1. Introduction
This post looks at the recent decision by the Appellate Division of the East African Court of Justice (“EACJ”) in Democratic Party v Secretary General of the East African Community and others on whether signing the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and People’s Rights (“African Court Protocol”) also creates an obligation on member states to sign the Special Declaration found at Article 5 (3) and Article 34 (6) of the African Court Protocol that allows individuals and NGOs with observer status direct access to the African Court. In a nutshell, the EACJ Appellate Division found that whilst it was able to consider potential violations of the African Charter and the African Court Protocol under the premise of the East African Community Treaty (“EAC Treaty”), the wording of Article 5 (3) and Article 34 (6) of the African Court Protocol contains no requirement that a member state who has signed the Protocol must also sign the Special Declaration; a significant decision in determining how best to ensure the maximum number of people and NGOs can access the Court.
2. First Instance Division Finding
To recap, on 29 November 2013 the Ugandan political party The Democratic Party (“the Appellant”) brought a case before the First Instance Division of the EACJ against the Secretary General of the East African Community (“Secretary General”), Uganda, Kenya, Rwanda and Burundi (collectively, “member states” with Rwanda being removed from the case after signing the Special Declaration), arguing that the member states’ failure to sign the Special Declaration was a violation of not only the African Charter but also the EAC Treaty.
The First Instance Division denied the petition, finding that it had jurisdiction to ensure adherence with the EAC Treaty, but that it had no jurisdiction to interpret the provisions of the African Charter and the African Court Protocol. As to whether the member states failure to sign the Special Declaration contravened the African Charter, African Court Protocol, the EAC Treaty or other international human rights instruments that the members states had ratified, the First Instance Division found that it did not. It further found that the Secretary General had done all in its power in bringing the application to the attention of the member states and leaving the EACJ to consider the case.
3. Submissions and Responses
(i) Appellant Submissions
On appeal, the Appellant argued that the First Instance Division made three erroneous findings: (i) that it had no jurisdiction to interpret African Charter, African Court Protocol and other relevant international instruments which the member states were party to; (ii) that the delay by the members states in depositing the Special Declaration was not in violation of the EAC Treaty, the African Charter, the African Court Protocol and 1969 Vienna Convention of the Law of Treaties (“Vienna Convention”); and (iii) that the Secretary General had no duty under the EAC Treaty to supervise the member states and ensure their compliance with their obligations under the African Charter, the African Court Protocol or the Vienna Convention.
On the EACJ’s jurisdiction to interpret the African Charter, the African Court Protocol and other international instruments, the Appellant submitted that the member states are signatories to the African Charter and the EAC Treaty and that the EAC Treaty contains several provisions that create obligations for EAC members to protect human rights according to the African Charter. Therefore, the First Instance Division erred in deciding it had jurisdiction to consider application of the EAC Treaty but not Articles of the African Charter or African Court Protocol. In support, the Appellant argued that the EACJ had on several occasions held that it has jurisdiction over principles of rule of law and human rights, relying in particular on the case of James Katabazi v. The Secretary General of the EACJ.
As to the delay in depositing the Special Declaration, the Appellant submitted that since the member states had signed and ratified the African Charter and the African Court Protocol, the First Instance Division had erred when finding that the member states had no obligation to expeditiously deposit the Special Declaration. In support, it argued that Article 6 (d) of the EAC Treaty obliges every EAC member state to promote and protect “human rights in according with the provisions of the Charter”. It further submitted that under Article 126 of the EAC Treaty all member states are enjoined to cooperate in legal and judicial affairs, harmonize national laws and under Article 130 and Article 131 honour their commitments to the EAC Treaty in respect to multinational and international organizations especially the African Union and United Nations.
The Appellant further relied on the Vienna Convention, under which a Partner State cannot invoke its own internal laws to defend its failure to comply with its legal obligations. The Appellant argued that the member states failure to sign the Special Declaration is therefore not justifiable since they had already ratified the Protocol, and that by this ratification the member states had expressed their consent to be bound by all the provisions of the Protocol, therefore, in accordance with the Vienna Treaty the member states are bound to refrain from acts which would defeat the object and purpose of the EAC Treaty. The Appellant submitted that when a state ratifies any international human rights treaty, it assumes a legal obligation to implement the rights recognized in that treaty insofar that the member state undertakes to put in place domestic measures and legislation compatible with their treaty obligations.
