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Legitimacy of the East African Community

Published online by Cambridge University Press:  18 September 2009

LO Wauna Oluoch
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Abstract

The world currently has a profusion of intergovernmental organizations charged with various public functions previously reserved for states. The operations of these organizations affect the ordinary lives of individual citizens in the member states. Yet these organizations are not legitimate, based on the standard expected of a democratic state government. This article joins the chorus demanding the legitimization of international organizations that perform public functions, taking into account their peculiar circumstances and nature, and with specific reference to the East African Community. It sets out criteria for assessing legitimacy and examines the organs, functions and administration of the East African Community against those criteria. It argues that, as presently established and structured, the East African Community seriously lacks legitimacy. There is therefore an urgent need for reform, to avoid this body becoming yet another statistic of moribund regional integration schemes in Africa.

Type
Research Article
Information
Journal of African Law , Volume 53 , Issue 2 , October 2009 , pp. 194 - 221
Copyright
Copyright © School of Oriental and African Studies 2009

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References

1 The Treaty entered into force on 7 July 2000.

2 Kenya and Uganda were colonized by Britain. Tanzania was later put under British administration by the UN, having been colonized by Germany, in the aftermath of the second world war.

3 For a general overview of the dissolution of the original East African Community, see Hazelwood, AEconomic Integration: The East African Experience (1975, Heinemann)Google Scholar. For an analysis of the factors that led to the collapse, see Hazelwood, A “The end of the East African Community: What are the lessons for regional integration schemes” in Onwuka, RI and Sesay, A (eds) The Future of Regionalism in Africa (1985, Macmillan Publishers) 172Google Scholar.

4 Schori, P “Meeting the challenge of globalisation” (1999) Courier at 29Google Scholar.

5 This is in the context that, despite Africa boasting numerous regional organizations, none of them has been successful in attaining its objectives. Most of these organizations have nothing to report. See, for example, Y Yang and S Gupta “Regional trade agreements in Africa: Past performance and the way forward” (IMF working paper WP/05/36). Also see Ravenhill, J “The future of regionalism in Africa” in Onwuka, RI and Sesay, A (eds) The Future of Regionalism in Africa (1985, Macmillan Publishers) 205Google Scholar, where he advocates a shift to an alternative basis for successful regionalism in Africa, the application of traditional theories of regionalism in Africa having been responsible for failure as the prerequisite fundamentals were not established.

6 Fox, GH “Internationalizing national politics: Lessons for international organizations” (2007)13/2 Widener Law Review 265 at 269Google Scholar.

7 RO Keohane “The contingent legitimacy of multilateralism” (GARNET working paper no 09/06, September 2006) at 2, available at: <http://www.garnet-eu.org/fileadmin/documents/working_papers/0906.pdf> (last accessed 4 January 2007).

8 Ibid. It should be noted that legitimacy is a multidimensional concept and has no agreed definition. Its meaning varies according to the epistemology of the discipline under which it considered.

9 For further insight into the meaning of “legitimacy”, see also Hurrell, A “Legitimacy and the use of force: Can the circle be squared” (2005) 31 Review of International Studies 15CrossRefGoogle Scholar.

10 Keohane “The contingent legitimacy of multilateralism”, above at note 7.

11 For a detailed analysis of this categorization, see Scharpf, FGoverning in Europe: Effective and Democratic? (1999, Oxford University Press)CrossRefGoogle Scholar.

12 Keohane “The contingent legitimacy of multilateralism”, above at note 7 at 3.

13 Id at 15.

14 Ibid.

15 Id at 15–16.

16 Id at 16.

17 This agreement is the schedule to the East African Community Mediation Agreement Act, chap 4 of the Laws of Kenya.

18 The drive for African regionalism was launched in 1980 at the United Nations conference on Regionalism and the New International Economic Order, which recommended that developing countries should urgently and seriously study the need for regionalism in order to realize the ideals of the new international economic order. See “UNITAR conference holds that regionalism is an integral part of new economic order” (1980) 17/6 UN Chronicle 49. As of 2005, nearly all countries were participating in at least one regional organization. About 300 regional trade agreements were in force. See Yang and Gupta “Regional trade agreements”, above at note 5 at 5.

19 The Treaty, art 4(1).

20 There is no record of involvement of civil society, labour unions or any other stakeholders in the process leading to the establishment of the Community.

