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Botched-Up Elections, Treaty Amendments and Judicial Independence in the East African Community

Published online by Cambridge University Press:  04 March 2010

Henry Onoria
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Abstract

This article examines developments in the East African Community from October 2006 to April 2007, against the background of the challenge to the “elections” of members of the East African Legislative Assembly. The article also examines the saga over the Kenyan regional court judges, emanating from the decision to grant an injunction restraining the nine Kenyan nominees to the Assembly from taking office and to dismiss a recusal application brought against the court's Kenyan judges. The article explores the hurried amendments to the Community treaty in a largely political response to the regional court's decisions and the implications for the future of the court and the Community. The haste involved in amending the treaty itself raises concerns over the growing tendency to flout processes and procedures at the national and community levels for the sake of political expedience on the part of the partner states.

Type
Research Article
Information
Journal of African Law , Volume 54 , Issue 1 , April 2010 , pp. 74 - 94
Copyright
Copyright © School of Oriental and African Studies 2010

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References

1 The Treaty entered into force on 7 July 2000. The original partner states of the Community are Kenya, Tanzania and Uganda. Burundi and Rwanda were admitted under treaties of accession during the fifth extraordinary summit of East African Community heads of state held in Kampala, Uganda on 18 June 2007, and became full members of the Community on 1 July 2007. It is envisaged that the integration process will ultimately result in a political federation: see art 5(2) of the Treaty.

2 The Treaty, arts 10–12.

3 Id, arts 13–16.

4 Id, arts 48–65.

5 Id, arts 23–47.

6 Id, arts 17–19.

7 Id, art 14(3)(i).

8 Id, arts 20–22.

9 Protocol on Combating Drug Trafficking in the East African Region, 13 January 2001.

10 Protocol on Standardization, Quality Assurance, Meteorology and Testing, 15 January 2001.

11 Protocol on the Establishment of the Inter-University Council for East Africa, 13 September 2002.

12 Protocol on Sustainable Development of Lake Victoria Basin, 29 November 2003.

13 Protocol on the Establishment of the East African Community Customs Union, 2 March 2004. See also East African Community Customs Management Act, No 1/2005.

14 Tripartite Agreement on Road Transport, 21 April 2001.

15 Tripartite Agreement on Inland Waterway Transport, 30 November 2002.

16 Search and Rescue Agreement, 13 September 2003.

17 Rules of Procedure for the East African Legislative Assembly, 2001.

18 East African Court of Justice Rules of Procedure, November 2004. See also East African Court of Justice Arbitration Rules, November 2004.

19 Art 48(1). The ex-officio members of the Assembly are the three members of the Council of Ministers, the secretary general and the counsel to the Community.

20 The Treaty, art 50. Art 50(1) provides: “The National Assembly of each Partner State shall elect, not from among its members, nine members of the Assembly, who shall represent as much as feasible, the various political parties represented in the National Assembly, shades of opinion, gender and other special interest groups in that Partner State, in accordance with such procedure as the National Assembly of each Partner State may determine.”

21 Prof Peter Anyang' Nyong'o & 10 Others v Attorney General of Kenya & 2 Others (with Abdurahin Haitha Abdi & 11 Others intervening), EACJ ref no 1/2006 (unreported) (Prof Anyang' Nyong'o).

22 Id at 29–30.

23 Id at 37.

24 Id at 37–38 and 42–43.

25 Id at 37.

26 Id at 30–31.

27 Id at 31 and 33–34.

28 Id at 34 (emphasis added).

29 Id at 34 and 43.

30 Parliamentary Debates, Hansard (24 Aug 2006) at 671.

31 Jacob Oulanyah v Attorney General constitutional petition no 28/2006 (unreported) (Oulanyah).

32 Id, judgments of Mpagi-Bahigeine JA at 14 and Mukasa-Kikonyogo DCJ at 11.

33 Id, judgments of Mpagi-Bahigeine JA at 14, Mukasa-Kikonyogo DCJ at 9 and Kitumba JA at 12. The court also noted that, given that independents were allowed to stand for election to international fora (such as the Pan-African Assembly) and locally (Parliament and local councils), the bar to stand for election to the Assembly constituted an infringement of the right to equal protection of the law: id, judgments of Mpagi-Bahigeine JA at 16–17, Mukasa-Kikonyogo DCJ at 10–11, Kitumba JA at 12 and Byamugisha JA at 11–12.

34 Id at 22. See also judgments of Mukasa-Kikonyogo DCJ at 15–16, Okello JA at 7-8, Kitumba JA at 16 and Byamugisha JA at 16–17.

