3 1 Access to the Court

Unlike the Protocol establishing the African Court which requires member states to make separate declarations in order to allow direct access to individuals and NGOs to institute cases directly before the African Court,20 the EAC Treaty unconditionally grants audience before the EACJ to all persons resident in the partner states.21 Persons in this context refers to both legal and natural persons. Even though the African Court was established with the core mandate of enforcing the African Charter, which contains extensive protection on human rights, only nine African states have accepted the Court’s competence to receive cases from the NGOs and individuals. This grim reality questions the capability of the African Court to live up to its objectives of promoting and protecting human and peoples’ rights within the African continent. In appreciating this shortcoming, it is recalled that the EACJ had been called upon to compel the EAC member states to accept the competence of the African Court so that residents could have expansive fora to seek redress for human rights violations.22 Even though the EACJ could not grant the orders sought, the mere filing of that reference demonstrates the desire by the EAC residents to have the utmost access to justice particularly regarding human right issues. In the absence of the EAC partner states making a declaration under Article 34(6) of the Protocol establishing the African Court, the residents are left with little alternative but to look up to the EACJ for enforcement of human rights. Seemingly, the EACJ is continuously living up to the expectation as is demonstrated from the progressive jurisprudence emanating on the topic.

Access to the EACJ is further made easier because, unlike the African Court, there is no requirement for exhausting the local remedies before filing a case.23 The only hindrance, which will be discussed in more detail later on, is the prescribed time limit within which a person can file a claim. Furthermore, litigating before a sub-regional court such as the EACJ is likely to be cheaper and faster compared to a regional body.24 This arises because of the size of the population which is being served by the sub-regional Court as compared to the regional Court as well as the proximity of the Court to the population it serves. Currently, the EACJ only serves six member states as opposed to a regional or an international court which would obviously have a wider application and that would translate to a bigger workload. Getting services before the EACJ has been made even easier because the Court currently has sub-registries in all the capital cities of the member states excluding South Sudan.25 This has made the Court more responsive to the litigants needs by allowing them to file and receive correspondences through the sub-registries. These sub-registries have greatly contributed to the increase in the number of cases filed.26 In addition, the Court may conduct hearings at a place different from where it is currently situated in Arusha,27 thus bringing justice closer to the people. All these factors contribute to accessing the Court and ensuring that justice is delivered in a timely manner. Furthermore, since the outbreak of Covid-19 in 2020, the Court has fully embraced technology with all hearings and any court work happening virtually. The judges and litigants are able to converge virtually, from their respective member states. The Court has therefore been able to continue with its work without any adverse interferences.

3 2 Justiciable disputes before the EACJ

Natural and juristic persons can move the Court to question the legality of any act, regulation, directive, decision or action of a partner state or an institution of the Community on grounds that there is an infringement of the Treaty.28 It is important to note that only a partner state or an organ or institution of the EAC can be sued as a respondent. The actions or inactions of state organs are attributed to the state party. Institutions such as the arms of government, being the executive, parliament and judiciary would be considered as organs of state for purposes of impugning their actions or inactions before the EACJ. On this basis, the EACJ has stated that a partner state would be held responsible where judicial decisions of its national courts violate the Treaty.29 The impact of this is that even the judicial institutions are not immune from the EACJ’s scrutiny. What this means is that a person can approach the EACJ, impugning a decision delivered at the domestic courts. In this regard, the EACJ has found that where a national court violates the domestic law, that constitutes infringement of the Treaty.30 In terms of human rights protection therefore, a person needs not be complacent where the national courts fail to enforce fundamental rights and freedoms. One can still ventilate an issue before the EACJ specifically demonstrating how the said domestic court has acted contrary to the domestic laws thus violating the Treaty. Notably, in such a case, the EACJ would not be exercising any appellate jurisdiction over the decision of the domestic court. Rather, a litigant is expected to file a reference before the First Instance Division detailing violations of the Treaty arising from the impugned decision of the domestic court. If dissatisfied by the decision of the First Instance Division, a litigant has the option of filing an appeal before the Appellate Division.

