Part 1

Introduction

The East African Court of Justice (hereinafter referred to as the “Court”) is one of the organs of the East African Community (hereinafter referred to as “the Community”) established under Article 9 of the Treaty for the Establishment of the East African Community. Other organs of the Community include the Summit of the Heads of State, the Council of Ministers, the Legislative Assembly, and the Secretariat. These organs and institutions are meant to complement each other in discharging their respective mandate and strengthen ties in the areas so far identified for cooperation, namely political, economic, social and cultural fields, research and technology, defence, security, legal and judicial affairs.

Except for the East African Legislative Assembly, which represents the legislative arm of the State and the Court, which represents the Judicial arm of the State, the rest of the organs of the Community represent the Executive arm of the State. It is hoped that the framework provided for under the Treaty will foster regional peace and security, while providing an appropriate response for economic development and competitiveness in light of globalization of trade and trans-national corporations.

When I was invited by the Chief Executive Officer of the East African Law Society to address the learned members of EALS on “litigation in the East African Court of Justice”, during continuing legal education seminars, I said to myself that the invitation was probably too much of a coincidence. The reason behind this thinking was that the Court was in the process of looking for the ways of letting its stakeholders be aware of its just gazetted and published rules of procedure and rules of arbitration. It is in forum of this kind that the Court expected to pick its stakeholders’ input after reading the draft before the Court adopted it. As you may recall the Court in 2003 got out of its legal cocoon, temporarily put aside the traditional self restrained tendency and boldly went around the region meeting its stakeholders including national bar associations, business communities, civil societies, law reform commissions and Attorneys General, to mention a few.

This seemingly unusual step taken by the Court sought to raise people’s awareness about the Court and to seek its stakeholders’ views/comments about the rules, which then were still in draft form. We met several stakeholders in Kampala, Nairobi and Dar es Salaam during the mission but we were not lucky to meet the Kenyan members of the bar nor did we receive written comments from them. Uganda Law Society and Tanganyika Law Society as national bar associations and East African Law Society as regional bar association sent their respective comments on the draft rules of the Court and the rules of arbitration. Now another opportunity has yet availed itself to us once again to discuss these rules in their adopted form though, for litigation, in any court, is governed by respective rules of procedure.

Composition

It is important for ease of understanding of litigation in the Court to have a brief background of the institution in terms of its role, composition and recruitment of its staff, for these, impact on the manner in which the Court conducts its activities. The Court as presently constituted is composed of six judges, the Registrar and other supporting Staff. Whereas the Registrar is appointed by the Council of Ministers, the judges are appointed by the Summit, two from each Partner State from among sitting judges of the national courts of judicature or from jurists of recognized competence.  Three of the present judges are Appeal Court judges, two High Court judges, and one jurist. According to Article 45 (2) of the Treaty it is the responsibilities of the Court to employ such other staff to enable it perform effectively its functions. Under the treaty therefore, the Court is given power to recruit its own staff other than the Registrar, without being interfered by the Executive. 

It is also important to note that the operations of the court during the transition period are ad hoc.  This means that judges are not permanently required to reside in Arusha where the temporary seat of the Court is located but they only convene to conduct the business of the Court as and when the need to do so arises. This includes carrying out activities like holding in-house administrative meetings as well as eventual hearing and determination of cases. This position will continue until such time as the Council of Ministers determines that the Court can be fully operational.

The Role of the Court

Adjudication and determination of disputes arising under the Treaty for the Establishment of the East African Community is the major function of the East African Court of Justice. The Court therefore, plays a crucial role in the process towards integration of East African Community. This role can be effectively realised through the Court’s effective and efficient execution of its mandate as an arbiter in dispute resolution, thereby contributing to confidence building in the region.  Invariably the Court by playing its role effectively is expected to enhance the observance and upholding of human rights through good governance and democratic institutions in the region. All these aspirations and objectives must be reflected in the way the Court conducts its activities including the rules governing litigation.

Being a judicial body, the Court’s responsibility is to administer justice and ensure the adherence to law in the interpretation and application of and compliance with the Treaty. This is the mission of the Court. It can administer justice by hearing and deciding on cases and other matters brought before it. In other words the Court is responsible for, among other things, determination of disputes that may arise out of the Treaty. The Court therefore, has a crucial role to play in conflict resolution and confidence building in the region. 

