by Dr. Ally Possi*
This post exposes a major obstacle facing one of the African regional economic community judiciaries: the East African Court of Justice (EACJ, or the Court). The EACJ is the judicial organ embedded to settle disputes in connection with the East African Community (EAC) integration activities. Comparatively, the EACJ is a replica of other regional economic community courts, currently in existence, such as the Court of Justice of the European Union.
Private litigants play a key role in modelling states’ behaviour to realise their integration ambitions. One of the operational principles of the EAC is the ‘people-centered’ co-operation form of integration (art 7(1)(a) of the EAC Treaty). Therefore, it was not an oversight to permit individuals to account Member States before the EACJ, whenever there is an infringement of the EAC Treaty. However, article 30(2) of the Treaty restricts private litigants to lodge their complaints: within two months of the enactment, publication, directive, decision or action complained of, or in the absence thereof, of the day in which it came to the knowledge of the complainant, as the case may be.
Following a significant level of silence on the stringent rule, this post is vitally important considering the nature of the subject it tackles. Judges have been narrowly and strictly interpreting article 30(2) of the EAC Treaty, preventing private litigants to lodge their complaints to the EACJ with ease. Eventually, individuals are being denied access to justice. This post, therefore, argues that EACJ judges need to broadly and purposely interpret article 30(2) of the EAC Treaty. The grounds used to deny to extend the two months’ time window are contrary to the spirit of the EAC Treaty. Thus, this post provides some legal evidence for EACJ judges to stretch the rigorous time limitation clause.East African Court of Justice
The Court is established pursuant to article 9 of the EAC Treaty, as one of the EAC organs bestowed with a mandate of interpreting and applying the EAC Treaty (see art 23, 27(1)). The Court is composed of two Divisions - the First Instance Division (FID), which has jurisdiction over most matters, and the Appellate Division (AD), where matters initially dealt by the FID are considered for appeal, as well as applications for advisory opinions. Worth a mention, accessibility to the EACJ by private litigants, challenging the acts of EAC Member States, is one of the most modern features in the catalogue of international and regional courts.
It is now about sixteen years after EACJ’s official inauguration on 30 November 2001. With this fairly long-life span, one cannot claim the Court is still enjoying its infancy period. The Court has, since its inception, evolved and natured in a way that it is fair to comment the Court has attained maturity stage of adjudication. However, it was only in 2005 that the EACJ received its first case concerning a power struggle for enacting EAC laws between the Council and the East African Legislative Assembly (EALA). The turning point to the Court’s fortune was in 2007, when EAC Treaty was hastily amended as a means of retaliation from Member States, due to a judgment by the Court faulting the manner in which members of EALA from Kenya were elected (see Anyang’ Nyong’o v AG of Kenya).
The process of amending the Treaty was, however, nullified in EALS v AG of Kenya & Others, of which the Regional Bar Association successfully challenged the amendment process by contending that the process were hasty in the manner that EAC citizens were not consulted over the proposed amendment; a process required by the Treaty. Thus, the EACJ found the amendment process was contrary to the letter and spirit of the EAC Treaty, of which one of its founding norms requires a people-centered driven form of integration. Despite of the EACJ decision, the amended Treaty retained its legal force. Perhaps, the nature of the EACJ’s declarations had something to do with its implementation; which really is a matter of another academic debate. Be it as it may, it was from that illegally pronounced amendment when article 30(2) was inserted.
EACJ’s approach on article 30(2)
As evidenced in this post, the stance of the EACJ over article 30(2) EAC Treaty is appreciatively conservative; that the article is strictly interpreted within its generic context. EACJ judges seem to not be unmoved to adopt some legally accepted exceptions when interpreting article 30(2). Consequently, many fresh cases are on the verge of facing dismissal. it is unrealistic for private litigants to have a full case ready for court registration within sixty days. Case preparation takes time and resource demanding. EACJ judges need not be reminded that they are presiding in an integration judiciary within the region where majority of its people are least advantaged and under resourced. By being uncompromised to the two-months’ time draconian rule, it is them – judges – who are also denying EAC individuals access to justice.
However, it was not always pessimism before the EACJ in the early cases, where article 30(2) EAC Treaty was at the focal point of dispute. To be specific, among the two mentioned Divisions, the FID used to condone article 30(2) EAC Treaty. In IMLU v AG of Kenya, a reference filled in 2010, the applicant accused Kenya for violating the EAC Treaty, for failing to prevent or punish the perpetrators of the violence occurred at Mount Elgon during the 2007 general election. Kenya refuted such allegations by objecting the time in which the applicant’s complaint was lodged. In its decision, the FID stated (at p. 10):
It is our considered view, that the matters complained of are failures in a whole continuous chain of events from when the alleged violations started until the Claimant decided that the Republic of Kenya had failed to provide any remedy for the alleged violations. We find that such action or omission of a Partner State cannot be limited by mathematical computation of time.