21 See M Nassali “The East African Community and the struggle for constitutionalism: Challenges and prospect”, available at: <http://www.kituochakatiba.co.ug/EAC2000.htm> (last accessed 10 July 2006).

22 Such bodies included the East African Law Society which had just been established in 1995 and the NGO Coalition for East Africa.

23 Nassali “The East African Community”, above at note 21 at 3.

24 Kenya's Official Secrets Act, chap 187 of the Laws of Kenya, literally binds all civil servants to secrecy in the conduct of government affairs.

25 The Treaty, art 9(1)(g).

26 Id, art 9(2). The Summit has established the Directorate of Customs and Trade of the Community and the East African Community (EAC) Committee on Trade Remedies (under the Protocol on the Establishment of the East African Customs Union) and the Lake Victoria Basin Commission (under the Protocol for Sustainable Development of Lake Victoria Basin) as Community institutions.

27 Id, art 9(3). The Treaty defines surviving institutions of the former East African Community to mean the East African Civil Aviation Academy, Soroti, the East African Development Bank, the East African School of Librarianship and the Inter-University Council of East Africa.

28 Id, art 10(1).

29 Id, art 11(1–3).

30 Id, art 11(9).

31 See id, art 12.

32 Among these important powers is the power to approve any proposed amendment to the Treaty under art 150(6) of the Treaty. This power is liable to abuse by the Summit for political reasons to the detriment of the wider interests of the Community at large.

33 The Treaty, art 14(1) and (2).

34 Currently, the Council has formed 16 Sectoral Councils, covering: agricultural and food security; approximation of municipal laws; bureaux of standards; education and culture; energy; environment; foreign policy; health; immigration; labour and employment; gender and community development; legal and judicial affairs; tourism and wildlife; trade and industry; statistical bureaux; and transport and communication.

35 The Treaty, art 14(3).

36 Id, art 14(4).

37 See id, art 15.

38 Id, art 18.

39 Id, art 20. Currently there are 19 Sectoral Committees, covering: agriculture and food security; capital markets development; EAC statistics; education, culture and sports; energy; environment and natural resources; facilitation of movement of persons, immigration, labour, employment and refugees; finance and administration; fiscal affairs; gender and community development; inter-parliamentary committee for East Africa; interstate defence; interstate security; Lake Victoria development programme; legal and judicial affairs; monetary affairs; trade, industry and investment; tourism and wildlife conservation; and transport, communications and meteorology.

40 Id, art 21.

41 Id, art 23(1).

42 Id, art 23(2) as amended.

43 Ten new judges of the Court were sworn in on 26 June 2008 in Kigali, Rwanda during the ninth Summit meeting of the Community, following the amendment of the Treaty on 14 December 2006 and 20 August 2007. The first six judges of the Court retired.

44 Id, art 24(1) and (2) as amended.

45 See the proviso to art 24(1) as amended. Before the amendment, the Court had no division and comprised six judges.

46 The Treaty, art 24(7) and (9) as amended.

47 See Oluoch, LOW “The East African Court of Justice: Review of its composition, administration and jurisdiction” in Kindiki, K (ed) Reinforcing Judicial and Legal Institutions: Kenya and Regional Perspective (2007, Judicial Watch Series, ICJ-Kenya Publications) vol 5, 157 at 159Google Scholar.

48 The Treaty describes member states as “partner states”.

49 See Oluoch “The East African Court of Justice”, above at note 47 at 160, particularly footnote 10.

50 Ibid.

51 The Treaty, art 25.

52 Id, art 24(2) and (3) as amended. This provision is intended to ensure continuity in the court's operations by guaranteeing the availability of judges at any time.

53 See id, art 26(1) as amended.

54 See id, art 26(2) as amended. The Treaty amendment on removing a judge from office appears to legalize the practice of appointing sitting judges from municipal courts of member states to the Court, contrary to the express provisions of art 43, thereby creating conflicts between Treaty provisions.

55 See id, art 23 read with art 27 as amended.

56 Id, art 31.

57 Id, art 32.

58 Id, art 36(1).

59 Calist Andrew Mwatela and Two Others v EAC, application no 1 of 2005 (unreported), available at: <http://www.eac.int/judgments.html> (last accessed 10 November 2006).

