Introduction
- International law comprises of those rules and norms that regulate the conduct of states and other entities which at any time are recognized as being endowed with international personality. States enter into relations for various reasons; political, economical, or social.It is case of East Africa; states have entered into cooperation mainly due to economic reasons as well as political reasons. It is necessary to understand the meaning of both regional integration and regionalism and its applicability in EAC.
- Regional integration can be described as the process whereby political actors in several distinct national settings are persuaded to shift their loyalties, expectations and political activities towards a larger centre whose institutions demand a jurisdiction over pre-existing national state.
- Regionalism on the other hand can be termed as process of building multilateral institutions to enhance political, security and economic interactions among states. This can be advised by the main objectives of establishing a particular international institution.
These two aspects give rise to the establishment of EAC. This is intended to lead to cooperation on many sectors within the partner states. The treaty sets out the objectives of the community under article 5 and establishes principles as to how the objectives are to be achieved and this is under article 6 and 7 of the treaty. In order to achieve this, the treaty establishes various organs to carry various functions as stipulated within the provisions of the treaty. This organs act as engine that translate the provisions of the treaty into more practical sense.
The EAC organs are established under the treaty and their mandate stipulated within its provisions. These organs include; Summit, Council, East African Court of Justice and East African Legislative Assembly.
The Summit
Establishment
The summit is established by virtue of article 9 of the treaty. The summit is accorded power to establish other institutions of the community such as bodies or departments which may provide services.
Composition
The summit is composed of the Heads of States or Government of the Partner States. Where a Head of State may fail to attend the meeting of the summit and the postponement of the meeting is not possible, he may appoint a minister of Government after consultations with other Heads of States with whom the powers, duties and responsibilities are given for the purposes of that meeting alone.
Function
The main function of the summit is to give directives as to the development and achievement of the objectives of the community. They also keep an eye on the development of the community in the Regional integration scheme and the state of peace, security and good governance. This involves receiving of annual reports on the progress made from the council. They may also conduct any other function as may be stipulated in depth in the treaty.
Summit effects towards regional integration in East Africa.
Contributions;
There are various ways where Summit as an organ of EAC has contributed to the regional integration and effected positively towards the attainment of the objectives of the community as provided for under article 5 of the treaty. Its composition contains representation from all the partner states and hence reflects the face of the community. The decisions made therefore by the organ are deemed as resolutions of the EAC community. This enhances togetherness and cooperation among partner states.
There is also the office of the chairman in the Summit. One of the Head of States occupies the office where the tenure of office is one year and it is held on rotational basis among the partner states. This ensures non-discrimination and equality and in return results to smooth running and realization of the objectives of the EAC.
The decision of the summit is by way of consensus. This means that there is agreement among the Heads of States before making of any decision. This ensures that there is peace, security and contentment within the partner states due to wholesome agreement of the Summit.
As mentioned earlier, the summit may resolve to put in place institutions that may provide services within the community. This may in return allow the movement of people and skills within the community resulting to development and creation of wealth by states within the territories of the community. An example of these institutions already in place are; Inter-University Council of East Africa, CASSOA, LVBC, EACCA, EAKC, EAHRC and EADB.
Hindrances;
To some extent the Summit as an organ of EAC has hindered in one way or another achievement of the community objectives. Similarly various factors within the organ have led to under-achievement or have contradicted the objectives and principlesof community as stipulated in the treaty.
As much as the consensus as a mode of decision making plays a role in contributing to integration process in the EAC, it also plays a hindrance role where unwilling partner states may drag other partner states in realization of a particular project laiddown. Consent is important in decisions involving developments to be put in place within the community. The principle of variable geometry was intended to remedy the problem of such nature. This principle seeks to allow partner states in an integration bloc to implement integration projects at different paces. In the context of EAC, there was an issue before EACJ on the application of the principle where Kenya, Uganda and Rwanda under the tag “Coalition of the Willing” sort to put the principle into action in exclusion of Tanzania and Burundi on matters concerning growth of EAC in the integration scheme index, regional investment, removal of tariff barriers and infrastructural development. This was not received well Tanzania and Burundi. The Council of Ministers of the East African Community sought an advisory opinion from EACJ which stated that for the principle to apply there must be a consensus among partner states prior and hence particular partner states in an integration bloc may take different paces in achieving the project agreed on by way of consensus.
