EACJ in Customs Union and Common Market

ROLE OF THE EAST AFRICAN COURT OF JUSTICE

IN THE REALIZATION

OF CUSTOMS UNION AND COMMON MARKET

Dr. John Eudes Ruhangisa

Registrar,

East African Court of Justice

A Paper for Presentation During the Inter-Parliamentary Relations Seminar

(Nanyuki - V - ) to be held at Burundi National Assembly, Bujumbura,
Burundi, 27th – 31st January, 2010

  1
 EACJ in Customs Union and Common Market

Introduction

It is a huge pleasure for me to have been given today the opportunity to

address you on the topic “The Role of the East African Court of
Justice in the Realization of the Customs Union and Common
Market”. I wish to express my sincere gratitude to the Hon. Speaker of
the East African Legislative Assembly in this regard for the invitation.

As you are aware, the East African Court of Justice (EACJ) was
established under Article 9 of the Treaty for the establishment of the East
African Community (the Treaty) and formally inaugurated on 30th
November 2001. Almost Nine (9) years have now lapsed since the first
EACJ Judges were appointed. The EACJ spent a number of years trying
to get its feet on the ground thereby experiencing what may be
considered as teething problems. It developed its Rules of Procedure, the
Rules of Arbitration and heard cases that were presented to it among
other things.

In the process of the regional integration on which the East Africa

Community has embarked, one would expect the EACJ to play an
instrumental role not only through peaceful settlement of disputes, but
more importantly by contributing to the harmonization of the laws of
Partner States through development of jurisprudence in the region.

The East African Community celebrated last year (2009) its tenth
anniversary which was mainly marked by two major achievements of the
Community: the adoption and signature of the East African Common
Market Protocol and the end of the transitional phase for the Customs
Union (1 January 2005- 31 December 2009). These are two important
phases of the EAC integration which are expected to be the fundamental
basis for the next two phases namely the Monetary Union and the
Political Federation.

  2
 EACJ in Customs Union and Common Market

This leads me to the question which this paper attempts to answer,

namely, “What is the role of the East African Court of Justice in the
realization of the Customs Union and the Common Market?”.

It is my argument in this paper that the existence of the EACJ

constitutes another forum within the Community for advancing the EAC
integration agenda. I am at the same time demonstrating how the
parallel dispute resolution mechanisms established under the Customs
Union and Common Market Protocols are a challenge to the work of the
Court and consequently undermine the EAC integration process.

A way forward and conclusion shall close the presentation.

2. The East African Court of Justice as an opportunity for the

EAC integration

It is a reality that when people interact they are likely to get into
differences and disagreement. That is human nature. Courts of law are
purposely created to address this natural eventuality of human
relationship. Similarly, the more East Africa gets integrated the more
disputes of a trans-boundary nature are likely to happen. The visionary
founders of the East African Community foresaw this situation and
decided to create the East African Court of Justice to address such
situations.

It is against the foregoing background that I consider the EACJ as

constituting a unique opportunity for the EAC integration in that it is the
main judicial organ of the Community, accessible, independent and that
renders expeditious justice.

3. East African Court of Justice as Main Judicial Organ of the

Community

As mentioned above, the Court was created by the EAC Treaty and its
main mandate as enshrined in Article 23 (1) is to “ensure the adherence

  3
 EACJ in Customs Union and Common Market

to law in the interpretation and application of and compliance with [the]

Treaty”.

The Treaty in this context means the Treaty for the Establishment of the
East African Community and any annexes and protocol thereto 1. It
should be understood that any annexes and protocol to the Treaty and
any Community law are the ones that potentially generate work for the
Court and that the Court can competently entertain any dispute arising
out of those instruments. It is this finding that prompts me to argue in
this paper that any attempt to take away the jurisdiction of the Court by
any instrument other than the Treaty through establishment of other
parallel dispute resolution mechanisms (quasi judicial bodies) is in itself
illegal and objectionable.

