Court of Appeal’s Justice Geoffrey Kiryabwire says it is time that the East African Court of Justice is mandated to adjudicate over human rights issues in East Africa.
“The time has come and our friends from EALA are here that the African Community incorporates the Charter on Human and People’s Rights as the EAC Bill of rights so as to have substantive law for litigating human rights in East Africa” he suggested.
JusticeGeoffrey Kiryabwire, who has previously serves as the Vice President of the East African Court of Justice (EACJ) says while the court does not have direct human right mandate, it is increasingly faced with cases related to governance.
Questions have been raised on whether the East African Court of Justice should limit itself the economic integration issues. There has also been a lingering dichotomy of expectations between the litigating public and the member states of as to what the EACJ can or cannot do.
Jurists with in East Africa and other economic blocks say the EAC treaty should be amended to provide for a protocol that mandate the court to handle human rights issues.
Justice Kiryabwire in a presentation at the 3rd Annual East African Court Justice Judicial Conference agrees it is not possible to have economic integration and political integration at the East African Community without harmony in the partner states in the area of good governance.
“In the James Katabazi case the judge there said it was clear to them and they had no flick of doubt that good governance, and in particular rule of law was essential for East African integration” said Geoffrey Kiryabwire.
“It follows that human rights…is an inevitable part of litigation at EACJ and it will be pointless at this point in time to reverse this subject” he added
The East African Court of Justice of the East African Community (EAC) started dealing with court cases in 2005. It spent almost three years without business because there were no litigations related the Treaty and it protocols. Initially, EAC member states intended for the court to address trade matters, in line with the economic rationale of the EAC.
Legal scholars like Professor Edward Sempebwa have indicated that the East African Court of Justice has emerged as a good avenue for public interest litigation by citizen in the community. Some lawyers have used the regional integration agenda outlined in the EAC treaty to sue the states .
Sempebwa says many people are heading to the EACJ because they believe that it is free from the sensitivities of the courts in the member states.
He says some of the case to the court have flopped because they did not fall within its jurisdiction. Justice Kiryabwire has observed that the East African Court of Justice has engaged in progressive interpretation and application of the EAC treaty on human rights, refusing to abandon its duty as per article 27(1) of the treaty.
It has emerged the conference in Kigali that while the court has handed case related economic issues, it equally dealt with human rights violations such as arbitrary arrests, cruel, inhumane and degrading treatment.
The handling of human rights case including the famous Anyang Nyongo case in the Martha Karua case annoyed countries like Kenya. It has been noted in Kigali that the EACJ is facing chronic underfunding coupled with slow implantation of is decisions by the member states.
The President East Africa Law Society, Ramadhan Abubaker observes that the political environment with in the East African member states is affecting the effectiveness of EACJ in adjudicating sensitive human rights cases.
He suggests the need for judicial independence to enable the EACJ to dispense justice. “Without judicial independence, the rule of law is nothing but a fasard and justice becomes a privilege that a right.
He also decried the slow delivery of the judgments at the court. Giving an example of an election petition that has been pending since 2021.
Justice Nestor Kayobera, the Judge President of the East Africa Court of Justice said the Attorney General of the Member States have the ultimate power on amending the treaty to include human rights. He says in s when those organs have failed to comply , heavy penalties have been awarded to the litigants .
As far as proper functioning of the EAC is concerned, the efficiency of the EACJ in performing its mandate has with time raised many questions than answers.
Particularly, in the enforcement of its judgments, the EACJ has adopted and embraced the indirect enforcement mechanism. As an organ of the EAC, the EACJ has a formal mandate and role in dispute settlement and interpretation of the EAC Treaty.
The original three member states of the first EAC (dissolved in 1977) were reluctant to provide the predecessor to the EACJ – the East African Court of Appeal – with jurisdiction over human rights cases.