The Summit is obligated to meet at least once in every year. In practical terms the summit meets once a year and this hinders the integration process. This limits time frame on the discussion on the matters concerning integration in the EAC hence acting as hindrance.
The Council
Establishment;
Established under article 9 (b) of the Treaty for the Establishment of the EAC. It is therefore deemed as one of the organ of the community.
Composition;
The Council is composed of the Minister responsible for East African Community affairs of each partner state. It may also consist of such other minister of the partner states as each partner state may determine. It also consists of the AttorneyGeneral of each partner state.
Functions;
It is mainly the policy making organ. It also focuses on the promotion, monitoring and constant review of the implementation of the projects of the community and ensures the proper functioning and development of these projects in accordance with the provisions of the treaty. The Council may request advisory opinions from EACJ and may publish Gazettenotice on directives or regulations made or given by it under the treaty and hence the regulation comes into force on the date of publication. The functions of the Council are provided for in depth in the treaty.
Contributions and hindrances of the Council towards integration process
Contributions;
The Council as an organ has played some roles in hastening the integration process.
Similar to the Summit, the Council draws its members from all partner states. The ministers are representative of their states and hence they convey the interests of their states in the Council and lay the agenda of their respective governments in the table during the meetings. There is also representation of all the partner states by respective Attorney Generals. Basically Attorney Generals plays then role of advocacy representing the government of every partner state. This ensures that the legal issues of partner states are catered for within the functioning of the entire community.
The AG also may appear in any tribunal concerning the EAC affairs as a representative of a particular partner state drawing interest from the issue at hand. This also reflects equality among partner states and appreciation of sovereignty by state towards other partners states within the community. Similarly one of the functions of the council is to consider budget. Subsequently the budgets for respective partner states is approved after the approval of the EAC budget by EALA and hence the ministers within the Council assist in aligning the budgets of their respective states with the objects of EAC budget in a particular financial year. This is aided by the representation of all partner states within the council.
The council plays the role of policy making to enable efficient and harmonious functioning and development of the community.This is in spirit of the necessity of making policies to further the objectives of the community. It is also mandated with the making of rules and regulations concerning finances. This gives effect to the fundamental principle of good governance in terms of accountability and transparency. It is evident that the council plays a role in achievement of objectives and implementation of principles of the EAC. This in return, contributes towards deepening of integration within the community.
Hindrances;
The Council as an organ may hinder the integration process through various ways and hence may delay the achievements of the community objectives in one way or another. The main challenge faced by the Council in performing its functions is that it lacks independence in its mandate. This is mainly due to the interference by the Summit and although being the policy making organ it is required to implement the decisions and directives of the Summit as may be addressed to it from time to time. This means the Council is subject to the Summit and mainly involves itself with the directives of the Summit. This may hinder its functions as provided for by the treaty as it may be subject to manipulation by the Summit. This is in sense that it may be forced to implement directives that may be detrimental to the community and this ultimately may hinder the integration process.
Under article 27 (2) of the treaty, it was intended that the partner states through the Council accord the EACJ with further jurisdiction on other matters not within the scope of EACJ jurisdiction as provided for in the treaty. This was by way of putting in place a protocol to operationalise the extended jurisdiction. The rationale was to enable the court to entertain various matters in realization of the objectives of the community through the fundamental principles of the community. However, the Council never considered the issue of concluding the protocol and the court was faced with a case concerning human rights. The Respondent party argued that the court lacked jurisdiction to hear matters of human rights. The court stated that it will not abdicate from exercising its jurisdiction of interpretation merely because the reference includes allegations of human rights violation. Although the court allowed the matter to be heard, this demonstrated reluctance of the Council to fulfill the treaty obligations and hence hindering the integration process.