4. Accessibility

The Court is accessible by a range of stakeholders from State level to that

of a simple individual. The following have expressly given access to the
Court by the Treaty:

• Partner states: when a Partner State considers that another Partner

State or Community organ has failed to fulfill Treaty obligation, or
that there is need for determination by the Court on legality of any
Act, regulation, directive, decision or action on ground of being ultra
vires the Treaty 2

• Secretary General: where he considers that a Partner state failed to

fulfill obligation or breached the Treaty 3,
• National court: where national courts refers to EACJ for preliminary
ruling question of Treaty interpretation or determination of legality of
a Community law or action 4 ,

                                                            
1
 See Article 1 of the Treaty for the Establishment of the east African Community (The Treaty) 
2See Article 28 Ibid.
3 See Article 29 Ibid.
4 See Article 34 Ibid.

  4
 EACJ in Customs Union and Common Market

• Legal/ natural persons residents of East Africa: on legality of any

Partner State/Community Act, regulation, directive, decision or action
as ultra vires of Treaty 5

Apart from this statutory access provided for under the Treaty, the Court
is in the process of establishing sub-registries within the Partner States.

The establishment of sub registries is not provided under the Treaty, but
it is a practical arrangement initiated by the Court in a bid to bring
accessibility and justice nearer to the people. In exercise of its powers
under Article 42 (1) of the Treaty the Court formulated Rule 6 of its Rules
of Procedure to make the establishment of sub-registries possible as an
attempt to bring justice nearer to the people. This arrangement has
proven to be very efficient with the Caribbean Court of Justice where
Supreme Court registries of the member states are ipso facto its sub-
registries.

The EACJ was directed by the Council when this idea was tabled before
it, to do a comprehensive study on the subject and present the proposal
after consulting widely. After obtaining the Council approval the Court
will have to work out with national judiciaries, on the modalities of
putting in place the sub-registries in Partner States. We think this will
immensely contribute to the improvement of the regional judicial
mechanism in at least bringing justice nearer to the people, among
others.

5. Independence

A judicial body can only be efficient if it enjoys confidence of its users.

This confidence heavily depends on the independence of the Court as an
institution and that of its individual members. Worth is to mention that
the Court is composed of Judges from the five Partner States. They are -

                                                            
5 See Article 30 Ibid.

  5
 EACJ in Customs Union and Common Market

appointed by the Summit from among persons recommended by the

Partner States who are of proven integrity, impartiality and independence
and who fulfill the conditions required in their own countries for the
holding of such high judicial office, or who are jurists of recognized
competence, in their respective Partner States. 6

Since its inauguration on 30th November 2001 to date, the EACJ has had
on its bench Judges that fulfill those conditions: judges of the highest
courts in the Partner States and/or jurists of recognized competence.
This is quite a statutory guarantee of independence and impartiality of
the Court.

The Court has so far proved to be an independent and impartial body.

Indeed, the Court has experienced and survived what can be termed as
apparent intimidation while discharging its noble duty as the Temple of
Justice. This can be ably demonstrated by what transpired soon after
delivery of one ruling on a matter that was before the Court. In their joint
Communiqué of the 8th Summit, being a reaction to the Court’s ruling
and temporary injunction in Anyang’ Nyong’o case the EAC Heads of
State directed, among other things:

“ that the procedure for the removal of Judges from office

provided in the Treaty be reviewed with a view to including all
possible reasons for removal other than those provided in the
Treaty.” 7
and that
“a special Summit be convened very soon to consider and to
pronounce itself on the proposed amendments of the Treaty
in this regard.” 8

Within a short time the Treaty was then amended accordingly. It appears
from the foregoing interventions that the Judges by deciding the case the
                                                            
6 Article 24 (1) of the Treaty.
7 Joint Communiqué of the 8th Summit of EAC Heads of State, 30 November 2006,
Arusha, Tanzania, p. 12.
8 Ibid.

  6
 EACJ in Customs Union and Common Market

way they did committed an act that would have lead for their suspension
or removal but since such act was not covered by the Treaty, an
amendment to the Treaty had to be effected to so that should there be a
repeat of such act by the Judges, punitive measures can be taken.
Indeed by so doing security of tenure for EACJ Judges was seriously put
at risk. However, this unfortunate reaction of the Summit did not deter
the Judges from acting impartially and independently as it transpired in
the subsequent decisions of the Court. Arguably this makes the EACJ an
exemplary model of the Court that stands to propel the integration
process as provided for in the EAC Treaty. Indeed Judges are committed
to do justice without fear or favour as required by their judicial oath.