The Martha Karua31 case delivered by the First Instance Division on 30 November 2020, evidently demonstrates how the EACJ has taken up the mantle as the protector of human rights where a decision of the highest domestic court fails to enforce fundamental rights of a litigant. In this case, the applicant argued that the Supreme Court of Kenya failed to interpret the Constitution and other laws of Kenya in a manner that upheld the rule of law, democracy and human rights.32 It was argued that the impugned decision of the Supreme Court offended the EAC Treaty, the Universal Declaration for Human Rights as well as the African Charter by failing to uphold the rule, right of access to justice and a fair hearing.33 The Supreme Court had found that the time limited by the Constitution of Kenya could not be expanded.34 The EACJ disagreed and held that a court cannot interpret the Constitution in a manner that infringes the fundamental rights of litigants where there is a lacuna in law.35 That further, the Constitution of Kenya provides, “an appropriate legal framework for the solution to the unjust situation the applicant found herself in”.36 Thus, the EACJ faulted the Supreme Court of Kenya for failing to interpret the Constitution of Kenya in a manner that promoted the applicant’s right of access to justice, human dignity, equity and social justice. The Court thus found that the impugned decision contravened the principle of the rule of law enshrined under Articles 6(d) and 7(2) of the Treaty. In the end, the Republic of Kenya was found liable for a breach of its Treaty obligations through the acts or omissions of its judicial organ and the applicant was awarded general damages in the sum of USD $ 25 000.37

This decision shows that the domestic courts have a duty to interpret their internal laws in a manner that enforces the fundamental rights of persons. Failure to do so would attract the intervention of the EACJ which would not hesitate to hold a partner state responsible for such breaches while at the same time issuing appropriate remedies to the affected persons. Therefore, EAC residents have an alternative forum for litigating issues already determined by the domestic courts. However, since there is no requirement for exhausting the local remedies, an aggrieved person would not be obligated to litigate an issue that can be determined by the EACJ before the domestic courts or where the process has begun, to exhaust the judicial avenues provided in their country. In fact, once the EACJ is seized of the matter, it has no obligation to await the conclusion of similar proceedings ongoing before the national court.38 This is because, the EACJ exercises a specific mandate of interpreting the Treaty and while doing so, it does not pay deference to any other court. In the same measure, the national courts are encouraged to refer any question of interpreting or applying the Treaty to the EACJ wherever such questions confront them.39 On occasions where the national courts decide to interpret the Treaty, the decisions of EACJ on similar matters take precedence.40

Even though the doors of EACJ remain open to receive possible claims, where a person goes through numerous court processes in search of justice, the objective that they seek to obtain may be defeated. Thus, where domestic courts are perceived to be human rights non-compliant, a person may choose to move the EACJ from the very beginning.

As a word of caution though, the EACJ is not an appellate court against decisions of the domestic courts. Therefore, the EACJ cannot overturn a decision of a domestic court.41 However, it reviews the impugned decision to confirm compliance with the Treaty. Thereafter the EACJ can make any consequential orders arising from such interrogation. In the East African Civil Society Organization’s Forum case, the Appellate Court was categorical that:

[T]he Trial Court is not expected to review the impugned decision ... looking for new evidence or some mistake, fraud or error apparent on the face of the record. The Trial Court will however have to sift through the impugned decision and evaluate it critically with a view of testing its compliance with the EAC Treaty and then make a determination. In so making the said determination the Trial Court does not quash the impugned decision as if it were a court exercising judicial review powers but rather make declarations as to the decision’s compliance with the EAC Treaty. 42

The above shows that even though the EACJ does not exercise appellate powers against the decisions of the domestic courts, the EACJ still acts as a watch dog. This is because the EACJ can still render that decision inoperative where it finds that the decision does not comply with the Treaty. In other words, the EACJ can arrive at a different finding from a domestic court. A case in point is where a domestic court approves the enactment of a certain law, but the EACJ finds that this law is contrary to certain human rights principles and thus an infringement of the Treaty. In such a case, the EACJ would then require the partner state to ensure that the law is brought into conformity with the Treaty.43

Beyond the domestic judicial decisions, other actionable claims include circumstances when the state violates its own laws. A successful claim will then arise if those violations are found to be inconsistent with the Treaty. Violations can take the form of actions or omissions. Where the complaint is that the action is contrary to a state’s internal law, then the Court will interrogate that internal law to determine whether the action complained of infringes the Treaty.44 Therefore, where a national law protects the socio-economic rights of the citizens, and a partner state or organs of a state acts contrary to the said law, a person can compel the state’s enforcement of that law through the EACJ.