35 Id, judgment of Kitumba JA at 16.

36 Id, judgment of Byamugisha JA at 17 (emphasis added).

37 In the aftermath of the Court's decision (and subsequent politically charged responses to it), the Kenyan National Assembly adopted new electoral rules, the East African Community (Election of Members of Assembly) Rules, 2007, on 23 May 2007. Under these rules, fresh elections were held for Kenya's members to the Assembly on 29 May 2007: “Election of members of the East African Legislative Assembly” Gazette Notice No 4873 (vol CIX no 37, 31 May 2007). The second Assembly was then inaugurated on 4 June 2007. In Uganda, the attorney general lodged an application for a stay of execution of the Constitutional Court decision pending an appeal to the Supreme Court: Attorney General v Jacob Oulanyah constitutional application no 1/2008. The Supreme Court granted an interim stay of execution on 23 June 2008: Attorney General v Jacob Oulanyah constitutional application no 2/2008 (unreported). The main application for stay of execution (application no 1/2008) was, as of 30 November 2008, yet to be heard. As of the same date, the attorney general had yet to lodge an appeal against the Constitutional Court decision.

38 Christopher Mtikila v Attorney General of the United Republic of Tanzania & Another (Dr George F Nangale & 8 Others intervening) EACJ ref no 2/2007 (unreported) (Mtikila). See also note 74 below and accompanying text.

39 See “Irate Kibaki clips wings of EAC judges” (18 December 2006) The East African 3.

40 EAC Official Communiqué of the Summit (30 November 2006).

41 Attorney General of the Republic of Kenya v Prof Peter Anyang' Nyong'o & 10 Others, EACJ application no 5/2007 (unreported).

42 Id at 14 and 15.

43 Id at 14.

44 Id at 19–20.

45 Id at 20 and 22–23.

46 Id at 22–23 (emphasis added).

47 Id at 23 (emphasis added).

48 Id at 26–27.

49 The then partner states ratified the amendments to the Treaty (and deposited instruments of ratification with the secretary general of the Community) on the following dates: Kenya, 8 January 2007; Uganda, 26 February 2007; and Tanzania, 19 March 2007.

50 See amendments to arts 1, 23, 24 and 35 of the Treaty (including the insertion of new paragraphs) and the insertion of new arts 35A (appeals) and 140(4A) (transition).

51 See amendments to arts 27 and 30 of the Treaty (including the insertion of a proviso to art 27 and a new para (3) in art 30).

52 See amendments to art 30 of the Treaty (by the insertion of a new paragraph (2)).

53 See amendments to art 26 of the Treaty (including the deletion of para (1) and its replacement with a new expanded para (1) and the insertion of new paras (2A) and (2B)).

54 It is to be noted that there were unsuccessful attempts before the Court and national courts to seek injunctive relief against the amendments becoming part of the Treaty or being implemented; see East African Law Society & 4 Others v Attorney General of the Republic of Kenya & 3 Others, EACJ application no 9/2007 (unreported); and Prof Peter Anyang' Nyong'o & 10 Others v Attorney General & Another, case no 49/2007 (unreported). The latter case was filed before the High Court of Kenya. See also below at note 97.

55 Above at notes 42–43 and accompanying text. This was evident in the unsubstantiated submissions by Kenya's solicitor general that the “people of East Africa had lost confidence in the Court”: Prof Anyang' Nyong'o, above at note 41 at 10 and 11.

56 Above at notes 47–48 and accompanying text. This was more so as the ruling of 27 November 2006 was only an interim order on the status of Kenya's nominees to the Assembly, and the Court had yet to determine the reference on its merits.

57 Attorney General of the Republic of Kenya v Prof Peter Anyang' Nyong'o, above at note 46 and accompanying text.

58 See arts 35A and 140(4A). See also above at note 50 and accompanying text.

59 East African Law Society & 4 Others v Attorney General of the Republic of Kenya & 3 Others, EACJ reference no 3/2007 (unreported) (East African Law Society).

60 Id at 34.

61 Ibid.

62 Ibid.

63 Id at 45 (emphasis added).

64 Ibid.

65 Above at note 51 and accompanying text.

66 Prof Anyang' Nyong'o, above at note 21 at 26.

67 Id at 19.

68 The third interveners, Saphina Kwekwe Tsungu, Catherine Ngima Kimura, Clarkson Otieno Karan, Augustine Chemonges Lotogo and Gervase Buluma Kafwa Akhaabi, were the five persons approved by the National Assembly as NARC nominees.

69 Prof Anyang' Nyong'o, above at note 21 at 29–30.

70 Id at 10, 19–21 and 26.

71 Id at 20–21.

72 Id at 21 (emphasis added).

73 Id at 19–20.

74 Mtikila, above at note 38 at 12.

75 East African Law Society, above at note 59 at 44–45.

76 Art 1 of the Treaty defines the principle of subsidiarity as “the principle which emphasises multi-level participation of a wide range of participants in the process of economic integration”.