Cases which did not stand the competence test of the Court and were
referred to national courts are also inspirational as to how some people
believe more in the justice of the regional Court than that of their
national courts. In this regard I would simply refer you to the cases
Christopher Mtikila v. The Attorney General of the United Republic of
Tanzania and the Secretary General of the East African Community 9, and
Mordern Holdings v Kenya Ports Authority 10.

6. Challenges:

6.1 Working on an ad hoc basis

The fact that the Court works on an ad hoc basis is an element that
undermines its efficiency. None of the ten (10) judges composing the
Court resides at the seat of the Court, including the President. It has
proven difficult to compose the panel of Judges to seat on a particular
case due to their commitments within their respective home countries. It
is also a sad reality that the judicial work of the Court is mainly
organized by the Registrar instead of the Court’s President.

                                                            
9
 Reference No 2  of 2007 
10
 Reference No 1 of 2008 

  7
 EACJ in Customs Union and Common Market

While we wait for the Council to determine the period when the Court will
become fully operational, the Court strongly feels that time has now
come for at least the President of the Court and the Principal Judge, to
start with, to be permanently resident in Arusha.

Put briefly, while acknowledging that the present work load of the EACJ
does not require all the Judges to reside permanently at the seat of the
Court, it is highly recommended that the President and Principal Judge
should be allowed to work on full-time basis in order for them to organize
the administrative and judicial works of the Court.

For the President to perform his administrative and supervisory

functions as envisaged by Article 24 (7) (a) read together with Article 45
(4) of the Treaty for the Establishment of the East African Community, it
is necessary that he be resident in Arusha. An ad hoc President can
hardly perform the administrative mandate of heading and leading the
Court effectively and efficiently, giving it the guidance it deserves
especially during these formative stages; and also attending high-level
meetings with the Secretariat and sister organs. The current position
where the Registrar is attempting to fill the void is inappropriate. Under
the Treaty the headship of the Court is duly vested in the President of the
Court. The Registrar is the Accounting Officer. He cannot give policy
direction for the Court. The President cannot effectively discharge his
functions under the Treaty by remote control.

Likewise, for the Principal Judge to direct the work of the First Instance
Division, represent the Division and regulate the matters brought before
the Court as provided for in Article 24 (8) of the Treaty, it is necessary for
the Principal Judge to be present and resident where the seat of the
Court is located.

  8
 EACJ in Customs Union and Common Market

This argument is buttressed by the fact that the Court workload has
increased and also on the anticipation that it will increase more with the
implementation of various Protocols of the Community

The African Court on Human and People’s Right which is also based in
Arusha has its President and Registrar resident in Arusha working on
full time basis. The nature of the operations of this court is similar to
that of the East African Court of Justice. The Judges of the African Court
on Human and People’s Rights also serve on ad hoc basis but for effective
operations of the court the President of the Court resides in Arusha and
works on full time basis.

Time has come for the President of the East African Court of Justice, an
Organ of the Community, to concentrate, focus and direct his energies
and planning towards the efficiency, growth and progress of the Court as
a Regional Court, so that it can play its rightful role as envisaged in the
Treaty and as expected by the citizens of EAC. An absentee leadership,
for ten years, has clearly been a handicap to strategic growth and
progress of the Court. We know that other major programs of the
Community (customs union, common market, political federation, etc)
have gained momentum and are in high gear. If the Court lags behind in
preparedness to guide application and interpretation of protocols
governing these programs, it will be bad for us all.

6.2 Slowness of the process of adoption of the Protocol extending

the Court’s jurisdiction to appellate and human rights

The decision of extending the jurisdiction of the Court to include

appellate and human rights jurisdiction was taken in November 2004,
but a Protocol that is meant to be the legal framework for this extension
is yet to be concluded. This denies the Court opportunity to play a very

  9
 EACJ in Customs Union and Common Market

important role in addressing the violations of human rights in East Africa

at regional level. It should be noted that a regional jurisprudence in
human rights is required as the Court will be called upon to decide on
common market related matters such as free movement of people, right
of establishment etc which have human rights elements.

