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Defining the Scope of Free Movement of Citizens in the East African Community: The East African Court of Justice and its Interpretive Approach

Published online by Cambridge University Press:  15 January 2018

Caroline Nalule
Caroline Nalule*
Affiliation:
University of the Witwatersrand, School of Law
*
[email protected]
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Abstract

Free movement of persons is one of the core tenets of the East African Community (EAC) common market, making it seem like a purely economic project. However the EAC ultimately aims to constitute itself as a political federation. This article argues that the free movement of persons within the EAC should be interpreted in broad terms with the aim of asserting it as a fundamental right of EAC citizens. Such an interpretation should be championed by the East African Court of Justice, whose mandate is the interpretation and application of community law. The court, however, seems to prefer a narrow, textual and cautious interpretive approach that may not necessarily advance the EAC's broader objectives. A human rights-oriented interpretive approach might just be the key to realizing a progressive transformation in the rationalization of the right to free movement within the EAC.

Keywords

Free movement of personsEast African Communityfundamental rightstextual-formalismregional integrationEast African Court of Justice
Type
Research Article
Information
Journal of African Law , Volume 62 , Issue 1 , February 2018 , pp. 1 - 24
Copyright
Copyright © SOAS, University of London 2018 

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Footnotes

*

PhD candidate, School of Law, University of the Witwatersrand, Johannesburg. The author is extremely grateful to: the Centre of Excellence for International Courts (iCourts), University of Copenhagen Faculty of Law and the wonderful people that are part of it for providing the research initiative, space, facilities, materials and support for writing this article, as well as comments and advice on the initial ideas; and the Institute for Global Law and Policy, Harvard Law School, which provided an opportunity for initial review of this article during the African Regional Workshop, 2016, with special thanks to the members of the author's workshop writing group. The author specially thanks her supervisor, Prof Jonathan Klaaren, for his invaluable support, input and advice. She also thanks her good friend Anthony Akoto Ampaw for his unwavering support throughout this research. This article is a reproduction of parts (particularly chap 5) of the author's doctoral thesis: C Nalule “Advancing regional integration: Migration rights of citizens in the East African Community” (unpublished PhD thesis, University of the Witwatersrand, 2017).

References

1 The treaty entered into force on 7 July 2000.

2 The Protocol for the Establishment of the EAC Common Market was signed by the then five partner states on 20 November 2009 and entered into force on 1 July 2010.

3 South Sudan was admitted into the EAC in March 2016.

4 EAC integration is to be achieved through four phases: a customs union, the protocol for which entered into force on 1 January 2005; a common market, which is still under implementation, although the protocol establishing it came into force on 1 July 2010; a monetary union, the protocol establishing which was signed on 30 November 2013; and a political federation.

5 Suffice to note that the status of an “EAC citizen” is not yet formally recognized, despite the availability of EAC passports for nationals of EAC partner states. Therefore, the use of the phrase “EAC citizen” in this article shall be understood as meaning “a national of a partner state recognized under the laws governing citizenship in the partner state”, this being the interpretation provided in CMP, art 1. The issue of whether or not there can be said to be generic EAC citizenship merits further research and discussion. Part of this discussion has been laid out in the author's draft thesis; see C Nalule “Advancing regional integration”, above at note * at 59–67.

6 Treaty of the European Economic Community, art 48.

7 Maas, W “The genesis of European rights” (2005) 43/5 Journal of Common Market Studies 1009CrossRefGoogle Scholar.

8 See Reinisch, A Essential Questions in EU Law (2012, Cambridge University Press) at 68CrossRefGoogle Scholar.

9 Jacobs, FG “Citizenship of the European Union: A legal analysis” (2007) 13/5 European Law Journal 591 at 592CrossRefGoogle Scholar; Dougan, M “The bubble that burst: Exploring the legitimacy of the case law on the free movement of union citizens” in Adams, M et al. (eds) Judging Europe's Judges: The Legitimacy of the Case Law of the European Court of Justice (2013, Hart Publishing) 127 at 145–46Google Scholar.

10 CMP, art 7.2.

11 Id, art 7.5.

12 EAC Treaty, arts 23 and 27.1. See also The East African Law Society v The Secretary General of the East African Community, EACJ ref no 1 of 2011.