Laws of partner states can also be challenged if they do not comply with the expected standard of human rights. By doing so, the EACJ holds partner states accountable for the enforcement of the principles of the Treaty. In the decision of the Media Council of Tanzania the Court declared several provisions of the Tanzania Media Services Act, 2016 to be a violation of the Treaty.45 The Court then directed the Republic of Tanzania to bring the Media Services Act into compliance with the Treaty. Violations have also arisen where a state fails to abide by the court orders (of the national courts).46 Such an action is a violation of the rule of law, a principle which is recognised by the Treaty.

3 3 Remedies

In the case of Margaret Zziwa, the Appellate Division held that the EACJ has the power to issue appropriate remedies including injunction, reparations and declaratory orders.47 In African Network for Animal Welfare the Court granted an injunction as a sanction against threatened infringement of the Treaty. This case acknowledged that the spheres of human rights protection go beyond individual violations to include damages to ecosystems and the environment.48 In the Media Council case,49 the Court declared certain provisions of the impugned legislation of Tanzania to be in violation of Articles 6(d) and 7(2) of the Treaty. The Court then directed the Republic of Tanzania to take measures necessary to bring the legislation into compliance with the Treaty. The Court also has powers to grant interim relief in order to preserve the subject matter of the case. Hence, as far as reparation is concerned, it is clear that the EACJ is not handicapped to fashion an appropriate remedy where the need arises in order to redress human rights violations. This assurance goes to great lengths in giving confidence to the now accepted human rights jurisdiction of the EACJ.

4 1 Time limit

Reference by natural and legal persons should be instituted before the EACJ within two months from the date when the cause of action arises.50 The time limit was introduced by way of an amendment to the Treaty which was approved by the Heads of States Summit on 14 December 2006.51 Scholarly articles suggests that the amendment was introduced as a retaliatory measure against an unfavourable decision by the Court towards one of the partner states.52 In interpreting the two-months’ limitation period, the EACJ, particularly the Appellate Division has adopted a very stringent position which may hinder access to justice. In this regard, the Appellate Division has failed to recognise the principle of continuing violation which would exclude time limitation where the infringement complained of still subsists. In Omar Awadh the Appellate Division overturned the decision of the First Instance Division and reasoned that “there is nothing in the express language of Article 30(2) that compels any conclusion that continuing violations are to be exempted from the two-month limit”.53 What the Appellate Court failed to recognise is that a continuing violation does not have a defined ending.54 Hence, there cannot be a lapse of time when the violation is still taking place. This principle of continuing violation protects the enforcement of human rights by ensuring that one is able to get redress where the human rights are still being suppressed irrespective of when that suppression begun.

However, the Appellate Division was very categorical that for purposes of determining the commencement or expiry of the two-months’ time limit, it is either the start date of the act complained of or the date when the complainant first acquired the requisite knowledge.55 This same reasoning has been applied in other cases effectively locking out aggrieved litigants from accessing the Court. 56

Even more unfortunate is that the Appellate Court has found that the two-months’ limitation period is reasonable.57 It is suggested that the two-months’ limitation period especially concerning violations of human rights is very stringent and does not align with comparative practices. The African Court for example, does not have a specified time limit within which a claim should be filed. The case only needs to be filed within a reasonable time from the date of exhausting the local remedies.58 On the other hand, Article 9(3) of the Supplementary Protocol of Economic Community of West African States (ECOWAS) Community Court of Justice provides a time limit of three years for actions against community institutions or member states. While the EACJ has observed that it cannot order for an amendment of the Treaty to expand the time of filing a claim,59 the Court should reconsider its position and recognise the principle of continuing violations in order to ensure that victims of human rights abuses are not locked out of the seat of justice particularly where the violation is still ongoing.