People of East Africa particularly the business community and law

societies have been agitating for appellate jurisdiction of this court so
that it becomes the apex court in the region. Albeit for different reasons,
the East African Magistrates and Judges Association (EAMJA) has also
joined EALS the Bar Association to demand for the East Africa Court of
Appeal. These clear demands can be found in the speech by President of
the East African Magistrates and Judges Association during the
association’s Annual General meeting held in Dar Es Salaam in January
2004 when he said:

‘We in the EAMJA believe that in order to fulfill the objective of

the Community, especially those under Article 126 (c) of the
Treaty which include, inter alia ‘‘… the harmonization of legal
learning and the standardization of judgments of courts
within the Community,” the formation of the East African
Court of Appeal is a necessary and overdue step. We need a
court of the highest resort in East Africa whose decisions bind
all our national courts. The world trend now is to use
international norms and standards to interpret national laws
… And further delay in establishing the East African Court of
Appeal will just leave us behind while other regions forge
ahead’. 11

6.3 Parallel EAC Dispute Resolution Mechanisms (Establishment of

Quasi Judicial Bodies)

Much as the EACJ is the main judicial organ of the Community that has
been tasked with the resolution of disputes arising out of the Treaty and
other Community laws, the EAC continues to establish other quasi-
                                                            

  10
 EACJ in Customs Union and Common Market

judicial bodies or mechanisms with the same mandate as the EACJ. The
Customs Union and Common Market Protocols are an example where
such parallel mechanisms have been established with potentialities of
making EAC redundant.

a) Customs Union Protocol

The dispute resolution mechanism put in place by the EAC Customs

Union Protocol is in Annex IX of the same. 12

The mechanism consists of a possibility for an amicable settlement

through good offices, conciliation and mediation to be arranged by the
parties themselves 13 as well as proceedings before the East African
Committee on Trade Remedies established under Article 24 of the
Protocol (Committee). It is provided under the Customs Union Protocol
that the Committee shall handle all matters pertaining to:

(a) rules of origin provided for under the East African

Community Customs Union (Rules of Origin) Rules,
specified in Annex III to the Protocol;
(b) anti-dumping measures provided for under the East
African Community Customs Union (Anti-Dumping
Measures) Regulations, specified in Annex IV to this
Protocol;
(c) subsidies and countervailing measures provided for
under the East African Community Customs Union
(Subsidies and Countervailing Measures) Regulations,
specified in Annex V to this Protocol;
(d) safeguard measures provided for under the East African
Community Customs Union (Safeguard Measures)
Regulations, specified in Annex VI to this Protocol;
(e) dispute settlement provided for under the East African
Community Customs Union (Dispute Settlement
Mechanism) Regulations, specified in Annex IX to this
Protocol; and

                                                            
12 Article 41 (2) of the Customs Union Protocol.
13 Regulation 5 (1) and Regulation 6, Annex IX to the Customs Union Protocol.

  11
 EACJ in Customs Union and Common Market

(f) any other matter referred to the Committee by the

Council. 14

As if the foregoing was not enough the Protocol goes on to tie the note
against the East African Court of Justice by stating that the decision of
the Committee on these matters shall be final. 15

It is important to note that the EACJ is left out and therefore denied a
role in all this process under the Customs Union Protocol except if any
party challenges the decision of the Committee on grounds of fraud,
lack of jurisdiction or other illegality, 16 in which case such party
may refer the matter to Court for review in accordance with Article 28(2)
of the Treaty and any other enabling provision of the Treaty. 17

Interesting enough, the review provided for under this provision can only
be requested by Partner States as Article 28 of the Treaty referred to
provides only for references by Partner States not by any other person.

From the aforesaid one would wonder whether the EACJ was established
to play any significant role in the integration process of the East African
Community. If the Court’s main mandate is to ensure the adherence to
law within the Community, would one conclude that the Customs Union
Protocol is not part of the EAC law? I would not agree with that. The EAC
Customs Union is part of the Community law whose application,
interpretation and compliance therewith would have naturally come to
the Court. The establishment of the above mentioned Committee with
exclusive jurisdiction on matters arising out of Customs Union and the
ousting of the jurisdiction of the East African Court of Justice is in my
view, contradictory and illegal.

