The East African Court of Justice

Discussion What is the East African Court of Justice? Is it a human rights court? Has it considered human rights cases?

Jurisdiction Treaty Establishing the East African Community Article 27 “1. The Court shall initially have jurisdiction over the interpretation and application of this Treaty… 2. The Court shall have such other original, appellate, human rights and other jurisdiction as will be determined by the Council at a suitable subsequent date…” Article 30 “… any person who is resident in a Partner State may refer for determination by the Court, the legality of any Act, regulation, directive, decision or action of a Partner State or an institution of the Community on the grounds that such Act, regulation, directive, decision or action is unlawful or is an infringement of the provisions of this Treaty.”

Criteria for Applicant A legal or natural person; and Resident of an EAC Partner State; and Claim must challenge the legality of an Act, regulation, directive, decision, or action of the said Partner State or an institution of the Community. (Godfrey Magezi vs The Attorney General of the Republic of Uganda EACJ Reference No. 5 of 2013)

Jurisdiction Jurisdiction ratione materiae: Any person (or company) resident in the East African Community may bring a case to the East African Court of Justice. Jurisdiction ratione temporis: Cases will fall within the temporal jurisdiction if they occurred subsequent to the treaty coming into force. The refusal by the East African Court of Justice to recognise continuing violations of the treaty indicate that time limits will be applied strictly. See for example Emmanuel Mwakisha Mjawasi and Others v. The Attorney General of Kenya EACJ Reference No. 2 of 2010, at p.9, and Appeal No. 4 of 2011, at pp. 8 to 14.

Jurisdiction ratione materiae Does an act or omission infringe the Treaty? “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…While the Court will not assume jurisdiction to adjudicate on human rights disputes, it will not abdicate from exercising its jurisdiction of interpretation under Article 27 (1) merely because the reference includes [an] allegation of human rights violation.” (James Katabazi & 21 Others v Secretary General of EAC & Another EACJ Reference No. 1 of 2007)

How far will they go? The East African Court of Justice held that violations of the freedom of expression and of the press were justiciable as violations of the East African Treaty, holding that, “there is no doubt that freedom of the press and freedom of expression are essential components of democracy.” (Burundi Journalists Union v. The Attorney General of the Republic of Burundi EACJ Reference No. 1 of 2007)

Contents of Reference According to Rule 24 of the East African Court of Justice’s Rules of Procedure, a case (Reference) is brought by an application stating: – the name, designation, address and residence of the applicant; – the designation, name, address and residence of the respondent; – the subject-matter of the reference and a summary of the points of law on which the application is based; – the nature of any evidence offered in support; and – the order sought by the applicant.

Admissibility ?

Exhaustion of domestic remedies? The East African Court of Justice has held that there is no requirement that a Party must exhaust local remedies before approaching the East African Court, basing this on the argument that the East African Court of Justice has primacy in interpreting the East African Treaty (which is an overt rejection of the subsidiarity principle). (Rugumba v. Attorney General of Rwanda)

Two-month rule The Treaty requires that references be filed with the East African Court of Justice within two months of the violation complained of, which is an extremely difficult requirement to comply with. In two cases the East African Court of Justice held that: – it will not give any leeway on this requirement; and – there is no provision in the Treaty that covers the concept of continuing violations as this is a human rights concept and is therefore not applicable to interpretation of the Treaty. (Attorney General of Uganda and Attorney General of Kenya v. Omar Awadh and Six Others; Attorney General of Kenya v. Independent Medical Legal Unit)

Sources The vast majority of human rights cases will be justiciable before the East African Court of Justice, as long as the violations are expressed as violations of the principles of good governance, democracy, rule of law or social justice. The Court has also demonstrated a willingness to consider the human rights jurisprudence of other courts. See for example the Burundi Journalists Union case, where the Court quoted the following from the European Court of Human Rights’ decision in Goodwin vs. UK : “Protection of journalistic sources is one of the basic conditions for press freedom.... Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest. As a result, the vital public-watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be adversely affected.”

Rule skeptics? But in the rendition cases against Uganda and Kenya the Court expressly rejected arguments on continuing violations supported by the jurisprudence of other human rights courts. The Court held that the concept had been developed in the context of other human rights treaties and could not extend to the Treaty Establishing the East African Community. (Attorney General of Uganda and Attorney General of Kenya v. Omar Awadh and Six Others)

Appeal The East African Court of Justice allows appeals of decisions of the First Instance Division to the Appeals Division: on points of law; on jurisdiction; and to review procedural irregularities.

Remedies In the Burundi Journalists Union case, the Court held that it had no authority to order a member State to amend its legislation and instead issued a declaratory order that the legislation violated the Treaty and directed the member State to comply with the decision.

Advisory Opinion A request for an advisory opinion under Article 36 of the Treaty is lodged in the Appeals Division. The request must: – contain a statement of the question upon which an opinion is required; and – be accompanied by all relevant documents. As with the African Commission and the African Court, advisory opinions must be requests for the interpretation of the law and must not be attempts to bring contested cases before the Court.

Why would you file a case at the EACJ? ?