As discussed before, the decisions of the Council is by way of consensus similar to the Summit. This requires agreement from all the stakeholders and where there may exist different opinions, the delaying of the integration process is imminent. This is due to requirement of the treaty, where objection may be raised by a member of the council who is the leader of the delegation of a particular state within the council and subsequently recording of his objection to a proposal submitted for the decision of the Summit and in consideration of the objection. This as a result may take a longer time and hence hindering integration process.
The Council is obligated to meet twice a year within which one of the meetings is held immediately preceding a meeting of the Summit. This again provides the Council with limited time in laying down mechanisms of implementing directives of the summit and performance of its functions.
The East African Court of Justice
Establishment;
Established under chapter 3, art 9 of the treaty. As an organ of EAC, EACJ contains four core values, namely; independence, integrity, impartiality, respect for the diversity. Its main function is drawn from its vision as a world class court dispensing quality justice for a united prosperous community. In its mission, it seeks to contribute to the enjoyment of the benefits of integration by ensuring adherence to justice, rule of law and fundamental rights and freedoms through the interpretation and application of and
compliance with East African law. The court is divided into two; First Instance Division and Appellate Division.
Composition;
It is composed of a maximum of fifteen Judges of whom not more than ten shall be appointed to the First Instance Division and not more than five shall be appointed to the Appellate Division. Judges are appointed by the Summit from among persons recommended by the Partner States and who are of proven integrity, impartiality and independence. They must be able to fulfill the conditions required in their own countries for holding of such high judicial offices.
Function;
It is the judicial organ of the EAC and plays the particular functions enshrined in treaty in terms of adherence of law in interpretation and application of and compliance with the provisions of the treaty.
Jurisdiction;
This basically means the power or authority a judicial body is equipped with in carrying out its functions. A court can only function within its jurisdiction and where it takes notice on lack of jurisdiction on a particular matter, it must down its tools. EACJ in this context withdraws it jurisdiction from the treaty. The court has original jurisdiction on the interpretation and application of the treaty. The Council may also determine any other original, appellate, human rights and other jurisdiction to be accorded to EACJ. This is to give the EACJ jurisdiction on various matters that may arise concerning the community and this can be termed as operational extended jurisdiction. The extended jurisdiction can be put in place by concluding a protocol in relation to the matter before the court.
EACJ influence to the integration process in EAC
Contributions;
One of its functions is to ensure peaceful resolution of disputes concerning interpretation and application of the treaty. This may between partner states, community with its employees and individual people in matters enhancing the provisions of the treaty. In the case of African Network for Animal Welfare(ANAW) v Attorney General of Tanzania, the government of Tanzania had intended to construct a highway along Serengeti National Park. The Maasai Mara National Park in Kenya would have suffered greatly. This would negatively impact the environment and infringe the provisions of the treaty. The court granted a permanent injunction prohibiting the construction and by this halted an inevitable dispute between Kenya and Tanzania. The court plays a critical role in integration process as it arbitrates disputes arising within the community.
The court also enables the achievement of the objectives of the community by making decisions on the issues concerning the principles, both fundamental and operational and this keeps the community on course to attainment of cooperation, integrationand regionalism. This was evident in the case of Katabazi as discussed before, where the court enhanced the principle of good governance in respect to recognition, promotion and protection of humans and peoples rights and this is in accordance to African Charter on Human and Peoples’ Rights (ACHPR).
Similar to other organs discussed in terms of equality in its composition, the EACJ is composed of Judges from all partner states. This is due to the appointment by the Summit. The President and the Deputy President in the EACJ, Appellatedivision and Principal Judge and Deputy Principal Judge in the EACJ, First Instance Division must not be nationals of the same state. This provision ensures representation of four different partner states at any particular time. The tenure of any Judge appointed by the Summit shall not exceed a maximum period of seven years. This demonstrates equality among the partner states and hence fostering unity among them.
There is no requirement for exhaustion of local remedies. There is due to creation of the First Instance Division which has original jurisdiction to hear matters concerning the community at first instance. This helps in fair and quick expedition of cases. A matter involving similar situation was experienced in the case of Mike Campbell (pvt) v Republic of Zimbabwe. There was forceful and illegal acquisition of land from the whites who had settled in the country since independence period. The complainant, Mr Campbell lodged a complaint with the SADC Tribunal and the respondent, State argued that the complainant never exhausted the local remedies available. The Tribunal allowed the issue to be had and quashed the submissions on lack of exhaustion of local remedies by the Respondent. This was because the Tribunal would hear such matters at first instance and also the local remedies would have been compromised. The Tribunal hence invoked its original jurisdiction. In the EAC context this may be of great help in aiding integration process due to hastened manner in which disputes arising can be resolved.