                                                            
14 Article 24 (1) of the Customs Union Protocol.
15 Regulation 6 (7) of Annex IX of the Customs Union Protocol.
16 Emphasis added.
17 Regulation 6 (7), Ibid.

  12
 EACJ in Customs Union and Common Market

We may not be surprised why up to now, five years since Customs Union
Protocol became operational, EACJ has received no single case on
Customs Union. There was an attempt by one person whom for lack of a
better word I prefer to call him “a risk undertaker” who filed a reference
in the East African Court of Justice to test the waters 18. However, the
case did not even take off as the Court dismissed it on the preliminary
objection ground which was raised by the Respondent that the Court had
no jurisdiction.

Apparently the dismissal of this case by the Court for lack of jurisdiction
was a big blow especially to the Business Community which had been
urging for enhancement of the jurisdiction of the East African Court of
Justice. The Court was taken to have shot itself on the foot by joining the
Partner States in taking away the jurisdiction which according to the
Treaty is supposed to be that of EACJ. Perhaps the Court should have
played a more proactive role and hear the matter by ruling that it had
jurisdiction, but we should appreciate the fact that it is not for the Court
to confer to itself the jurisdiction that has been categorically taken away.
As far as implementation of Customs Union Protocol is concerned we
should not expect the miracle on the part of the Court unless the
question of jurisdiction is addressed in the Protocol with necessary
amendments, much as the judges may be proactive.

It may be of interest also to investigate whether the East African

Committee on Trade Remedies that is being referred to under Article 24
of the Protocol have been formed. To the best of my knowledge no such
Committee has been formed to date. This means, the people of East
Africa have nowhere to present their disputes that arise out of Customs
Union. Consequently the chances of EACJ receiving appeals under its
limited jurisdiction are also not there unless the Committees are formed
to generate work for the Court.
                                                            
18
 See Mordern Holdings v. Kenya Ports Authority, Reference No 1 of 2008. 

  13
 EACJ in Customs Union and Common Market

b) Common Market Protocol

The Common Market Protocol does not establish a new dispute

resolution body. However the mechanism it has put in place does not
give to the EACJ the powers that would have naturally come to it.
Jurisdiction to entertain Common Market related disputes has mainly
been given to national courts as it flows from Article 54 (2):

“In accordance with their Constitutions, national laws and

administrative procedures and with the provisions of this Protocol,
Partner States guarantee that:
a) any person whose rights and liberties as recognized by this
Protocol have been infringed upon, shall enjoy the right of
recourse, even where this infringement has been committed by
persons exercising their official duties; and
b) the competent judicial, administrative or legislative authority or
any other competent authority, shall rule on the rights of the
person who is making the appeal”.

It is clear from the foregoing provision that an individual, whose rights

accruing from the Common Market Protocol may be violated, shall take
the matter to his/her national courts and shall have no immediate
recourse to the EACJ. Unless a national court seized with a Community
law related matter feels a need for interpretation and refers it to the
EACJ in accordance with Article 34 of the Treaty, the EACJ shall never
entertain a Common Market-related matter. The role of the EACJ in the
realization of Common Market solely depends on the extent of its Judges
in being proactive and on the discretion of the national courts judges to
refer the matters for interpretation by the EACJ.

This introduces us to the fundamental question of the relationship of

EACJ and national courts. Indeed among the stakeholders of the EACJ,
are national courts. As I said earlier, one aspect of the EACJ’s
jurisdiction is to hear and determine cases referred to it for preliminary
ruling by the national courts.

  14
 EACJ in Customs Union and Common Market

When faced with a case requiring the application or the interpretation of

the Treaty or any other East African Community law, the national courts
are required to refer the matter to the EACJ for preliminary ruling. This
is a Treaty requirement. However, the obligation to refer a matter to the
EACJ for preliminary ruling is not automatic whenever a question of
interpretation or application of the Treaty or a question concerning the
validity of the regulations, directives, decisions or actions of the
Community arises. The preliminary ruling should be necessary in the
opinion of the national court judge to enable the national court give its
judgment.