The Treaty under Articles 27, 28, 29 and 30 sets out the jurisdiction of the Court and included in that jurisdiction are references by Partner States, Secretary General and references by legal and natural persons respectively. The Treaty provides inter alia that:

 (a) The Court shall initially have jurisdiction over the interpretation and application of the Treaty.

 (b) The Court shall have such other original, appellate, human rights and other jurisdiction as will be determined by the Council of Ministers at a suitable subsequent date.

 (c) The Court shall have jurisdiction to hear and determine disputes between the Community and its employees that arise out of the terms and conditions of employment of the employees of the Community or the application and interpretation of the staff rules and regulations and terms and conditions of service of the Community.

 (d) The Court shall have jurisdiction to hear and determine any matter arising from an arbitration clause contained in a contract or agreement which confers such jurisdiction to which the Community or any of its institutions is a party; or arising from an arbitration clause contained in a commercial contract or agreement in which the parties have conferred jurisdiction on the Court.

It is the wish of the Court itself and probably many other stakeholders including members of the bar, that the presently deferred appellate and human rights jurisdiction of the Court be operationalised as soon as possible.

In formulating the rules governing litigation in the Court, due regard was paid to the provisions of the Treaty, the international character of the Court itself, need to make the rules user friendly and need to avoid problems facing litigation in national courts.

 Litigation Process

 (a) Accessibility of the Court:

Before actual litigation is commenced by a party through formal presentation of a case to the Court, a litigant has to identify a competent Court where such a case should be filed. He has to satisfy him/herself whether a particular Court has jurisdiction over the subject and whether there are preliminary requirements that he should first satisfy. Most of International Courts are not directly accessible by litigants but one has first to channel his case through Member States which upon being satisfied with the matter at issue can competently present that case on behalf of the aggrieved national.

In the East African Court of Justice, the situation is different. Unlike the procedure obtaining in other international Courts, the East African Court of Justice can be accessed by natural persons without necessarily passing through their respective governments. The Treaty provides that, “any person who is resident in a Partner State may refer for determination by the Court, the legality of any Act, regulation, directive, decision or action of a Partner State or an institution of the Community on the grounds that such Act, regulation, directive, decision or action is unlawful or is an infringement of the provisions of the Treaty”. Litigants therefore can access the Court directly on their own or through legal representation. However, where a party wishes to access the Court through legal representation by an advocate, and where an advocate wishes to appear before the Court, such advocate is required to file with the Registrar a certificate that he or she is entitled to appear before a superior court of a Partner State. Practicing certificates are renewed annually in all the three judicatures of East Africa.  This requirement has its origin from the Treaty which provides that:

“Every party to a dispute or reference before the Court may be represented by an advocate entitled to appear before a superior court of any of the Partner States appointed by that party.” (Emphasis added)

It goes without saying that, only advocates holding national valid practicing licences can appear before the East African Court of Justice while dressed “in their national professional dress.” Proceedings and all other records of the Court are in English which the Treaty declares to be the official language of the Court.

(b) Pleadings

As is always the case with any court or tribunal, a litigant in the East African Court of Justice has to state in concise form particulars of his claim including the order sought by the applicant.  For ease of reference during and after hearing of a case, there is a specific form in which pleadings and other documents prepared for use in the Court must appear. Given the importance attached to this requirement and the consequences for non compliance, let me produce the relevant rule in full:

“(1) All documents prepared for use in the Court shall be on paper of durable quality, shall be clear and easily legible and may be produced by computer, printing, lithography, stencil duplicating, photography, xerography, typewriting or any combination of these media.

(2) The pages of every document shall be numbered consecutively and shall be bound in book form where appropriate.

 (3) Whenever applicable, in all pleadings and all documents annexed thereto, the tenth line of each page shall be indicated on the right hand side.

 (4) Every pleading shall be divided into paragraphs numbered consecutively, each allegation being so far as appropriate contained in a separate paragraph.

 (5) Dates, sums and other numbers shall be expressed in figures and not words.

 (6) Every pleading or application shall be signed by the person making it or by his or her advocate or by a person entitled under Rule 15 to represent him or her.”

Any document that does not comply with the aforementioned requirements and tendered without the prescribed fee, qualifies rejection by the Registrar.