There is also decentralization of Court Registry functions. The main Registry of the EACJ is in Arusha, Tanzania. There is also Sub-Registries in Bujumbura, Dar es Salaam, Kampala, Kigali and Nairobi. This helps in devolvement of Registry function more nearer to the people and hence more ease in providing legal services to the people.
Hindrances;
EACJ as an organ of EAC has rarely hindered the integration process of the community. The main hindrances would be lack of visibility as people in the EAC lack awareness.
This in return, may result to isolation of the objectives as many people may lack knowledge of knowing rightful avenues of lodging complaint or seeking advisory opinion on matters concerning the community. The court however seeks to counter this challenge by enhancing growth and visibility and this is under EACJ Strategic Plan.
Other challenges faced by EACJ are as follows; lack of enforcement mechanism, limited budget, two months limitation period within which a matter should be lodged in the court and failure may result to closure on the hearing of the issue. The court has limited jurisdiction to some extent. This challenges as highlighted may hinder integration process.
East African Legislative Assembly
Establishment;
Established as an organ of the community under Article 9 (1) (f) of the Treaty Establishing East African Community.
Composition;
The membership of the Assembly shall comprise of nine members elected by each partner state. It shall also comprise of ex-officio members consisting of Minister and Assistant or Deputy Minister responsible for the East African Community affairs from each partner state. The organ shall also comprise of the Secretary General and the Counsel to the community.
Functions;
It is the legislative organ of the community. It debates and approves the budget of the community; consider annual reports on the activities of the community. It also may perform any other function conferred to it by the treaty. The functions above are non-exhaustive and are provided in depth in the treaty.
Effects of EALA in the integration process,
Contributions;
EALA as an organ of EAC exhibits sense of equality. This is evident in its composition where it draws nine members from each member state. The office of the speaker of the assembly is held on rotational basis by the elected members from themselves to serve for a period of five years. This brings unity and cooperation and as a result aids in integration process.
One of the roles of EALA is to consider annual reports on the activities of the community. This includes annual audit reports of the Audit Commission. This is in spirit of fundamental principle of good governance in respect to accountability and transparency.
Hindrances;
Assent of bills takes longer time. This is due to requirement of consent from all Heads of States. The bill has to be taken to all partner states and only after signing by all the Heads of State it comes to force. This may hinder the integration process as bills passed to the benefit of the community may take longer before they are enforced.
Although there is equality in representation of partner states in EALA, to some extent this has not been the case in reality in determining representatives of a particular partner state. The treaty provides for mechanisms of appointing the Legislative members of EALA. This is in the sense that the appointment may be based on cronies rather than competent individuals fulfilling the provisions of the treaty. The appointment may be based on rewards to political loyalists. In the case of Peter Anyang’ Nyongo v Attorney General and 6 others, the mainissue was the appointment of the legislative members of EALA where people centeredness principle was in question. The appointment process had not been properly followed as set out in the treaty. The appointment was quashed as it had violated the provisions of the treaty.
The assembly may use its powers vested on them by the treaty to frustrate the objectives of the EAC. This is mainly through its legislative powers. There have been several instances in the past where there were voices of amendment of the treaty to suit interests of no help to the community. This was witnessed in a case where the issue was amendment of article 50 of the treaty in order to limit court powers.
Conclusion
The EAC organs play a key role in achievement of the objectives of the community and in deepening integration process. There functions are well articulated in the treaty to enable a functional institution and which achieves its aim. Summit, Council, EACJ and EALA in particular represent the three fundamental bodies of any governing entity; executive, legislature and judiciary and this aid in integration process. Within these organs there exist hindrances to integration process. These hindrances prove that the EAC is in the process of growth and that realization of its objectives is well on course.