60 On the importance and role of the court, See Oluoch “The East African Court of Justice”, above at note 47.

61 Calist Andrew Mwatela and Two Others v EAC, above at note 59; Prof Anyang’ Nyong'o and Ten Others v Attorney General of the Republic of Kenya and Five Others, reference no 1 of 2006, EACJ (unreported); and James Katabazi and 21 Others v Secretary General of the EAC and The Attorney General of the Republic of Uganda, reference no 1 of 2007, all available at: <http://www.eac.int/judgments.html> (last accessed 30 May 2008).

62 The Court had issued an interim injunction restraining the clerk of the Assembly and the secretary general from swearing in Kenyan representatives as members of the Assembly until the reference had been heard and determined.

63 Prof Anyang’ Nyong'o, above at note 61 at 29–30 of the judgment.

64 Id at 31–34.

65 Id at 37 and 43.

66 For the amendments, see legal notice no 30 of 20 March 2007 (Government Printer, Nairobi, Kenya).

67 Prof Anyang’ Nyong'o, above at note 61.

68 See also Oluoch “The East African Court of Justice”, above at note 47 at 160 and footnote 10.

69 See the preamble to the legal notice, above at note 66.

70 The judgment was delivered on 30 March 2007.

71 Art 48 of the Treaty, for example, only provided for members of the Assembly to be drawn from the three founding states. Similarly art 62 provided for words of enactment to appear in every Community bill as “Enacted by the East African Community and assented to by the President of the Republic of Uganda, the President of the Republic of Kenya and the President of the United Republic of Tanzania”. The two articles were later amended on 20 August 2008 to reflect the membership of the two new states.

72 See Oluoch “The East African Court of Justice”, above at note 47 for a detailed analysis of this draft protocol.

73 The Treaty, art 48(1). Each member state elects nine members. The number of elected members increased following the accession of Rwanda and Burundi to the Community in July 2007.

74 There is however no legal obligation on the Council to implement the recommendations.

75 The Treaty, art 62(1).

76 The former East African Community had the same number of members from each member state (arts 56 and 57 of the former treaty). Since 1977, the populations of the countries have risen more than threefold.

77 This is particularly so in the case of Uganda and Kenya, where the national assembly rules do not provide for the election of members to the Assembly.

78 For the second Assembly, the nine slots were therefore distributed as follows: in Uganda, the governing National Resistance Movement Party had seven slots with the remaining two slots going to the opposition; in Tanzania, the governing Cha Cha Mapenduzi Party had eight slots; while in Kenya the governing NARC party was entitled to five slots with the remainder shared between the opposition parties based on their parliamentary strength.

79 See above at note 61. This case is discussed above under the sub-heading “The East African Court of Justice”.

80 See for instance arts 14(3)(b) and 59 of the Treaty giving the Council and the members of the Assembly the right to present bills before the Assembly.

81 See above at note 59.

82 Id, at 18.

83 Id, at 21.

84 The Treaty, art 66.

85 See id, art 71(1).

86 See for example id, art 29, which empowers the secretary general to cite a member state before the Court for violating the Treaty. Again, the failure by the secretary general to act may be explained by the process of his/her appointment, which is usually by the head of state followed by an automatic endorsement by the Summit. It is therefore a political appointment and one hardly expects the servant to question his master, especially where the servant has no security of tenure. It is therefore understandable that the incumbent secretary general, Amb Juma Mwapachu, thanked the president of the United Republic of Tanzania, His Excellency Jakaya Kikwete, for nominating him for appointment by the Summit as the secretary general of the Community in his speech before the Summit on 30 November 2006 at Arusha, Tanzania, available at the East African Community website: <http://www.eac.int/downloads/speeches.html> (last accessed 4 May 2008).

87 This provision, if strictly observed, would go a long way to enforcing Community law within the Community.

88 For example, seven years after its inception, the Community has made no effort to ensure the harmonization of Community laws with those of member states. While art 8(4) of the Treaty demands that, where there is a conflict between Community and national law, Community law prevails, the constitutions of the member states proclaim their respective supremacy over all laws, including treaties (see secs 3 and 2 of the Kenyan and Ugandan Constitutions respectively). This situation does not allow for Community law to be enforced in national jurisdictions where that law conflicts with the national constitution, which greatly undermines implementation of Community programmes.

