Mihreteab Tsighe holds Ph.D. from the Centre of Excellence for international Courts (iCourts), University of Copenhagen and teaches international law at the School of Law and Federalism, ECSU, Ethiopia. He regularly writes on the work of African regional courts. He focuses mainly on evolution of international courts, the interaction between law and regional integration, the role and power of lawyers in regional integration, the increasing importance of supranational legal institutions and regional integration.
The EACJ has a special mandate in the institutional set up of the East African Community (EAC). This blog post deals with the jurisdiction, case law and recent developments in the East African Community Court of justice. The court has been criticised for not having more economic law cases in its docket. The overwhelming majority of cases relate to matters that relate to human rights, an area that the Court has no official mandate yet to adjudicate. Following the rule of law violation cases are cases relating to institutional matters. Although the docket of the courts is full of these two categories of cases, this blog post reveals that the court has started to rule on economic law matters bringing back in its original economic law jurisdiction.
Jurisdiction
The EACJ is the judicial organ of the EAC. [Article 23of the East African Community Treaty (EAC Treaty)] The Court has a First Instance Division, and an Appellate Division and its role are to ensure the adherence to law in the interpretation of and application of the treaty. [Articles 23 and 27] The Court is composed of a maximum of 15 judges appointed by the Summit. [Article 24] The Court has jurisdiction in cases brought by the Partner States, the Secretary-General, and legal and natural persons. Also, the Court holds jurisdiction in disputes between the Community and its employees; it is empowered to give advisory opinions, and it may, upon request, serve as an arbiter; it may, upon request from national courts, give a preliminary ruling on matters of the treaty. [Articles 28, 29, 31, 32, 34 and 36] The treaty provides that the Court shall have such other original, appellate, human rights and other jurisdiction as should be determined by the Council at a suitable date. [Article 27(2)] Following this, in 2015 the Court’s jurisdiction was extended to cover trade and commercial disputes and disputes arising out of the implementation of the Protocol on the Establishment of the East African Monetary Union leaving out human rights matters.
Case Law of the EACJ
Function-wise, today the work of the EACJ may be roughly divided into three main groups:
- Rule of law violations: The Court has repeatedly decided human rights-related matters in the framework of the rule of law and governance principles enshrined in the EAC Treaty. It is incontestable that the Court does not have an official human right jurisdiction. Nevertheless, its power to interpret the treaty is intact, and this includes interpretation of article 6(d)[ good governance including adherence to the principles of democracy, the rule of law, accountability, transparency, social justice, equal opportunities, gender equality, as well as the recognition, promotion and protection of human and people’s rights in accordance with the provisions of the African Charter on Human and Peoples’ Rights] either alone or in conjunction with Article 7(2).[ The Partner States undertake to abide by the principles of good governance, including adherence to the principles of democracy, the rule of law, social justice and the maintenance of universally accepted standards of human rights.] The relevant case-law of the EACJ has a solid legal basis in Article 6(d) and 7(2) of the EAC Treaty.
- Community matters: These are types of actions that challenge community organs. It is this type of case that put the EACJ into motion when it decided its first case, the Mwatela case, addressing procedural matters arising from the tasks of the organs of the community, mainly the Council and the Assembly.
- Economic matters: There is generally an absence of economic cases before the EACJ. However, recent developments show that the court has started to decide economic cases. The tow cases related to Economic matters are the Grands Lacs Supplier S.A.R.L and Others vs. The Attorney General of the Republic of Burundi, and British American Tobacco (BAT) Ltd Uganda V Uganda.
This division exemplifies the EACJ’s different types of work, but it is not the only type of work the Court does, nor is it necessarily a classification of its body of jurisprudence. Apart from the three main groups related to subject matter jurisdiction, there is also the ‘left-over’ jurisdictional task of the EACJ. The most notable amongst these other tasks of the EACJ are Advisory opinion, preliminary reference and arbitration jurisdiction. While the EACJ rendered two advisory opinions, it has received only one preliminary reference to date. The EACJ has not used its arbitral jurisdiction yet.
On the whole, the order in which the three main types of EACJ activity have been set out reflects how strongly each category is represented within the overall docket of the EACJ today. In the last two decade, one may notice a distinct rise in the number of the rule of law violation cases. Almost all cases decided by the EACJ are about the violation of the rule of law principles enshrined in the EAC Treaty. Thus, in a way, a transformation of the EACJ into a human right jurisdiction mostly shied away from Economic Law matters, and instead concerned itself primarily with the interpretation of the Article 6 and 7 of the treaty on the rule of law and good governance.
The EACJ and the African Charter
Subject-wise, the EACJ has drifted away from principally being an economic court. Most of the EACJ’s consideration was devoted to the same ‘unusual suspects’, namely rule of law violations, detention, and freedom of the press.
