The EACJ hears appeal on access to the Court

On Monday, 26th January, the Appeals Chamber of the East African Court of Justice heard the appeal in the case of Democratic Party v. EAC, Uganda, Kenya, Rwanda and Burundi. The case is highly relevant to the African Court on Human and Peoples’ Rights as it seeks to challenge Uganda’s, Kenya’s and Burundi’s failure to make special declarations under Articles 5(3) and 34(6) of the Protocol allowing individuals and NGOs to bring cases before the Court.

As background, the applicant, the Democratic Party (a Ugandan political party)  challenged the failure of Uganda, Kenya, Rwanda and Burundi (“State members”) to make  declarations under Articles 5(3) and 34(6) of the Protocol, arguing that this failure was an infringement of Articles 5, 6, 7(2), 8(1)(c), 126 and 130 of the East African Community Treaty and Articles 1, 2, 7, 13, 26, 62, 65 and 66 of the African Charter.

Essentially, the Applicant argued that since the State members signed up to the Court they are also required to make the special declaration allowing individuals and NGOs direct access to the Court, an obligation also required by membership of the East African Community which requires member’s laws adhere to universally accepted standard of human rights. The Applicant explained that the EAC itself was also part of the claim since it has a supervisory role over its members and had failed to ensure they signed the special declaration. To note, when Rwanda signed the special protocol in August 2013  it was removed from the case.

The crux of the applicant’s arguments will be familiar to many interested in the Court-  the lack of access for individuals and NGOs  to the Court, which, according to the Applicant, created a “disturbing situation which as seriously affected the entire system of judicial protection of human rights at the regional and continental level” (First Instance Judgement, para. 9). The EAC and Burundi argued that Article 34(6) of the Protocol does not set a time limit on making such declarations or render the making of the declaration mandatory. Kenya argued that the EACJ had no jurisdiction to hear the case and that in any event Kenya’s judicial system is adequate to deal with human rights claims. Burundi similarly argued that the EACJ had no jurisdiction to hear the case.

Judgement was rendered in November 2013 with the EACJ finding that the EAC had done everything required by informing the countries of the claim and that there was no cause of action against it. It further found that it could not delve into the State members obligations as created by other international instruments, i.e. the Protocol establishing the Court, although it did suggest that under the EAC Treaty the EACJ has jurisdiction to consider states who fail to honour commitments made to other international organisations a decision to ensure compliance could be made as long as this does not usurp the powers of these other organs.

In any event, it found that the language of Article 34(6) of the Protocol sets no time frame to depositing a special declaration and the matter is left to the sole discretion of the State members themselves. Ultimately, the EACJ found that there was no connection between the EAC Treaty and the issue of special declarations before the Court. You can find the judgement here.

Now on appeal, the Democratic Party argues the first instance chamber erred by stating that it has no jurisdiction to entertain matter. It further argues that the African Charter is part of the EAC Treaty under Article 6 (d) and thus it allows the EACJ to look at the Charter.  It also states that under the EAC Treaty the State members undertook an obligation to observe all international obligations.  In response, the EAC repeats its arguments at first instance that the EACJ can only deal with matters of interpretation of the EAC Treaty and cannot go beyond this to consider the Protocol of the African Court. It also argued that in any event Article 34(6) of the Protocol  sets no time limit and so no delay can be found.Uganda repeated its arguments on the lack of time limits found in Articel 34(6) and Kenya similarly repeated its arguments on jurisdiction and adopted similar arguments to that of Uganda on the language of Article 34(6). Somewhat bizarrely, Rwanda was named in the appeal despite being explicitly removed upon it signing the special declaration- a point made in the appeals hearing by the Rwandan representative who asked for the EACJ Court to again remove it from the case and order costs.

It should be noted that the summary of the arguments on appeal comes from the EACJ summary found on the website here and I have not seen the appeal briefs themselves. However, it would seem that this appeal will struggle to gain much traction. Firstly, whilst the first instance court was wary of jurisdiction issues, it did go on to consider the merits of the case. Secondly, it correctly points out that the language of Article 34(6) makes no mention of a time requirement nor does it appear to be obligatory to make the requirement at all.

Whilst the issue of access to the court continues to be of great concern and must be addressed for the Court to become a truly continental one, the issue is hamstrung by the wording of the Protocol. The case brought by the Applicant brings up issues of huge merit and frustration to many. Regrettably we may not see any further debate on the meaning or interpretation of Article 34(6) since the EACJ Appeals Chamber may well reject the appeal on either jurisdiction or its apparent re-arguing of points made at first instance. We await to see if the  EACJ is willing to tackle the meaning and interpretation of Article 34(6)but I fear the EACJ Appeals Chamber will not be the place where this battle will ultimately be won or lost.