Leading us blindly in East Africa
June 19, 2007
In his State-of-the-Nation address on June 21, President Yoweri Museveni emphasised the need for regional integration reasoning that the advantages of such a grouping far outweigh the disadvantages.The 5th extra-ordinary summit of East African Community (EAC) heads of state and council of ministers which was opened in Kampala yesterday admitted two new member states: Rwanda and Burundi, to broaden and consolidate the benefits that come with regional political and trading blocs. As the heads of state re-examined their commitment and the progress made towards regional integration; they needed also to reflect on the provisions of the East African treaty which in the most obligatory language, require the Partner States to implement a dispensation of constitutionalism, democracy and good governance. The governments of the member states are also under a legal obligation to ensure the rule of law, and the protection and promotion of human rights in accordance with the provisions of the African Charter on Human and Peoples’ Rights.These obligations require that the process of enactment or amendment of the Treaty, its Protocols or any legislation subsidiary to them are lawful and do not infringe the Treaty or laws made under it, or national constitutions or laws, or settled principles of international law.It is now trite international law that the process of enactment or amendment of a Treaty, is people-driven, consultative and participatory. Peremptory (decisive) norms of international law call for enactment and amendments of treaties to be made in good faith - to strengthen, and not weaken, the organs, programmes and processes for which they are sought. In other words the principle of public consultation in Treaty reform or amendment is fundamental. One of the key issues that was addressed by the heads of government at the EAC Kampala meet is the recent illegal amendments to the EAC treaty which have since been challenged in court by the East African Law Society. Unfortunately, the EAC heads of state endorsed the illegal changes in the Treaty’s provisions.The purported amendments contravened the provisions of the Treaty itself since no wide consultations were made by the three governments. Indeed, the net effect of such illegal amendments will be to imperil the very life of the East African Community.The East African Law Society is on record that the process of amending the Treaty should be carried out according to the provisions of the Treaty. The regional lawyers’ body has noted that the amendments to the Treaty are aimed at creating avenues in which judges of the East African Court of justice (Eacj) could illegally be sacked, thereby undermining the institution of justice within the Community. Traditionally, ratification of international legal instruments such as treaties, conventions, protocols that legally bind nations for common purpose is the preserve of presidents and their ministers. However, this practice `has been abused by governments that opt to ignore the broader interests of the people they govern when entering into international and regional treaties.Because of these underlying problems associated with the unlimited powers of the Executive (the presidents and their ministers) to commit their countries to international obligations, the Kenyan parliament has recently wrested that power from Cabinet.In a bold move, the Kenyan parliament argued that agreements that bind the country in whichever manner must be endorsed and ratified in parliament by the people’s elected and nominated representatives. This should be the practice and the other member states in the community (including Uganda) should follow suit. It is also about time now that a general review of the East African Treaty is carried out by the three governments in a democratic manner involving all the peoples of East Africa. Some of the provisions of the Treaty are contradictory in nature and need revision. Take for instance the issue of having the sitting justices of the East African Court of Justice retaining their positions as judges in their respective countries of origin. This doesn’t only create a situation where there is conflict of interest but the judges are exposed to coercion and intimidation by the partner states. This is not good for justice.
Next week: The law on corruption should be enforced to the letter.
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