With regards the Secretary General’s role, the Appellant argued that as the Chief Executive Office of the EAC it is mandated to play a supervisory role over member states to ensure they comply with the provisions of the EAC Treaty. It argued that the Secretary General had failed to supervise the member states to ensure they deposited their Special Declarations despite having been informed about it.
(ii) Secretary General and Member States Responses
The Secretary General responded that on jurisdiction, the First Instance Division correctly held that the right forum for this litigation was the African Court through the African Commission, and was correct to decline to interpret the African Charter and African Court Protocol. As to the delay in depositing the Special Declaration, it submitted that Article 34 (6) of the African Court Protocol does not give a deadline for depositing the Special Declaration but instead creates discretion and therefore no violation occurred. It also distinguished the present case from the Katabazi case insofar that delay in depositing the Special Declaration does no in any way constitute a violation of any provision of the EAC Treaty. As to the Secretary General’s duty under the EAC Treaty to supervise the member states to comply with its obligations, it argued that under the EAC Treaty the Secretary General has a margin of appreciation, and that since there is no time limit on the filing of the Special Declaration it was not compelled to act other than the way it did.
Uganda responded that the First Instance Division was correct, and that two legal regimes exist; the EAC through the EAC Treaty and the African Charter/ African Court Protocol. It argued that both regimes have mechanisms through which redress can be sought in the case of infringement; the EACJ and the African Court respectively. It submitted that the two mechanisms are not seized with parallel jurisdiction to handle infringements of the other instrument and that the Appellant had failed to present any evidence that the EACJ has concurrent jurisdiction with the African Court and African Commission. As to the Special Declaration itself, Uganda argued that Article 5 (3) of the African Court Protocol is silent as to the time within which a member state must deposit the Special Declaration and therefore the First Instance Division was correct to find no violation.
Kenya responded that the EACJ is a creature of the EAC Treaty and that the Appellant bears the burden to demonstrate that the EACJ has legal jurisdiction to interpret the African Charter. As to the Special Declaration itself, it argued that a delay cannot be established unless it is measurable against a time limit stipulated in the African Charter. Kenya submitted that such a delay cannot be measured therefore it is not possible to find a violation. Regarding the role of the Secretary General, it argued that the Katabazi case relied on by the Appellant is distinguishable and was not applicable in this case.
Burundi responded that the First Instance Division was correct by holding that it had no jurisdiction to interpret the African Charter and African Court Protocol, and that the EAC Treaty makes it clear that the EACJ can only interpret the EAC Treaty and not other international instruments. As to the alleged delay in depositing the Special Declaration, Burundi argued that even if, for arguments sake, the African Court Protocol did contain time limits for the deposit of the Special Declaration, and thus not depositing was a violation, the EACJ was not the proper forum to provide redress and that the right forum would be the African Court under Article 3 of the African Court Protocol and Rule 26 of the African Court’s Rules of Procedure.
4. Appeal Division Findings
With regards jurisdiction, the Appellate Division found that the EACJ’s jurisdiction derives from numerous articles in the Treaty as discussed in Independent Medical Legal unit v Attorney General of the Republic of Kenya, EACJ Appeal No 1 of 2011, and in particular noted Article 23 (role of the EACJ), Article 27 (jurisdiction of the EACJ) and Article 30 (reference by legal and natural persons). The Appellate Division stated that in view of these Articles, once a matter involves the interpretation and application of the provision of the EAC Treaty that matter clearly falls within the jurisdiction of the EACJ. The Appeals Division noted that the Appellant’s claim was that failure or delay in depositing the Special Declaration which was not only an infringement of the African Charter, African Court Protocol and Vienna Convention but also the EAC Treaty itself.