The above reasoning was the FID’s stance in the early few cases with time-limit concerns. When those cases reached the AD, however, they all were overturned on the grounds that the EACJ does not have any mandate to stretch time limits; and that arguments on the application of the doctrine of continuing violation cannot be sustained since EACJ is not a human rights court, where the doctrine is relevant (see AG of Uganda v Omar Awadh). As it stands, no flexibility is seen from the EACJ as yet to at least liberally interpreting article 30(2) EAC Treaty.
The AD’s position came at a time when minds of all those affiliated with the EACJ were fresh from the suspicious 2007 Treaty amendment, of which the AD was created. It was also the first batch of AD appointed judges who presided on the above appealed time-limit cases. While there is no evidence of the then AD judges lacking impartiality, speculations on the AD’s verification role over FID cannot be shrugged-off with ease.
A call for a purposive interpretation
Article 30(2) EAC Treaty should be interpreted in light of its object and maiden purpose. The following are reasons for the call. First, before the faulted 2007 Treaty amendment, article 30(2) was not inserted purposely so as to allow private litigants to have their share in playing a role within EAC integration without restrictions. After inserting article 30(2), individuals are now not able to access the EACJ with comfort. In fact, the provision was inserted in a discriminatory manner, as it is only applicable to private litigants and not to other applicants who can access the EACJ, such as the EAC Secretary General. Therefore, strictly interpreting article 30(2) of the EAC Treaty is against the maiden spirit of the Treaty of allowing EAC citizens to have a say in the activities of their economic bloc.
Second, private litigants are key in spearheading integration goals through litigation on matters directly associated with integration. By strictly applying article 30(2) EAC Treaty, applicants will not easily access the EACJ, eventually denying them access to justice and playing their crucial role in shaping the integration. A society such as that of the EAC where most indigents are illiterate and legal services are scarce, a time-window of sixty days is minute. One would take about six months and above to gather evidence, jotting-down pleadings, and seeking legal assistance; let alone the time to be aware of legal procedures or even the existence of a court such as the EACJ. Due to the nature of its people in the region, there is a need of applying the time limit rule with more logic.
Third, looking at the nature of cases received by the EACJ since its inception, the Court has been failing to attract traders due to its remedial powers and other related pitfalls. In having a two months’ time limit for lodging a complaint, traders in the region will keep-on boycotting the Court and find other more favourable avenues to solve their disputes. Thus, by harshly interpreting article 30(2) EAC Treaty, the Court does not help its course of influencing traders to bring commercial-related disputes. A less strict interpretation of this provision would be able to attract more trade litigants in the region.
Fourth, Rule 4 of the EACJ Rules of Procedure allows the Court to extend time in all procedural matters. Time-limits are also matters of procedure that judges should take note and apply the rule for the benefit of individual litigants. It is somewhat surprising to find EACJ Judges have not been bothered to warrant for the extension of time limit, based on the rule.
Fifth, there is evidence that the doctrine of continuing violation is commonly used in other legal fraternity, such as tort and environmental law matters. It is unfound for the Court to declare that the doctrine of continuing violation is only relevant to courts with human rights jurisdiction. This line of defence mechanism from EACJ judges should be treated with caution. In the first place, the EACJ is struggling to attract traders to send their cases to the Court. Taking a look of matters concerning contracts, clearly, their nature of violation can be continuous. Being a regional economic community court, it is expected that trade and contractual related matters will be handled to the Court. By strictly interpreting article 30(2) of the EAC Treaty, to the extent of not upholding the continuing violation doctrine, there is a likelihood of the Court to not receive critical cases. Simply, the EACJ is shutting its own door to adjudicating trade and other related disputes.
Sixth, using the same thread of reasoning from EACJ judges that the EAC Treaty does not explicitly confer the Court with a mandate to extend the restrictive time-limit; one can also advance an argument that the Treey also does not prevent EACJ judges to extend time-limits. Even more so, another glance to article 30(2) finds a phrase ‘as the case may be’ within the article; meaning that the rule is only determined upon weighing all circumstances at present. Thus, the EACJ can extend time for lodging complaints depending on the situation at hand.
Article 30(2) EAC Treaty is a hurdle to private litigants before the EACJ. By maintaining and conservatively applying the provision, genuine intention of having direct individual access to the EACJ becomes meaningless. A more recent attempt to nullify article 30(2 proved futile (Steven Dennis v AG of Burundi & Others), when FID held that article 30(2) EAC Treaty conforms established Community norms, contrary to what was alleged in the case. Understandably so, the FID cannot rule contrary to the AD. This latest decision has dashed private litigants’ hopes of getting rid of the draconian time-limitation rule. Therefore, it is submitted that, in future, the EACJ should provide an interpretation of article 30(2) EAC Treaty based on its objectivity and purpose, as established in the Vienna Convention on the Law of Treaties (art 31(1)).
*Dr. Ally Possi is a Post-Doctoral Fellow at North-West University, South Africa, and a lecturer at the Law School of Tanzania. His major focus of academic interest is on African judicial and quasi-judicial bodies, international human rights law, East African Community law and regional integration at large. He can be contacted through [email protected]