Tenure of Judges
The EACJ has an interesting tenure system. Its Judges serve on contract. At the commencement of service, a judge does not know the period of service. Two judges will serve for five years; another two for six years and only two will serve seven years. A very curious type of contract. Worse still the Court will lose its judges though drawing of lots. The picture of three Presidents picking pieces of paper from a basket to determine which judge to cease service is both hilarious and ridiculous.
This unsatisfactory state of affairs is a result of the Court being denied its own Judges. The national courts have in effect lent their judges to the EACJ. All this business of appointment of Judges by the summit is neither here or there. The EACJ comprises of part time Judges. It has no Judges of its own. This unfortunate arrangement raises some problems;
(a) Since the Judges of the EACJ are full time Judges of the national courts they are more likely to give precedence to their work in national courts. In Uganda, Judges are required by law to suspend all matters before them in case of Presidential and Parliamentary election petitions. In such a situation work at Arusha will be put on hold.
(b) All experience and knowledge gained by a judge in determining disputes between states is wasted after only 5 to 7 years. Instead of strengthening the court we in effect weaken it. As soon as new judges have mastered this new legal field, we remove them.
(c) If appellate jurisdiction is conferred to the court, a judge who sat on appeal from decisions of a national court finds himself/herself in a position where his or her decision are now appealable to the same court he once served, a most unsatisfactory arrangement.
(d) The Treaty empowers the court to issue interim orders when there is an urgent matter to be attended to without having to serve the other party. The problem is; there is no judge to hear the urgent matter.
Inactive Civil society
It has been suggested that no cases have been filed because of limited jurisdiction. It is not the only reason. The court has authority to ensure compliance with the Treaty. Judges of the court may observe instances of non compliance of the Treaty but the court has to be moved. Civil society organizations are well placed to bring public interest litigation to enforce compliance. Unfortunately they have not done so. I will give examples where I think proceedings could lie.
In the treaty which came into force in 1999, partner states agreed to establish and implement common foreign policies. The council of Ministers was mandated to set a time when this would become operative and prescribe how the common foreign policy would be implemented. In breach of this article, the Council has never set a date and no one has called the Council to order. It is only the court which can order the Council to comply with the provisions of the Treaty but no one has asked it to do so.
Recently we had drought in many areas of East Africa. Appeals were made to the international Community for assistance. Starving people struggling to survive were filmed and shown on CNN and BBC yet in 1999 the partner states agreed to initiate and maintain strategic food reserves. They said so in the Treaty signed by the three Presidents. It is 7 years since and no step whatsoever has been taken by the Community to even start the process. If proceedings were brought against the Community seeking compliance with the provision of this Treaty, the Community would at least wake up from its slumber. Activity would commerce in that area. The community would certainly not want a decision to the effect that its failure to comply with the Treaty led to the death of East Africans.
The Treaty directs the Council of Ministers to formulate a business and business related dispute settlement mechanism. This would fit in well with the Court’s jurisdiction in arbitration. The Council has never put in place such mechanism which would relate to inclusion of arbitration clauses in specified contracts not only between individuals but also between states and multinational organizations. Since the Council is in breach, only the court can enforce compliance.
Terms and conditions of service
The salary and other terms and conditions of service of a Judge shall be determined by the summit on recommendation of the Council. Independence of the court requires that determination of terms and conditions of service be vested in another body other than the Executive. There will eventually be need to establish a Regional Judicial Commission to deal with all matters of the Court.
Most of the decisions of the court will be arising out of disputes between states and individuals viz-a- viz a state. It is a great risk to allow the heads of those states the power to determine the terms and conditions of service. The political fortunes or misfortunes of a head of state in his country may well determine his view of the court and how it should operate. Consequently the court can be rendered irrelevant by the type of terms and conditions of service set. We should keep in mind that the decisions of the summit are by consensus. There is no voting.
Relationships with National courts on jurisdiction
As was noted earlier the court is vested with the jurisdiction to interpret and apply the Treaty. However it appears that national courts too have the jurisdiction to interpret and apply the Treaty there is concurrent jurisdiction in Treaty interpretation and application!!
Secondly national courts can also determine the validity of the regulations, directives, decisions or actions of the Community.
The national court may if it so wishes request a preliminary ruling on the question from the EACJ. Implicit in this, is that it is not bound to do so. What then happens if a national court interprets a provision of the Treaty and a party is dissatisfied with it? What happens if such interpretation is in conflict with an interpretation given earlier by EACJ?
The article in question was in my view badly drafted. It ought to have made it mandatory for the national court to refer any matter touching on interpretation of the Treaty to the EACJ. Thereafter the national court would give its decision in accordance with the interpretation given by the EACJ
It also does not make sense, in my humble view to vest jurisdiction to determine the validity of actions of the Community in a national court which the court may or may not seek the opinion of the EACJ. Both articles 30 and 34 of the Treaty cause legal complications.
Temporary membership of the Court
Ordinarily if a judge has an interest in a case before him, he or she will state his interest, disqualify himself and ask the head of the court to allocate the case to another Judge. The procedure in the EACJ is different and alarming. After a Judge has declared such interest and the President concurs that the interest is prejudicial he reports to the Chairman of the summit who in turn will convene the summit just to appoint a temporary Judge.
There are six judges of the court. The Treaty empowers the rules of court to prescribe for the quorum. The rules provide the quorum of the court to be three judges. Why should the three presidents meet just to appoint a temporary judge? Even in cases where the President decides that the full bench shall sit, there will be one free judge since six is an even number and a tie is something you do not wish to have in a judgment. The end result is that parties will have to wait until a summit is convened. Presently the summit sits once a year. This is a case of justice delayed and denied.
There several challenges facing the East African court of Justice. To overcome them there is need to revisit and amend the Treaty so as to remove the structural obstacles blocking the Court from functioning. Secondly there is need for more political will and willingness to cede sovereignty. If those two areas are not addressed it is not only the East African Court of Justice which is doomed but the integration process will fail for the second time, never to be tried out again.