every challenge, facing the courts in East Africa.

By Satish Gautama
Satish Gautama Advocate