13 Samuel Mukira Mohochi v The Attorney General of Uganda, EACJ ref no 5 of 2011. Mbugua Mureithi wa Nyambura v The Attorney General of the Republic of Uganda and the Attorney General of the Republic of Kenya, EACJ ref no 11 of 2011, a case that raised similar issues as those in Mukira Mohochi, but was dismissed on the grounds that it was filed outside the two month limitation period stipulated in art 30.2 of the EAC Treaty. In East African Law Society v The Attorney General of the Republic of Burundi, EACJ ref no 1 of 2014, the issue was whether Burundi's public prosecutor had followed due process in issuing a ban prohibiting a citizen travelling out of the country. Hence it was more a procedural than a substantive issue.

14 Ibid.

15 EAC Treaty, art 9.

16 Each of the five partner states (excluding South Sudan) has a judge representing it on both divisions.

17 Profiles of the current EACJ judges are available at: <http://eacj.org/?page_id=1135> (last accessed 15 November 2017).

18 On the relationship between the profiles of judges of an international court and the court's legitimization strategies, see Madsen, MR “The legitimization strategies of international judges: The case of the European Court of Human Rights” in Bobek, M (ed) Selecting Europe's Judges: A Critical Review of the Appointment Procedures to the European Courts (2015, Oxford University Press) 259 at 270—71Google Scholar.

19 EAC Treaty, art 140.4.

20 See JE Ruhangisa (former registrar of the EACJ) “The East African Court of Justice: Ten years of operation” (paper presented at the Sensitisation Workshop on the Role of the EACJ in the EAC Integration, Kampala 1–2 November 2011), available at: <http://eacj.org/wp-content/uploads/2013/09/EACJ-Ten-Years-of-Operation.pdf> (last accessed 2 December 2017) at 24. The court itself pointed out this limitation in Sitenda Sebalu v The Secretary General of the East African Community; The Attorney General of the Republic of Uganda and Two Others, EACJ ref no 1 of 2010 at 39.

21 EAC Treaty, art 28.

22 Id, art 29.

23 Id, art 30.

24 Id, art 31.

25 Id, art 34.

26 Id, art 36.

27 Id, art 32.

28 References to the EACJ by natural or legal persons, some of which are brought by civil society organizations, account for almost 90% of the cases before the court.

29 In the Matter of a Request by the Council of Ministers of the East African Community for an Advisory Opinion, EACJ appln no 1 of 2008 (Advisory Opinion no 1 of 2008); In the Matter of a Request by the Council of Ministers of the East African Community for an Advisory Opinion Made Pursuant to Articles 14(4) and 36 of the Treaty for the Establishment of the East African Community and Rule 75(4) of the East African Court of Justice Rules of Procedure, 2013, request for an advisory opinion no 1 of 2015.

30 See Calist Mwatela and Others v East African Community, EACJ ref no 1 of 2005, which raised the issue of separation of powers between the Council of Ministers and its sectoral committees on the one hand and the EALA over bills of the EAC. For further discussion of EALA's support to the EACJ, see Alter, KJ, Gathii, JT and LR Helfer “Backlash against international courts in west, east and southern Africa: Causes and consequences” (2016) 27/2 European Journal of International Law 293 at 325–26CrossRefGoogle Scholar.

31 Alter et al, id at 320.

32 In Sitenda Sebalu, above at note 20, the Secretary General was found to have failed to fulfil his obligations in invoking the powers vested in him under art 29 to ensure that the protocol on the court's extended jurisdiction is concluded.

33 Alter et al “Backlash”, above at note 30.

34 EAC Treaty, arts 24–26.

35 EACJ ref no 1 of 2006.

36 EAC Treaty, proviso to arts 27.1 and 30.3.

37 The East African Centre for Trade Policy and Law v The Secretary General of the EAC, EACJ ref no 9 of 2012, paras 58–59 and 68.

38 The Customs Union Protocol, art 24.1 establishes the East African Community Committee on Trade Remedies to settle disputes under the protocol, while the CMP, art 54.2 grants jurisdiction to redress violations of rights guaranteed under it to national judicial, administrative and legislative authority.