77 Prof Anyang' Nyong'o, above at note 21 at 42–43 (emphasis added).

78 Id at 43.

79 Prof Anyang' Nyong'o, above at note 21 at 21.

80 Id at 18. The question whether art 30 envisages “public interest litigation” was not addressed by the Court in either Prof Anyang' Nyong'o or Mtikila, although in Prof Anyang' Nyong'o it noted that art 30 (as well as arts 28 and 29) did not require the claimant to show a “right or interest that was infringed and / or damage that was suffered as a consequence of the matter complained of in [a] reference”: id at 16–17 (emphasis added). In East African Law Society (the injunction case), the Court reiterated the “special causes of action” under art 30 of the Treaty and went a step further to adopt a liberal locus standi position that recognizes public interest litigation: “The applicants are Bar Associations in their respective Partner States and have a duty to promote adherence to the rule of law. We are … satisfied that the applicants are genuinely interested in the matter complained of, that is, the alleged non-observance of the Treaty by the Respondents”: above at note 54 at 7. In East African Law Society, the Court observed in the main reference that art 30 vests in residents of partner states the “right to access the Court for the purpose of challenging any infringement of provisions of the Treaty” and that it was “a deliberate provision to ensure that East Africans for whose benefit the Community was established participate in protecting the integrity of the Treaty”: above at note 59 at 14.

81 Prof Anyang' Nyong'o, id at 21.

82 Above at note 52 and accompanying text.

83 The Prof Anyang' Nyong'o reference was filed on 9 November 2006, about 15 days after the contested election of Kenya's members to the Assembly on 25–26 October 2006.

84 See for example as regards regulations and directives of the council: art 14(5) of the Treaty.

85 Interestingly, the East African Law Society filed the reference (and an application for an interim injunction) in respect of the Treaty amendments on 18 May 2007, on the basis of the publication of the amendments in the East African Gazette on 20 March 2007. 18 May 2007 was a Friday with the next Monday being 21 May 2007. Notably, the amendments were also gazetted within the partner states, for example Kenya, where they were published in legal notice no 38 in the Kenyan Gazette on 20 March 2007: legislative supplement no 20, 20 Mar 2007; the amendments are set out in the schedule to the supplement.

86 Report of the extraordinary meeting of the attorneys general (7 December 2006).

87 Report of the 12th extraordinary meeting of the Council of Ministers (7–8 December 2006).

88 Report of the 4th extraordinary meeting of the Summit of heads of state (14 December 2006).

89 “Irate Kibaki”, above at note 39.

90 The Treaty, arts 5(3)(g), 7(1)(a) and (d), and 127–29.

91 East African Law Society, above at note 59 at 43.

92 Id at 28–30 (emphasis original).

93 Id at 27.

94 Id at 31.

95 Id at 43–44.

96 Id at 44.

97 Although Kenya ratified the Treaty amendments by depositing the instrument of ratification with the secretary general of the Community on 8 January 2007, ratification by the National Assembly only occurred more than three months later; see “Motion for ratification of amendment to the East African Community Treaty by the National Assembly” (25 April 2007). The motion was adopted on 16 May 2007. For a critique of the process, see D Deya “An institutional analysis of the East African Community: Some initial reflections” (unpublished paper presented at a colloquium on the proposed amendments to the Treaty for the Establishment of the East African Community, held at Impala Hotel, Arusha, Tanzania on 16–17 May 2007) at 17. In fact, the amendments were challenged in the suit filed by Prof Anyang' Nyong'o before the High Court in Kenya on the premise that the National Assembly's authority to ratify or approve the ratification of treaties (or in this case amendments to the Treaty) was implicit in the legislative powers of the Assembly under arts 30 and 46 of the constitution. This was rejected by the court, which held that the acts leading to the ratification of the Treaty amendments were properly within the capacity of the minister of foreign affairs with regard to treaties under international law: Prof Peter Anyang' Nyong'o, above at note 54.

98 See Ratification of Treaties Act, cap 204 (Laws of Uganda 2000). Under sec 2(a) of that act, all treaties are to be ratified by Cabinet except for certain specific treaties that require ratification by Parliament. Of note, the Treaty was ratified by the Parliament of Uganda; see “Motion for a resolution of Parliament to ratify a treaty under section 3(b)(ii) of the Ratification of Treaties Act, 1998 (Act No 5 of 1998)” Parliamentary Debates, Hansard (27 April 2000) at 9632–45.

99 In Prof Anyang' Nyong'o, the Court observed that, while the electoral rules in Tanzania did provide for elaborate elections and those in Uganda were silent on the issue of elections (save to provide for successful nominees as “elected members”), there was, in effect, “no agreement of the parties regarding interpretation of Article 50” that could “be inferred from the said practice” and, in its opinion, “there is a glaring lack of uniformity in the application of Article 50” on the part of the partner states: Prof Anyang' Nyong'o, above at note 21 at 27.

100 At the 5th extraordinary summit of the heads of state held in Kampala, Uganda on 18 June 2007, it was reported that the Secretariat was working on a bill to regulate the election of members to the Assembly.