Arrest the mischief in EA court
June 12, 2007
The Fifth Extra-Ordinary Summit of the East African Community (EAC) will be held in Kampala on June 18, 2007. The three EAC Heads of State – Yoweri Museveni of Uganda, Mwai Kibaki of Kenya and Jakaya Mrisho Kikwete of Tanzania will attend the Summit. Two other countries Rwanda led by Paul Kagame and Pierre Nkurunziza’s Burundi are expected to be admitted to the community. However, preparations for the summit aimed at opening up borders for the peoples of East Africa to realise political federation, unity in diversity and free trade are marred by the recent illegal amendments to the East African Treaty.The East African Law Society (EALS) has now sued the governments of Uganda, Kenya and Tanzania, in the East African Court of Justice (EFCJ) challenging the amendments. Hardly five years since signature, the leaders of the three member countries are already tinkering with the provisions of the Treaty – the principal legal instrument which set up the EAC. And all this is done to undermine the institutions of good governance, justice, the rule of law, democracy and observance of human rights.To make matters worse, the government of Kenya in tandem with their Ugandan counterparts amended the Treaty without even having the courtesy of consulting their respective national legislative assemblies. Only Tanzania sought approval of its parliament albeit that endorsement did not cure the illegal manner in which the amendments were made.The irregular and undemocratic amendments to the Treaty specifically affect Article 26(1) which purport to introduce a new proviso for the removal of judges of the East African Court of Justice. The amendments will also allow the member states to hand-pick hitherto unheard of ‘transitional’ judges .The amendments were a creation of the Kenya government after the EACJ bench ruled against its decisions to suspend some judges in 2003.Other amendments to articles 27, 30, and 140 of the Treaty all appear designed to limit the independence and jurisdiction of the EACJ.Another amendment which affects Article 23 of the Treaty seeks to create an appellate chamber at the EACJ. Although laudable in principle, there is genuine fear among the legal fraternity and civil society organisations that the three governments are working to set up an appellate chamber/court to staff it with cadre judicial officers.Unless accompanied by safeguards to have the proposed appellate chamber constituted with independent judicial officers and not cadres, who will succumb to the whims of the ruling governments to defeat justice and the interests of the peoples of East Africa, the amendments will remain bad in law.And much as Article 150 of the Treaty sets out an elaborate process and time-frame for proposing and amending the Treaty none of these procedures was complied with. In particular, the Treaty requires a formal written proposal, by either a Partner State or the EAC Council of Ministers to the Secretary General. Thereafter, the Secretary General is required to communicate the proposal to the Partner States, in writing, within 30 days.The Treaty then explicitly provides a mandatory 90-day period for the Partner States to deliberate on the proposed amendments. Only thereafter shall the Secretary General submit the proposed amendments, together with the comments of the Partner States, to the Summit for signature.The three governments did not only fail to consult the people’s representatives in their respective parliaments but amended the Treaty in a record 14 days. The itch for the three governments to weaken the vital institutions of the East African community is obvious.African governments and their leaders simply do not want to empower institutions that will challenge their authority. But this self-centred approach to national and regional issues is not good for democracy. The member states should not take advantage of the citizens’ ignorance of the provisions of the Treaty to flout the law. East Africans need to know why we are working so hard to federate while its institutions are being undermined..
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The writer is a Journalist/Advocatemsserwanga@gmail.commsserwanga.blogspot.com0772 43 46 77.