39 The East African Law Society, above at note 12 at 24; The East African Centre for Trade Policy and Law, above at note 37, paras 76 and 78.

40 EAC Treaty, art 27.

41 EACJ ref no 1 of 2007 at 16.

42 About 30% of the cases decided on their merits by the EACJ concern issues of fundamental and operational principles of the EAC Treaty, including human rights protection. This represents the majority of the court's case law. See also Gathii, J “Variation in the use of sub-regional integration courts between business and human rights actors: The case of the East African Court of Justice” (2016) 79/1 Law and Contemporary Problems 37Google Scholar; Gathii, J “Mission creep or a search for relevance: The East African Court of Justice's human rights strategy” (2013) 24/2 Duke Journal of Comparative and International Law 249Google Scholar.

43 LR Helfer “Sub-regional courts in Africa: Litigating the hybrid right to free movement” (2015, iCourts working paper series no 32), available at: <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2653124> (last accessed 15 November 2017).

44 See for instance East African Centre for Trade Policy and Law, above at note 37, paras 30–31; Democratic Party v The Secretary General, EAC and Others, EACJ ref no 2 of 2012, paras 23–24; Advisory Opinion no 1 of 2008, above at note 29 at 28–29.

45 Shaw, M International Law (6th ed, 2008, Cambridge University Press) at 932CrossRefGoogle Scholar. Gerard Conway similarly identifies several approaches including: the textual or literal, based on the ordinary or technical meaning of the words; the teleological or purposive, which looks at the object and purpose of the legal instrument; the historical or originalist, which looks at the intention of the framers; the consequentialist reasoning; the evolutionary or innovative interpretation; and the first versus second order justification. See Conway, G The Limits of Legal Reasoning and the European Court of Justice (2012, Cambridge University Press) at 19–21Google Scholar.

46 Summers, R and Taruffo, M “Interpretation and comparative analysis” in MacCormick, DN and Summers, R (eds) Interpreting Statutes: A Comparative Study (1991, Dartmouth Publishing) 461 at 498–99Google Scholar.

47 Posner, R “Legal formalism, legal realism, and the interpretation of statutes and the constitution” (1986–87) 37 Case Western Law Reserve Law Review 179 at 180–81Google Scholar.

48 Eskridge, WN “Dynamic statutory interpretation” (1987) 135 University of Pennsylvania Law Review 1479 at 1489–90CrossRefGoogle Scholar.

49 In Mbugua Mureithi, above at note 13, the court reasoned that the EAC Treaty is an international treaty subject to Vienna Convention, art 31(1) and that the court is guided by that article in its interpretation. Moreover it applied its strict interpretation on time limitations and on this basis dismissed the case without hearing it on its merits.

50 Katabazi, above at note 41.

51 The Attorney General of the United Republic of Tanzania v African Network for Animal Welfare (ANAW), EACJ appeal no 3 of 2011; and The Attorney General of the United Republic of Tanzania v African Network for Animal Welfare, EACJ appeal no 3 of 2014. These cases are popularly referred to as Serengeti.

52 In Peter Anyang’ Nyong'o, above at note 35, the court overruled the contention that the determination of issues arising from the election of EALA members was reserved for appropriate institutions in the partner states, not the EACJ.

53 Gathii “Mission creep”, above at note 42 at 254.

54 See above at note 13.

55 The relevant provisions were arts 6(d) and 7.2 of the EAC Treaty, which set out the fundamental and operational principles that include human rights observance. Art 7 of the CMP concerns the free movement of persons. The referenced articles of the African Charter provide for non-discrimination, freedom from arbitrary arrest and detention, the right to fair and just administrative action, the right to information, and the freedoms of assembly, association and movement.

56 Mukira Mohochi, above at note 13, para 122.

57 Id, paras 104–08.

58 Democratic Party, above at note 44, para 63. The decision was overturned in Democratic Party v The Secretary General, EAC and Others, EACJ appeal no 1 of 2014, paras 73 and 79.

