The East African Court of Justice
Discussion
What is the East African Court of Justice?
Is it a human rights court?
Has it considered human rights cases?
Jurisdiction
Treaty Establishing the East African Community
Article 27
“1. The Court shall initially have jurisdiction over the
interpretation and application of this Treaty… 2. The Court shall
have such other original, appellate, human rights and other
jurisdiction as will be determined by the Council at a suitable
subsequent date…”
Article 30
“… any person who is resident in a Partner State may refer for
determination by the Court, the legality of any Act, regulation,
directive, decision or action of a Partner State or an institution of
the Community on the grounds that such Act, regulation,
directive, decision or action is unlawful or is an infringement of
the provisions of this Treaty.”
Criteria for Applicant
• A legal or natural person; and
• Resident of an EAC Partner State; and
• Claim must challenge the legality of an Act,
regulation, directive, decision, or action of the
said Partner State or an institution of the
Community.
(Godfrey Magezi vs The Attorney General of the
Republic of Uganda EACJ Reference No. 5 of 2013)
Jurisdiction
Jurisdiction ratione materiae:
• Any person (or company) resident in the East African
Community may bring a case to the East African Court of
Justice.
Jurisdiction ratione temporis:
• Cases will fall within the temporal jurisdiction if they
occurred subsequent to the treaty coming into force.
• The refusal by the East African Court of Justice to recognise
continuing violations of the treaty indicate that time limits
will be applied strictly.
• See for example Emmanuel Mwakisha Mjawasi and Others
v. The Attorney General of Kenya EACJ Reference No. 2 of
2010, at p.9, and Appeal No. 4 of 2011, at pp. 8 to 14.
Jurisdiction ratione materiae
Does an act or omission infringe the Treaty?
“The Partner States undertake to abide by the principles of
good governance, including adherence to the principles of
democracy, the rule of law, social justice and the
maintenance of universally accepted standards of human
rights…While the Court will not assume jurisdiction to
adjudicate on human rights disputes, it will not abdicate from
exercising its jurisdiction of interpretation under Article 27
(1) merely because the reference includes [an] allegation of
human rights violation.”
(James Katabazi & 21 Others v Secretary General of EAC &
Another EACJ Reference No. 1 of 2007)
How far will they go?
The East African Court of Justice held that violations
of the freedom of expression and of the press were
justiciable as violations of the East African Treaty,
holding that, “there is no doubt that freedom of the
press and freedom of expression are essential
components of democracy.”
(Burundi Journalists Union v. The Attorney General
of the Republic of Burundi EACJ Reference No. 1 of
2007)
Contents of Reference
• According to Rule 24 of the East African Court of
Justice’s Rules of Procedure, a case (Reference) is
brought by an application stating:
– the name, designation, address and residence of the
applicant;
– the designation, name, address and residence of the
respondent;
– the subject-matter of the reference and a summary of
the points of law on which the application is based;
– the nature of any evidence offered in support; and
– the order sought by the applicant.
Admissibility
?
Exhaustion of domestic remedies?
• The East African Court of Justice has held that
there is no requirement that a Party must
exhaust local remedies before approaching
the East African Court, basing this on the
argument that the East African Court of Justice
has primacy in interpreting the East African
Treaty (which is an overt rejection of the
subsidiarity principle).
(Rugumba v. Attorney General of Rwanda)
Two-month rule
• The Treaty requires that references be filed with the
East African Court of Justice within two months of the
violation complained of, which is an extremely difficult
requirement to comply with.
• In two cases the East African Court of Justice held that:
– it will not give any leeway on this requirement; and
– there is no provision in the Treaty that covers the concept
of continuing violations as this is a human rights concept
and is therefore not applicable to interpretation of the
Treaty.
(Attorney General of Uganda and Attorney General of Kenya
v. Omar Awadh and Six Others; Attorney General of Kenya v.
Independent Medical Legal Unit)
Sources
• The vast majority of human rights cases will be justiciable
before the East African Court of Justice, as long as the
violations are expressed as violations of the principles of good
governance, democracy, rule of law or social justice.
• The Court has also demonstrated a willingness to consider the
human rights jurisprudence of other courts.
• See for example the Burundi Journalists Union case, where
the Court quoted the following from the European Court of
Human Rights’ decision in Goodwin vs. UK :
“Protection of journalistic sources is one of the basic conditions for
press freedom .... Without such protection, sources may be deterred
from assisting the press in informing the public on matters of public
interest. As a result, the vital public-watchdog role of the press may
be undermined and the ability of the press to provide accurate and
reliable information may be adversely affected.”
Rule skeptics?
• But in the rendition cases against Uganda and Kenya
the Court expressly rejected arguments on continuing
violations supported by the jurisprudence of other
human rights courts.
• The Court held that the concept had been developed in
the context of other human rights treaties and could
not extend to the Treaty Establishing the East African
Community.
(Attorney General of Uganda and Attorney General of
Kenya v. Omar Awadh and Six Others)
Appeal
The East African Court of Justice allows appeals
of decisions of the First Instance Division to the
Appeals Division:
• on points of law;
• on jurisdiction; and
• to review procedural irregularities.
Remedies
• In the Burundi Journalists Union case, the
Court held that it had no authority to order a
member State to amend its legislation and
instead issued a declaratory order that the
legislation violated the Treaty and directed the
member State to comply with the decision.
Advisory Opinion
A request for an advisory opinion under Article 36
of the Treaty is lodged in the Appeals Division. The
request must:
– contain a statement of the question upon which an
opinion is required; and
– be accompanied by all relevant documents.
As with the African Commission and the African
Court, advisory opinions must be requests for the
interpretation of the law and must not be attempts
to bring contested cases before the Court.
Why would you file a case at the EACJ?
?