As to whether the application had “matters triable” under the provisions of the EAC Treaty, the Appeals Division answered in the affirmative. Specifically, under Article 6 (d) of the EAC Treaty member states must adhere to the principles of democracy, the rule of law, accountability, transparency, social justice and the protection of human and peoples rights in accordance with the provisions of the African Charter. The Appeals Division found that the use of the words “in accordance with the provisions of the […] Charter” creates an obligation on EAC member states to act in good faith and in accordance with the provisions of the African Charter. Failure to act in good faith would consequently be a violation of the EAC Treaty, and that such a violation can be legally challenged before the EACJ.
The Appellate Division therefore rejected the member states submissions that the EACJ cannot work outside the framework of the EAC Treaty and usurp the powers of the African Court, since the Appellant’s arguments are not in fact outside the remit of the EAC Treaty since Article 6 (d) and Article 7 (2) of the EAC Treaty in fact empower the EACJ to apply the provisions of the African Charter, the Vienna Convention and an other relevant international instruments. The Appellate Division stated that the EACJ role was to ascertain the member states adherence to the EAC Treaty provisions including the provision of other international instruments which are incorporated explicitly as in Article 6 (d) or implicitly in Article 7 (2) of the EAC Treaty. Therefore, the Appellate Division found the EACJ has the jurisdiction to interpret the African Charter within the context of the EAC Treaty and consequently the appeal was granted on the first issue.
Having found it had jurisdiction to consider violations of the African Charter and African Court Protocol through Article 6 (d) and Article 7 (2) of the EAC Treaty the Appellate Division went on to consider the Special Declaration itself. Examining the wording of Article 34 (6) of the African Court Protocol, the Appellate Division noted that it contains no specific time limit within which a member state must deposit the Special Declaration. The Appellate Division found that in fact, the wording “or any time thereafter” far from stipulating a concrete deadline provides a margin of discretion within which a member stat may deposit the Special Declaration. Therefore, a member state which has not yet deposited the Special Declaration cannot be faulted under Article 34 (6) of the African Court Protocol.
As to whether the First Instance Division erred concerning the Secretary General, it found that the Secretary General can act on its own initiative when there is an allegation of a violation of the EAC Treaty or where a member state has failed to fulfill an obligation. In this case, the Secretary General indicated that once in receipt of the Appellant’s complaint it wrote to all the member states and left the matter in the hands of the EACJ. The Appellate Division agreed with the First Instance Division that the Secretary General could do no more.
5. Comment and Analysis
To followers of the East African Court of Justice (which should include anyone interested in the African Court on Human and Peoples’ Rights) this finding keeps the EACJ’s jurisdiction broad. Whilst the member states who argued that the EACJ can only hear cases relating to the EAC Treaty were technically correct, rather than acting outside the scope of the EAC Treaty, the EACJ is very much acting within it by applying Articles 6 (d) and Article 7 (2) of the EAC Treaty which deal with international instruments. Therefore Article 6 (d) and Article 7 (2) of the EAC Treaty can be seen as a kind of vehicle through which applicants can effectively bring cases concerning violations of Charter and other international human rights instruments before the EACJ.
As to the Special Declaration itself, the Appellant’s argument at both First Instance and Appeals level boiled down to that by ratifying the African Charter and the African Court Protocol, member states are required to also required to sign the Special Declaration, and that Uganda’s, Kenya’s, and Burundi’s failure to do was therefore in violation of both the African Charter and the EAC Treaty. This was a novel attempt at trying to force member states to sign the Special Declaration and allow individuals and NGOs with observer status direct access to the Court. The attempt should be commended for testing the wording of the Protocol, but was always likely to fail. Put simply, there is nothing in Article 5 (3) and Article 34 (6) of the African Court Protocol that requires member states who sign the African Court Protocol to also sign the Special Declaration. It could easily be argued that this is a weakness of the African Court Protocol and that there should be such a requirement, but attempting to read one into the current wording is simply unsustainable. Therefore, the Appellate Division’s decision was sadly inevitable. Moving forward, it seems appropriate to recall that currently only seven member states allow individuals and NGOs with observer status direct access to the African Court. Despite the need to dramatically increase this number, there seems little traction in further attempts to read into the current articles any kind of requirement or time limit. Instead, success in opening up access to the African Court seems more likely either in amendment to the current articles or, more likely, attempts at national level to urge member states who have signed the Protocol to also sign the Special Declaration.