59 CMP, arts 7.5 and 7.6.

60 Mukira Mohochi, above at note 13, para 115.

61 See case C-224/98 Marie-Nathalie D'Hoop v Office National de l'Emploi [2002] ECR I-6191, para 36; case C-274/96 Criminal Proceedings Against Horst Otto Bickel and Ulrich Franz [1998] ECR I-7637, para 27; case C-303/12 Guido Imfeld and Nathalie Garcet v État Belge [2013], para 64.

62 Shanique Myrie v The State of Barbados [2013] CCJ 3 (OJ), para 70. The applicant in this case was a Jamaican citizen who was denied entry into Barbados and deported back to her home country on the alleged ground that she had been untruthful about her host in Barbados. She claimed before the CCJ that the respondent state had violated her right to free movement under the Caribbean Community Law. Regarding limitations on a community citizen's free movement, the court's holding was “that no restrictions in the interests of public morals, national security and safety, and national health should be placed on the right of free entry of a national of any Member State unless that national presents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society”.

63 Shaw International Law, above at note 45 at 933.

64 Van Damme, I “Treaty interpretation by the WTO appellate body” (2010) 21/3 European Journal of International Law 605 at 620CrossRefGoogle Scholar.

65 EAC Treaty, arts 5.1–5.3.

66 Above at note 51. The court relied on the EAC Treaty, arts 5.2 and 5.3, which comprise part of the community's objectives, and arts 111–14, which generally provide for co-operation in environment and natural resources management.

67 The Attorney General of Uganda and Another v Omar Awadh and Others, EACJ appeal no 2 of 2012, para 59.

68 Id, paras 48–49.

69 Id, paras 49 and 59.

70 Possi, A “The East African Court of Justice: Towards effective protection of human rights in the East African Community” (2013) 17 Max Planck Yearbook of United Nations Law 1 at 19Google Scholar.

71 Mbugua Mureithi, above at note 13. Other cases include Hilaire Ndayizamba v Attorney General of Burundi and the Secretary General, EAC, EACJ ref no 3 of 2012; and Georges Ruhara v The Attorney General of Burundi, EACJ ref no 4 of 2014.

72 EACJ ref no 1 of 2008. The court emphasized this position further in Alcon International Limited v Standard Chartered Bank of Uganda and Two Others, EACJ ref no 6 of 2010.

73 C-36/74, BNO Walrave and LJN Koch v Association Union Cycliste Internationale, Koninklijke Nederlandsche Wielren Unie et Federación Española Ciclismo. In this case, the court had to determine whether the treaty articles in question could be applied to legal acts of persons or associations who do not come under public law. In a teleological manner, the court reiterated that the principle of non-discrimination on grounds of nationality as articulated in the EEC Treaty applies in all spheres of gainful employment and provision of services. It thus reasoned (para 18) that the objectives of the community “would be compromised if the abolition of barriers of national origin could be neutralized by obstacles imposed by organizations which do not come under public law”.

74 Sitenda Sebalu, above at note 20 at 41.

75 In Hilaire Ndiyazamba, above at note 71, the court declined to make orders that the applicant be allowed to enjoy his freedom and should be released immediately, on the basis that it lacked the jurisdiction to grant such prayers. See also Venant Masenge v The Attorney General of the Republic of Burundi, EACJ ref no 9 of 2012.

76 Timothy Alvin Kahoho v The Secretary General of the EAC, EACJ appeal no 2 of 2013, para 83.

77 Serengeti, EACJ appeal no 3 of 2014, above at note 51, paras 52–53 (emphasis original).

78 Id, para 51.

79 Joined Cases C-6/90 and 9/90, Andrea Francovich and Others v Italy [1991] ECR I-5357, para 35.

80 Shanique Myrie, above at note 62. The CCJ awarded the applicant damages for breach of the right to travel within the community without harassment or the imposition of impediments. The harassment to which she was subjected included a humiliating cavity search and overnight detention in a cell prior to her expulsion from Barbados.

81 Id, para 94. The court relied on its earlier decision in TCL v Guyana [2009] CCJ 5 (OJ), in which it acknowledged the lack of express treaty provisions on sanctions for breach of the treaty, but applied the principle of state liability as enunciated in Francovich v Italy. The CCJ reasoned (para 24) that “the new Single Market based on the rule of law implies the remedy of compensation where rights which enure to individuals and private entities under the Treaty are infringed by a Member State”. In awarding damages in Shanique Myrie, the court went on to specify and apply the conditions under which compensation may be granted.