It is also noted that the time limitation is only with respect to claims filed by natural and legal persons as opposed to other bodies who have a locus standi before the Court. The Court has already found this to be discriminatory in the case of Steven Deniss.60 In light of this, steps should be taken towards eliminating that discriminatory element and consideration should be given by the partner states through Treaty amendment.

4 2 Lack of an express human rights jurisdiction

As already stated, the Court does not have an express human rights jurisdiction. Even though this has not dampened the spirit of the Court in redressing human rights violations, there is likely to be greater protection of human rights where such jurisdiction is expressly recognised and provided for in the Treaty. At the very least, litigants would be able to approach the Court directly questioning infringement of human rights as opposed to the current position where a claim must be based on a violation of a principle in the Treaty. Additionally, an express mandate would give the Court more confidence in enforcing human rights and also possibly a wider mandate in terms of human rights instruments that can be interpreted and applied by the Court. For example, the ECOWAS Community Court of Justice has an expansive mandate with regards to jurisdiction on human rights matters. In this respect, one of the fundamental principles of ECOWAS according to Article 4(g) of the Revised Treaty is the recognition, promotion and protection of human and people’s right in accordance with the provisions of the African Charter on Human and People’s Rights. 61

Indeed, the EACJ has been criticised for assuming a human rights’ jurisdiction in the absence of an express mandate.62 The EACJ has been urged to exercise more caution and avoid exercising judicial craft. In this regard, it is noted that only a minority of scholars support this proposition and instead the EACJ has been hailed for its meaningful interpretation of the EAC Treaty. This does not however undermine the need for an express human rights Protocol as envisaged under Article 27(2) of the Treaty.

Notably in 2010, in Sitenda Sebalu the question for determination was whether the delay in vesting the EACJ with the extended jurisdiction as envisaged under Article 27(2) contravened the doctrines of good governance, adherence to the rule of law, social justice and the maintenance of universal standards of human rights enshrined in the Treaty.63 In a decision delivered on 30 June 2011, the Court noted that there had been various consultative meetings from 2005 to 2010 on the draft protocol yet those meetings did not culminate in the conclusion of a Treaty. Thus, the Court found that there was failure to fully discharge the obligations regarding the conclusion of a protocol to operationalise an extended jurisdiction of the EACJ. Accordingly, the Court held that the delay “contravenes the principles of good governance as stipulated in Article 6 of the Treaty”.

It is sad to note that it is now almost ten years since the Court first made that call to operationalise Article 27(2), yet the provision remains in the Treaty, still, meaningless. This is irrespective of the Court holding the Council of Ministers in contempt, for failure to implement that decision.64

4 3 Adjudicating by avoidance: A seemingly cautious approach towards sensitive cases

Without a doubt, as demonstrated in this paper, there has been very progressive jurisprudence from the Court. However, the journey towards attaining and sustaining such impactful jurisprudence has not been without its flaws. While the Court has not shied away from issuing bold pronouncements, a review of some decisions reveals instances where the Court has avoided delving into the merits of the cases before it. In those cases, the Court went to great lengths to craft conditions which generally dimmed the possibility of the EACJ interrogating the merits of a domestic court. The conditions issued by the Court lead to a perception that the Court was intentionally treading carefully and exercising more than just the expected judicial restraint. A case in point is the analysis of the approach taken by the First Instance Division in case of the East African Civil Society Organizations’ Forum (EACSOF)65 as compared to the subsequent case of Martha Karua.66 Both cases challenged the legality of the decisions of the domestic courts.

