ANALYSIS Nelson Otieno 08 October 2021
The success of the European economic integration project has influenced similar efforts across the world. Notably, the European experience has proved that regional courts play a pivotal role in fueling success of Regional Economic Communities (RECs) through developing community law and resolving disputes. EU’s success has mainly been pegged on its supranational model of integration. Africa’s RECs, on their part, have adopted a comparatively flexible regime of State cooperation. Despite the difference in integration models, there are some similarities in EU and African RECs on how judges of the regional courts are appointed. First, they are appointed from members States of the RECs. Secondly, governments of the day in respective member States have a hand in their appointment, albeit with different levels of influence. This is a departure from a comparatively rigorous process of appointing judges at domestic levels.
INTEGRATIONIST JUDGMENTS: COMPARING VAN GEND AND KATABAZI
Integrationist judgments stand out from the jurisprudence set by the regional courts. These are judgments that have significantly and distinctively contributed to the development of community law. Throughout practice, the Court of Justice of the European Union (CJEU) has yielded integrationist judgments. One such judgment is Van Gen en Loos Case 26/62. In this case, the CJEU provided a preliminary ruling that Article 12 of the EEC Treaty has direct applicability in the national jurisdictions of member States. Also, the Court found that EU community law establishes a distinct legal order.
On the part of African RECs, authors such as Prof. Khoti Kamanga consider that certain decisions such as James Katabazi & 21 Others v Secretary-General of EAC & AG of Republic of Uganda, EACJ Ref No. 1 of 2007 can be considered as ‘integrationist’ considering their impact on the development of regional integration projects in Africa that are otherwise at their nascent stages. In this case, the East African Court of Justice (EACJ) used judicial innovation to create its human rights jurisdiction despite the lack of Protocol to operationalize the jurisdiction as envisaged by the EAC Treaty 1999. Notably, Van Gend en Loos was decided ten years after the CJEU was established. A comparative judgment in James Katabazi case wasdelivered by EACJ in 2007. That was barely six years after the EACJ was established and barely two years after it was operationalized. As such, evidence does support the view that Africa’s regional Courts in Africa have developed strong jurisprudence to further the development of community law in Africa RECs.
Comparatively, CJEU is highly ranked for developing stronger jurisprudence to strengthen achievement of various stages of economic integration. Some scholars have blamed the comparatively lukewarm jurisprudence in African regional courts on the manner in which the judges are appointed which presumably makes them ‘docile representatives of the Heads of Governments’. This begs the question whether the mode of appointment of judges of regional courts is a key determinant in influencing the judges to arrive at precedent-setting judgments.
COMPETENT OR PUPPETS OF THE HEADS OF GOVERNMENT?
To answer to the above question, I consider bench that decided Van Gend and Katabazi cases to answer this question. On its part, Van Gend was decided by a bench of judges and two Advocates General. I randomly considered Professor Alberto Trabucchi and Politician Robert Lecourt who were members of the bench. The opinion of judge Trabucchi, a jurist and a scholar of civil law, largely influences the adoption of the view favoring the need to have a self-executing Article 12 of the EEC Treaty, as it was then. Incomplete records obtained from the proceedings indicate that this common view held by the two judges significantly swayed the minds of the majority of the bench in making the precedent-making judgment.
Unlike in Van Gend, there isno evidence that one judge swayed the decision of the in Katabazi case. Justice Mulenga had been a minister of Regional cooperation and a judge Supreme Court of Uganda before joining the EACJ. Judge Arach-Amoko had been a State attorney and a High Court judge in Uganda for over a decade. Justice Ramadhani had served as Court of Appeal judge and a Chief Justice in Tanzania. Interestingly, the learned judge authored an Article 10 years earlier. The Article was titled ‘Promoting a New Economic Order in Developing Countries: A Role for Human Rights Organizations’ published in Canada Human Rights Foundation Newsletter in 1996.
Interestingly, Justices Trabucchi and Lecourt who swayed the decision in Van Gend, were surprise political appointments by Charles de Gaulle, a major opponents of regional integration in Federal Europe then. However, the judges still exercised independence and were guided by their professional background in law and politics to come to the precedent-setting judgment. Similarly, though Presidents of African RECs have the discretion to appoint judges, the bench in Katabazi still went above board to be innovative in what is uncharacteristic of mere puppets of the Heads of States. This shows that the mode of on-boarding the judges play a peripheral role in the delivery of the mandate and establishment of integrationist judgments.
Developing Integrationist Judgments
Though the mode of appointment of regional court judges in African RECs depend much on discretion of the Heads of States/Governments, the RECs are promising in developing integrationist judgments now and in the future. Already, former judges of EACJ including Judge Otieno-Odek and Lord Justice Ugirashebuja had emerged as scholars in regional integration through publications. Lessons from Van Gend decision shows that policymakers on RECs must stop decrying the intergovernmental model and the modes of appointment of judges. Instead, focus should be on capacity-building and sensitization of judges on harnessing of independence, competence and collegiality to develop community law through integrationist judgments.
Nelson Otieno is an Advocate of the High Court of Kenya and an Associate at MMK Advocates, Nairobi. His research interests are in regional integration, cybersecurity, and ICT law.