As the EACJ remains, predominantly, a defacto human rights court after the Katabazi Case and as far as the overall subject matter of its docket is concerned; there has been a considerable change as to how human rights issues are discussed in the recent case law of the Court. In the case of the Democratic Party, the EACJ explicitly held that it has jurisdiction to interpret the African Charter on Human and Peoples Rights (ACHPR) in the context of the EAC Treaty. The essence of the case was that the applicants claimed that Burundi, Kenya, and Uganda violated the EAC Treaty because of the lengthy course of depositing instruments of declarations regarding the Protocol that established the African Court (the Protocol) Precisely, the petitioners claimed that such delays amounted to violations of the EAC Treaty and the ACHPR. The EACJ First Instance Division rejected the case reasoning that its sole jurisdiction is to ensure the adherence to the law in the interpretation and application of and compliance with the EAC Treaty. It explicitly held that it does not have jurisdiction to ensure compliance with the ACHPR and the Protocol. On appeal, the matter for the Appellate Division was to determine whether there was an error of law in the judgment of the First Instance Division. According to the EACJ Appellate Division, Articles 6 (d) and 7(2) of the Treaty endow the Court to apply the provisions of the ACHPR, the Vienna Convention, or any other applicable international instrument, to guarantee the Partner States’ adherence to the provisions of the Treaty, and provisions of other international instruments to which the Treaty refers. The role of the Court is to determine the Partner States’ adherence to, observance of, and/or compliance with the Treaty provisions as well as the provisions of any other international instruments incorporated in the Treaty, whether directly as in Article 6(d), or indirectly as in Article 7 (2). Although it has not yet claimed to have human right jurisdiction, its reasoning reveals it is close to that.
Nevertheless, one can safely argue that the Appellate Division decision in the Democratic Party case has influenced the First Instance Division in the Mseto case. The First Instance Division determined the case of freedom of the press and freedom of expression through the interpretation of the African Charter and International Covenant on Cultural and Political Rights (ICCPR). The Court found Tanzania failed to establish how the publication in the Mseto newspaper violated the interest of the public, or the interest of peace and good order of the people. This lead to the conclusion that the order to ban the newspaper violated the right of freedom of expression enshrined in Article 18(1) of the Tanzanian Constitution, or as stipulated in Articles 19(3) of the ICCPR and 27(2) of the African Charter. Moreover, for the Court, the order to ban the newspaper violates the principles of democracy, good governance, and the rule of law. Tanzania acted unlawfully, by issuing orders based on mere “opinions” and by failing to recognise the freedom of expression and the press as a basic human right under the provisions of the African Charter. The Court stressed the binding nature of Article 6(2), 7(d) and 8(1) of the Treaty by declaring these provisions as not merely aspirational. The provisions are justiciable and generate obligations to the Partner State to respect the principles of good governance and the rule of law, which include accountability, transparency and the promotion, and protection of democracy. The Court found a violation of these principles. The court recognised that the rights to press freedom, to receive and impart information are not absolute.
Nevertheless, the restrictions against the newspaper were unlawful, disproportionate and did not serve any legitimate or lawful purpose. The Court has held that Tanzania acted in breach of the Treaty, it decided that an unlawful act must be followed by an act taking the parties to the state of affair that existed before the banning of the newspaper. As a result, the Court ruled for the resumption of the publication of Mseto.
Although this development might have widened the already existing narrow door for human rights cases via a rule of law violations, it would be interesting to see the Partner States’ reaction as they have delayed the extension of human right jurisdiction of the Court. Indeed, it seems that the time for substantive human right cases appearing in the Court is ripe and the court has taken cases that fall under articles 6(d) and 7 (2) to another level by determining the Mseto case.
Recent Developments: Bringing Back the EACJ’s Economic Law Jurisdiction?
Much of the debate as to whether the EACJ is an economic court might have thus been perhaps caused by the general absence of economic cases and by the sheer presence of a violation of the rule of law cases. The overall debate concerning the jurisdiction of the EACJ today might be affected with two recent economic decisions of the Court, the Grands Lacs Supplier case and the British American Tobacco (BAT) Ltd Uganda. In both cases, the ECAJ handed down rulings which may prove for the Courts as returning to its roots. In these, cases, the court came out of its shell and exposed its nature of an economic court. In the Grands Lacs Supplier case, the applicant challenged Burundi for allegedly (unlawfully) seizing the applicant’s goods in violation of the fundamental principles and objectives of the EAC Treaty and the Protocols on Customs Union and Common Market. The applicants argued that the seizure hinders the free movement of goods by Partner States’ nationals across their borders. The Court ruled that the decision to seize the Applicants’ goods without due process violated the rule of law stipulated in Articles 6(d) and 7(2) of the Treaty. In exercising its judicial discretion in light of the facts and the circumstances of the case, the Court awarded general damages to the applicants.
In the British American Tobacco (BAT) Ltd Uganda case, the EACJ ruled the imposition of new excise duty law over imported cigarettes within East Africa violated the East African Community Treaty (EAC Treaty), the Customs Union (CU) and the Common Market(CM) Protocols. The British American Tobacco (BAT) Ltd Uganda, challenged the Government of Uganda over the Excise Duty (Amendment) Act of 2017. Uganda issued tax assessment notices based on the Excise Duty (Amendment) Act of 2017, imposing the payment of excise duty for its Kenyan made and cigarettes and imported to Uganda.
According to the Court, designating the cigarettes as ‘imported goods’ is a misconstruction and a wrongful re-classification, and it violates the EAC Treaty, the CU Protocol, and the CM Protocol. Besides, the court ordered the government to ensure the interpretation and application of Excise Duty Act with due regard and in compliance with applicable Community Law and to align the Ugandan tax laws with Community Law applicable to goods from the EAC Partner States.
The case-law of the EACJ reflects the interest of parties to cases. When more parties bring cases of human rights matters, the court resembles a human rights court. When more parties bring economic law cases, the Court resembles an economic court. Human rights-related cases in the framework of the rule of law moved the EACJ forward and allowed it to make its distinct imprint the protection of human rights and the rule of law. It seems the time has now come for further evolution of the Court with the decisions on economic law cases. Today, the EACJ arguably has the ambition to become more than a ‘one-sided-defacto human right-court’. Taking into account the already discussed rise of the human rights cases and the recent economic law decisions, the EACJ is on the verge of becoming a genuine international Court significant for human rights and economic integration.