The case of East African Civil Society Organizations’ Forum Appeal questioned the decision of the Constitutional Court of Burundi for holding that the then incumbent President, Pierre Nkurunziza, was eligible to run for the third time as the President of the Republic of Burundi. The First Instance Division held that “its mandate did not extend to interrogation of decisions of other courts in a judicial manner”.67 Aggrieved by that determination, the Applicants approached the Appellate Division which disagreed with the First Instance Division’s view and referred the matter back to the First Instance Division for a re-hearing on the merits. In remitting the matter back to the First Instance Division, the Appellate Court noted that a determination by the highest domestic court on constitutionality of an internal law does not prevent the EACJ from interrogating whether the said domestic law is in violation of the Treaty.68 The Appellate Division then gave clear directions that the First Instance Division should re-hear the matter and determine whether the impugned decision of the Constitutional Court of Burundi was in violation of the EAC Treaty. 69

When the matter went back for re-hearing, the First Instance Division noted that there were various conditions which ought to be satisfied before the EACJ could review a decision of a domestic court. It thus pronounced that: 70

A judicial decision of a domestic court would only give rise to a cause of action first, where, it is established on the face of the record as depicting outrage, bad faith and willful dereliction of judicial duty, and, secondly, where no or manifestly insufficient action has been taken by the appropriate judicial disciplinary body to redress such judicial outrage.

Similar pronouncements had been made by the First Instance Division in the case of Manariyo Désiré 71 where the Court after being persuaded by cases from other jurisdictions reasoned that

judicial decisions of national courts, particularly those emanating from the apex court of a country, may only be categorized as wrongful acts for purposes of state responsibility where they reflect blatant, notorious and gross miscarriages of justice.72

By those pronouncements, therefore, the First Instance Division introduced subjective tests as a pre-condition for the exercise of its mandate of interrogating whether a decision of a domestic court conforms with the Treaty. Thus, in determining the case of East African Civil Society Organizations’ Forum (EACSOF),73 the First Instance Division read through the judgment of the Constitutional Court of Burundi and stated that

we take the considered view that the foregoing decision, as well as the legal reasoning that underpins it, cannot be categorised as an outrageous judicial decision, let alone one that depicts outrage, bad faith or willful dereliction of judicial duty so as to invoke State responsibility therefore by the Respondent’s State.74

The Court noted that the Constitutional Court of Burundi applied its mind to the questions that were before it thus, in the Court’s view, there was no reason for interfering with that reasoning.75 This conclusion was arrived at without the Court analysing the impugned decision. Rather, the Court made observations purely at face value and using the standards it had set, reasoned that the impugned judgment was reasonable and did not warrant an examination of its compliance with the Treaty. This holding failed to appreciate the Court’s mandate of ensuring adherence to the Treaty. This was despite the Appellate Division’s guidance that the Trial Court had an obligation to consider whether the impugned decision of the Constitutional Court of Burundi was in violation of the Treaty. Instead, the First Instance Division introduced an almost impossible test to surmount before the EACJ can interrogate the merits of a decision of a domestic court.

Even though the above decisions may have defined the approach that the First Instance would take when confronted with similar questions, the Martha Karua case which was delivered on 30 November 2020 seems to herald a new dawn.76 Unlike the previous approach, in Martha Karua, the First Instance Division acknowledged right from the beginning that: “[T]his Court is well within the purview of its mandate to interrogate the decision of the Supreme Court of Kenya that has been impugned in this Reference, with a view to determining its compliance with the Treaty”. 77

Interestingly, the Martha Karua case did not refer to the two contested previous decisions nor the conditions that had been proposed therein. Instead, the Court accepted without any hesitation its mandate of interrogating whether the Supreme Court correctly applied the governing internal laws. This is something to be celebrated and it is hoped that this signifies a new direction which the Court intends to take moving forward. The previous benchmark should only remain as lessons to be learnt and not a fallback jurisprudence when an opportunity arises. It is also hoped that the Appellate Division which seems to have had clarity of thought will be up to challenge when appeals are filed on merits before it. Indeed, a glimpse of what is to be expected may be perceived from the minority decision of Manariyo Désiré, where the two dissenting judges questioned the trial court’s position on circumstances when a decision of the domestic court may be impugned. The judges were categorical that:

With respect to the complaint that the Trial Court was in error in holding that the actions of a judicial organ of a State could only be categorized as wrongful acts for the purpose of state responsibility where they reflect blatant, notorious and gross miscarriage of justice for having been done in an outrageous way, in bad faith, with willful neglect of duty, or in blatant violation of the substance of natural justice, we completely agree with the excellent submissions by counsel for the appellant that the holding of the trial court is without support in international law as it stands today. 78