This of course leaves to the national court a very wide discretion to

ascertain whether a decision on a question of Community law is
necessary to enable it give its judgment. It means therefore that the
EACJ finding on any reference from the national courts aims at assisting
the national courts in making a decision on a matter that may be right
before it. The interaction of the EACJ and the national courts through
references for preliminary rulings is essential in making community law
effective and development of uniform jurisprudence in the region. We
hope that national courts will always remember that according to the
Treaty “decisions of EACJ on the interpretation and application of the
Treaty shall have precedence over decisions of national courts on a
similar matter.” 19

It is important to note that much as the reference mechanism is crucial

to the application of the Community law at the national level, to date this
mechanism has not yet been used. This could be an indication that the
East African Community law is not known within the region, even by the
Judicial Community. If this mechanism is utilized, there is no doubt that
the legal integration in the region would be faster. The utilization of this

                                                            
19
 See Article 33 (2) of the Treaty 

  15
 EACJ in Customs Union and Common Market

mechanism would also create more awareness on the rights flowing from
the Treaty and the Partner States’ obligations pertaining to these rights.

From the foregoing discussion, it can be confirmed that although Article

54(1) of the Common Market Protocol refers any dispute amongst Partner
States arising from the Protocol to “the procedure for the settlement of
disputes stipulated in the Treaty”, the likelihood of Partner states taking
each other to Court is very little if at all. The individuals and body
corporate would have been the ones to make the EACJ play a significant
role in the realization of the Common Market. It should always be
understood that the Court was not established for the sole and exclusive
use of the Partner States and EAC Institutions. The main reason why it
was put in place was indeed to assist the Community achieve its
objectives through respect of the principles of rule of law, democracy,
good governance and human rights which are very well enshrined in the
Treaty.

7. Conclusion

The above discussion shows how the EACJ can potentially play its role of
ensuring adherence to the rule of law but it is not given sufficient
jurisdiction in this regard and in some instances the little jurisdiction it
has is being taken away. Arguably, EACJ has been systematically
reduced to a toothless dog that cannot bite. The Court of Justice of the
European Communities which, since its inception, has been playing a
crucial role in the European integration process has, from January 2000
to November 2009, determined more than four hundred (400) cases
related to Customs Union and Common Market. 20 This is what a fully

                                                            
20 The cases finalized by the Court of First Instance are not included. See data existing
at
http://ec.europa.eu/taxation_customs/resources/documents/common/infringements/
case_law/List_of_cases_6th_VAT_directive_a2_fr.pdf and
http://ec.europa.eu/taxation_customs/resources/documents/common/infringements/
case_law/court_cases_direct_taxation_en.pdf both websites accessed on 20 January
2010.

  16
 EACJ in Customs Union and Common Market

fledged Community Court is capable of achieving and the EACJ has the
potential of doing the same. All it needs is support from the EAC Policy
Organs.

It should be understood that the existence of parallel dispute resolution

mechanisms with the EACJ is not an asset to the EAC integration
process for the following reasons among others:

Firstly, there will be different interpretations of the Community Law that

will create a vicious circle of endless litigation. Secondly the process of
harmonization of the national laws will take too long thereby delaying the
whole integration process. Thirdly the co-existence of the EACJ and the
Committee is not cost effective at all. The Committee shall be comprised
of three (3) members per Partner State, 21 making a total of fifteen
members. It will also need a secretariat just as the Court needs to have
Registry staff. Lastly the procedure before the Committee will be
extremely costly to the parties as they shall bear the remuneration and
travel expenses of the members of the Panel and those of experts, 22 on
the rate fixed by the Council of Ministers from time to time. 23 The
number of Panel members is fixed by the Committee. 24

I have not made an exhaustive discussion on the topic but due to time
constraints I have just raised issues to engage you in the discussion of
this important topical issue that touches the role of the East African
Court of justice in the realization of the Customs Union and Common
Market.

Thank you for your attention.

                                                            
21 Article 24 (2) of the Customs Union Protocol.
22 Regulation 19 (2) of Annex IX, Ibid.
23 Regulation 19 (1) of Annex IX, Ibid.
24 Regulation 8(5) of Annex IX, Ibid.

  17