It’s official: The East African Court of Justice can now adjudicate human rights cases

Author: Ally Possi
Lecturer, Law School of Tanzania; Advocate of the High Court of Tanzania

The legitimacy of the East African Court of Justice (EACJ) to adjudicate human rights cases has been a debatable aspect ever since the Court’s inception. Articles 6(d) and 7(2) of the East African Community (EAC) Treaty mention human rights, which ordinarily the EACJ is mandated to interpret. However, article 27(2) of the Treaty implies to suspend what seems to be a legitimate human rights authority of the Court. Consequently, articles 6(d), 7(2) and 27(2) have made litigants, legal scholars and even EACJ judges to be at cross-roads with respect to EACJ’s human rights jurisdiction.

The recent decision in Democratic Party v. The Secretary General of the EAC, Appeal No. 1 of 2014 (Democratic Party case) will make the functioning of the EACJ rather interesting within the near future. In that case, the EACJ unequivocally held that it has ‘jurisdiction to interpret the Charter [African Charter on Human and Peoples’ Rights herein the African Charter] in the context of the [EAC] Treaty.’ This lining of the decision becomes more authoritative as it is from the Appellate Division section of the Court.

The gist on the matter was that Democratic Party approached the EACJ to find Burundi, Kenya and Uganda in violation of the EAC Treaty, due to their prolonged process in depositing their declarations under Articles 5(3) and 34 (6) of the African Court Protocol. Specifically, the applicants contended that such delays constituted to an infringement of Articles 5,6, 7(2),8(1) (c), 126 and 130 of the Treaty; and Articles 1,2,7,13,26,62,65 and 66 of the African Charter. The First Instance Division dismissed the matter on the premises that it has only the jurisdiction to ensure adherence to the law in the interpretation and application of and compliance with the EAC Treaty; but not with the African Charter and its Protocol.

On appeal, one of the major issues was: whether the First Instance Division erred in law by finding that it had no jurisdiction to interpret the African Charter, the Protocol, and other relevant international conventions to which EAC Member States are parties. In responding to this issue, affirmatively, the Appellate Division had this to say:

Articles 6 (d) and 7(2) of the Treaty empower the [EACJ] to apply the provisions of the Charter, the Vienna Convention, as well as any other relevant international instrument to ensure the Partner States’ observance of the provisions of the Treaty, as well as those of other international instruments to which the Treaty makes reference. The role of the Court in the instant Reference, was to ascertain the Partner States’ adherence to, observance of, and/or compliance with the Treaty provisions including the provisions of any other international instruments which are incorporated in the Treaty, whether explicitly [as in Article 6(d)], or implicitly [as in Article 7 (2)].

It can be recalled that a similar holding was made by the First Instance Division in Rugumba v Secretary-General of the EAC & AG of Rwanda, Ref No. 8 of 2010 and in IMLU v AG of Kenya, Ref No. 3 of 2010. In both cases, the Appellate Division established a stance that the EACJ will entertain a matter with human rights allegations, only after delving a cause of action which is distinct from human rights. It was clear that the EACJ was not interested to interpret the African Charter. The EACJ would only find a member state in breach of, among others, articles 6(d) and 7(2) of the Treaty, relying on other forms of cause of action, such as a breach on the rule of law, without interpreting the Charter.

The current reasoning of the EACJ in the Democratic Party case will officially enable the EACJ to handle allegations of human rights violations. However, prospective litigants should not be complacent. Fierce objections from Member States are anticipated. Also, it would not be an exception at all if the decision causes political retaliation from EAC Member States.

In situations where international judges are confronted with ambiguous rules, it is their duty to clarify those rules. In the process, international judges might expand international law. Therefore, the Democratic Party decision is an inevitable judicial law making process of the EACJ. Two reasons can be mentioned for this major development by the Court. First, the EACJ judges who presided over the matter are new. It would seem that they are determined to take EACJ’s human rights mandate to the next level. The second reason relates to the number of human rights cases submitted to the Court. About 90% of cases before the EACJ are of human rights nature. As a result, Court judges have yielded to litigants’ pressure, due to progressive submissions and persuading arguments.

About the Author:
Dr Ally Possi is an LLD graduate from the Centre for Human Rights, University of Pretoria. He is currently working as a lecturer at the Law School of Tanzania and an advocate of the High Court of Tanzania. His area of interest is on international human rights law, international institutional law, and international courts, particularly African courts.