The treaty for Establishment of the East African Community defines the role of the East African Court of Justice (EACJ)as ensuring "the adherence to law in the interpretation and application of and compliance with this Treaty." This role is exercised through delivery of judgments arising out of matters referred to it by partner states, the Secretary General or any person resident in East Africa. It is done in the context of the main objective of the Community described as developing policies and programmes aimed at widening and deepening co-operation among the partner states in political, economic, social and cultural fields, research and technology, defense, security and legal and judicial affairs.
In light of the above, the court is faced with heavy responsibilities at every stage of the integration process. In this respect it is different from the national courts. Whereas the national courts are essentially for dispute resolution, the EACJ in addition to dispute resolution is mandated to work towards attaining the objectives of the Treaty. It is one of the organs of the community and cannot therefore distance itself from the objectives of that community. The last five years have revealed that the court faces many challenges.
Inadequate financial resources
Lack of adequate financial resources has stagnated development of the court. Up to now, no sub-registries have been established in the partner states. Neither has equipment been purchased nor staff employed to man them. As a result, access to the court is severely limited. An aggrieved party in Arua (Uganda), Mandera (Kenya) or Mbeya in Tanzania has to travel hundreds of miles just to file a case. Many would be litigants will simply give up because of the distance, cost and inconvenience. The prospect of having to cross two international borders to file a case is very unnerving to an ordinary citizen.
Secondly, though the court has authority to employ staff at Arusha, it has been unable to do so. There are no librarians, researchers, technicians or personal assistants for at least the President and Vice President. How can we expect efficiency and timely service delivery when the court has no secretariat to support it? You only have to call at the court to understand the trials and tribulations of the Registrar in this almost one man staff court.
Thirdly, although the Treaty provides that the President of the court directs the work of the court and regulates the disposition of matters brought before the court, the president is rarely to be found at the court. How then shall the President direct the work of the court when he is not at the court? The President is unavailable because the Budget of the community sets the number of days the Judges will be in Arusha. Outside the set days, there is no money. This is the only court I know of where Judges do not have residences within driving distance of court. They have to stay in hotel rooms strictly for days set in the budget. If they go beyond those days, they have to pay themselves. East Africa cannot afford to rent even one house for the president of the court in Arusha.
Fourthly, this court is unique in Africa and is vested with jurisdiction which calls for reference to similar courts. There is need for a well stocked library. This is necessary for the court to reach decisions which a state (however aggrieved) will accept. East Africans are still looking for money to furnish the court with a library.Lastly, the EACJ has a courtroom similar to a Magistrate’s court in terms of size. In fact some magistrate’s court rooms are larger. However that is what the court can afford at the moment.
How come East Africans have failed to provide sufficient resources to the court? The answer lies in structural defects in the Treaty and also human weakness. The East African legislative Assembly lacks one fundamental function found in any legislature - the power to raise revenue. Legislatures, through enactment of the Finance Act, annually raise revenue and direct the Executive when and how it will be spent the money allocated through the Appropriation Act.
The East African Community relies on contributions from partner states. The Assembly is unable to make provision beyond what is contributed by the states. The provision in the Treaty which appears to empower the Assembly to debate the budget is therefore misleading.
Perhaps the situation would be better if the council of Ministers exercised its powers under the Treaty and considered the budget prior to its introduction in the Assembly. At that level the council could make a difference by making meaningful provisions for the Court. As it is, the council of Ministers has abdicated its responsibilities and become a rubber stamp. It merely endorses what the technocrats from the three countries determine. The technocrats are the real decision makers on what will be available to the court.
As long as the legislature pretends to debate the budget and the Council of ministers make wrong decisions, the EACJ will continue to be under-funded and therefore unable to meet the expectations of the people of East Africa.
It is provided that the court shall have other original, appellate, human rights and other jurisdictions as may be determined by the Council at a suitable date. When this date will be and how it shall be arrived at is a matter at the discretion of the Council. It could either be tomorrow or the year 2050.In May 2002, when a member of the Assembly asked the chairman of the Council of Ministers what date the jurisdiction of the court would be extended, the Minister gave a curious answer. He said the court should first do some work before jurisdiction is extended. It is 4 years since and no jurisdiction has been conferred.
We are informed that a protocol will soon be concluded to this effect. My understanding of the Treaty is that the question of extended jurisdiction is already settled. The court shall have it. Only the date remains to be fixed. Do you need a protocol to fix a date? The council should determine the date. The bills introduced in the Assembly shall spell out the details of the appellate jurisdiction. There is no need for a protocol because the parties already agreed that the court would have other jurisdiction and spelt out that jurisdiction.
On 24th April 2001, H.E. Daniel Arap Moi, H.E Yoweri Museveni and H.E Benjamin Mkapa signed the East African Community Development Strategy 2001-2005. The important document that carried promises has a policy action matrix which states the policy, the action to be taken, the time frame and the lead implementing agency. There is only one sentence about the Court: "put in place a functioning EAC court of Justice." Beyond that, nothing in terms of policy on the court. Not even a date for extended jurisdiction, yet other sectors have details on the strategy.
The people of East Africa are likely to wait for a long time before they appeal to the EACJ for decisions of the national courts or come directly to the court in respect of human rights violations. The court’s hands are tied. It can do nothing.
Relationship with the Executive
Who speaks to the Executive on behalf of the court? The doctrine of separation of powers goes a long way in ensuring good governance if properly applied. The arms of government though independent relate to each other by way of checks and balances. Accordingly, there has to be a methodology by which they relate to each other. In partner states, the Attorney General or Minister of Justice who may sit in cabinet plays the role "speaking for" the court and also for "Government" when interacting with the Chief Justice. There is an exchange and flow of information between the two arms. Many problems are resolved this way.
In East Africa, the Executive is the Council of Ministers. However there is total separation in the real sense between the Executive and the Court. There is no mechanism through which there is a flow and exchange of information. Secondly the Council by Treaty only meets twice a year. Even when the Council meets, it is for a short period of three or so days.
Recognizing this problem, the East African Legislative Assembly passed a resolution calling for establishment of practical working relationship between the Court, the Assembly and the Council of Ministers. Unfortunately it never took off because of bad working methods at the Secretariat. The Court therefore has a problem relating to the Executive. Its problems are practically unknown to the Executive, which is supposed o address them.
To be continued