82 Gathii “Variation”, above at note 42 at 45 and 51–54.

83 See for instance, the court's decision on arts 5–7 in Attorney General of Kenya v Independent Medical Legal Unit, EACJ appeal no 1 of 2011 at 12.

84 EAC Treaty, art 6(d). See Democratic Party, above at note 44, para 63.

85 Democratic Party appeal no 1, above at note 58, paras 73 and 79.

86 Omar Awadh, above at note 67, para 48. This part of the court's decision is later alluded to and perhaps re-stated in Mukira Mohochi, above at note 13, para 28.

87 Van Damme “Treaty interpretation”, above at note 64 at 622–23.

88 Ibid.

89 Id at 624. This transition is quite evident in the statement of the WTO AB in the case of European Communities: Measures Affecting Asbestos and Asbestos-Containing Products WT/DS135/AB/R, where it decided (para 88) that the term “like products” “must be interpreted in light of the context, and of the object and purpose, of the provision at issue, and of the object and purpose of the covered agreement in which the provision appears”. The same approach was reiterated in European Communities: Customs Classification of Frozen Boneless Chicken Cuts WT/DS269/AB/R, WT/DS286/AB/R, paras 175–76.

90 Pauwelyn, J and Elsig, M “The politics of treaty interpretation: Variations and explanations across international tribunals” in Dunoff, JL and Pollack, MA (eds) Interdisciplinary Perspectives on International Law and International Relations: The State of the Art (2013, Cambridge University Press) 445 at 461Google Scholar.

91 Alter, K, Helfer, L and Madsen, M “How context shapes the authority of international courts” (2016) 79/1 Law and Contemporary Problems 1Google Scholar.

92 Id at 9.

93 Id at 16.

94 Gathii “Variation”, above at note 42 at 37 and 54.

95 Caserta, S and Madsen, M “Between community law and common law: The rise of the Caribbean Court of Justice at the intersection of regional integration and post-colonial legacies” (2016) 79/1 Law and Contemporary Problems 89 at 111–12Google Scholar.

96 Gathii argues that most human rights cases brought before the EACJ are largely aimed at “naming and shaming” errant governments, which in itself may be satisfactory for the largely civil society litigants: Gathii ”Variation”, above at note 42 at 61.

97 Above at note 72.

98 Ruhangisa “The East African Court of Justice”, above at note 20 at 29–30. Gathii “Variation”, above at note 42.

99 Eskridge “Dynamic statutory interpretation”, above at note 48 at 1496.

100 Pauwelyn and Elsig “The politics of treaty interpretation”, above at note 90 at 462.

101 Dothan, S Reputation and Judicial Tactics: A Theory of National and International Courts (2015, Cambridge University Press) at 52–54Google Scholar.

102 Madsen “The legitimization strategies”, above at note 18 at 264.

103 Id at 270–71; Olsen, H “International courts and the doctrinal channels of legal diplomacy” (2015) 6/3–4 Transnational Legal Theory 661CrossRefGoogle Scholar.

104 Dothan, S “In defence of expansive interpretation in the European Court of Human Rights” (2014) 3 Cambridge Journal of International and Comparative Law 508 at 524CrossRefGoogle Scholar.

105 Alter et al “Backlash”, above at note 30 at 302.

106 Pauwelyn and Elsig “The politics of treaty interpretation”, above at note 90 at 463.

107 Id at 468, citing Arnull, A The European Union and its Court of Justice (2006, Oxford University Press) at 612Google Scholar and Lasser, M Judicial Deliberations: A Comparative Analysis of Judicial Transparency and Legitimacy (2004, Oxford University Press)Google Scholar.

108 Pauwelyn and Elsig, id at 462 and 465.

109 EAC Treaty, art 35.2.

110 Pauwelyn and Elsig “The politics of treaty interpretation”, above at note 90 at 465–66.

111 Ibid.

112 Alter et al “Backlash”, above at note 30 at 322–23.

113 Pauwelyn and Elsig “The politics of treaty interpretation”, above at note 90 at 466.