89 The Treaty, art 5(2).

90 Id, art 6(d).

91 See id, art 7(1) for a full list of the Community's operational principles.

92 Id, arts 8(1) and (2).

93 Id, art 8(5).

94 Kenya gave effect to the Treaty through the Treaty for the Establishment of the East African Community Act 2000, Uganda through the East African Community Act 2002 and Tanzania through the Treaty for the Establishment of the East African Community Act, no 4 of 2001. None of these statutes expressly provides that Community law and its organs and institutions shall take precedence over similar national ones. Sec 3 of Kenya's Constitution declares that “this Constitution is the supreme law of the Republic of Kenya and any other law which is inconsistent with it is null and void to the extent of that inconsistency”. Uganda's Constitution provides in sec 2 that the constitution is the supreme law of Uganda and that, if any other law or any custom is inconsistent with any of its provisions, the constitution shall prevail and the other law or custom shall be void to the extent of the inconsistency.

95 Okunda v Republic (1970) EA 453. The issue was a conflict between an act of the former East African Community and the Kenyan Constitution.

96 Such measures include non-tariff barriers maintained by member states yet outlawed under the Treaty, the Protocol and the East African Customs Management Act.

97 See the East African Community 2006/2007 Business Climate Index Survey, available at: <http://www.eabc-online.com.info/publications/bci> (last accessed 24 January 2008). See also Oluka, BH “Protectionism: Kenya continues to close market to Uganda exporters, although Kenchick is allowed to export day-old chicks to Uganda” (18–24 February 2008) The EastAfrican at 25Google Scholar.

98 See Mwamunyange, J “EAC tax harmonization deal has along way to go” (22–28 May 2006) The EastAfrican at 6Google Scholar.

99 See “NIDA Textiles to get tax waiver after all – if it exports 50pc of output” (3–9 July 2006) The EastAfrican at 21; Edwin, W “Dispute over NIDA textile waiver could tear customs union apart” (20–26 November 2006) The EastAfrican at 2Google Scholar; Mande, M “EA business lobby may sue over NIDA tax waiver” (20–26 November 2006) The EastAfrican at 3Google Scholar; and East African Business Council “Press advertisement” (29 January – 4 February 2007) The EastAfrican at 35Google ScholarPubMed. This matter was later referred to the Secretariat and the Council. The author has not been able to establish the action taken by the Community.

100 In June 2003 the member states agreed on a three tariff CET structure for the customs union: 0% for meritorious goods, raw materials and capital goods; 10% for intermediate goods; and 25% for consumer goods.

101 See Edwin, W “EAC to review external tariffs as Dar retains 10pc duty on palm oil” (19–25 June 2006) The EastAfrican at 2Google Scholar. See also Edwin, W “EAC states allowed to breach common external tariff with impunity” (4–10 December 2006) The EastAfrican at 6Google Scholar, which reported that member states had granted each other the concessions they had demanded at the Council on matters that breach the terms and conditions of the customs union.

102 See Information and Public Relations Office, EAC Secretariat “East African Community: 10th anniversary of the launching of the EAC Secretariat” (3–9 April 2006) The EastAfrican at 32–34Google Scholar.

103 Stahl, M “The East African Community: Role model for Africa?” in Scheidtweiler, T and Scholz, I (eds) Worlds Apart: Local and Global Villages - From Villagisation to Globalisation in One Generation (2004, IV KAAD Africa Publications) 74 at 77Google Scholar.

104 See Yang and Gupta “Regional trade agreements”, above at note 5 at 12.

105 See Janning, J and Giering, C “Strategien gegen die Institutionelle Erosion” [“Strategies against institutional erosion”] in Giering, WC, Janning, J, Merkel, W and Stabenow, M (eds) Demokratie und Interessenausgleich in der Europaeischen Union [Democracy and the Reconciliation of Interests in the European Union] (1999, Guetersloh: Verlag Bartelsmann Stiftung) 39Google Scholar on proposals for European Union reform and the aims of those reforms, which in the view of the author also apply in the case of the Community.

106 Running an efficient website cannot be beyond the capability of five sovereign states and requires more in the way of administrative reform than financial resources. The World Trade Organization runs a document information facility, while the European Union's publications office gives free access to information and documents on-line. There is no reason why the Community could not establish a proper website for the purposes of opening up to the people of East Africa.

107 The role and potential of NGOs and civil society in initiating meaningful reforms have already been demonstrated in international law by the successful conclusion of the 1997 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and their Destruction, which was mainly driven by NGOs. Leaving the Community's affairs entirely in the hands of the governments of the member states may lead to its stagnation.

108 The troika system applies for the main organs of the Southern African Development Community.

109 A similar system applies in the European Union regarding the appointment of the president of the EU Commission and his commissioners.