‘Even if you Dress Up, you will not Come to the City!’ Promoting Free Movement of Persons by the East African Court of Justice under Mohochi’s Case

ANALYSIS Jebby Gonza 29 April 2022

Just as water is significant for a fish’s survival, so is cross border migration a fundamental aspect of the East African Community (EAC) integration. The EAC is a regional economic community established by the EAC Treaty, 1999 and comprises of seven partner states.[1] Achieving a common Market is portrayed under Articles 2 (2) and 5 (2) of the Treaty, 1999 as the core objectives of the Partner States. The foregoing also serves as a transformative step to other successive stages of EAC integration, the monetary union and political federation. Movement of persons within partner states of the EAC is a fundamental freedom of the EAC Common Market as stipulated under Articles 104 of the Treaty. Articles 7 and 10 of the EAC Common Market Protocol (CMP), 2009 stipulate the guarantee by partner states on movement of persons and workers respectively.[2] There is a composition of an ‘economic component’ behind the guarantee of movement of persons by partner states in a common market. It encourages labour mobility whereby citizens of one partner state freely move and take up employment in another partner state. This not only enables an exchange of skills but also benefits partner states that have scarcity in skilled/semi-skilled labourers. Specifically, persons (migrant workers) are regarded as fundamental factors of production that encourage the flourishing of the common market. They are regarded as market citizens or ‘homo economicus’ acting as agents who will make rational decisions to pursue a course that mostly benefits them from the Common Market^[3] i.e., higher rates of renumeration, social security benefits, bigger markets etc.

Mohochi’s case

The facts under the 2013 case of Samuel Mukira Mohochi v Attorney General of the Republic of Uganda^[4] give a complete reflection of two famous expressions originating from the Swahili society: ‘Even if you take a bath or dress up you will not come to town’ or ‘even if you wash your hands, you will not eat.’[5] The phrases imply a forceful way to curtail (at the last minute) a particular promising opportunity to an individual, who was prepared with all legitimate expectations towards receiving it. The foregoing is most acute, to the facts of this case.

Mr. Mohochi is a Kenyan citizen, an advocate by profession, scheduled on a Kenya Airways Flight to Uganda on 13^th April 2011. After arriving at the Entebbe International Airport of Uganda, at 9.00 am, he was not allowed to go beyond the airport check point. The immigration authorities denied him entry into Uganda, detained him, and at 3.00 pm of the same day, deported him back to his country via a Kenya Airways flight. He is tagged as a ‘prohibited immigrant’. Indeed, he was not only denied an opportunity to enter Uganda but also barred from attending a meeting which was scheduled the very next day with the Chief Justice of Uganda together with a group of a 14-member delegation of the International Commission of Jurists-Kenya Chapter (ICJ). Before the EACJ, the Applicant claimed that the Republic of Uganda infringed his fundamental right of freedom of movement of persons as guaranteed by Articles 104 of the EAC Treaty, 1999 and Article 7 of the CMP, 2009. The EACJ agreed with the foregoing. It further held that that the Republic of Uganda had breached Articles 6(d) and 7(2) of the Treaty, 1999 after denying the applicant entry without according to him due process of the law.[6]   

The following contribution gives insightful contributions as extracted from EACJ’s judgement with regards to the fundamental freedom of movement of persons under the EAC common market.

Freedom of Movement: A Sacred Right of Nationals of EAC Partner States

Provisions of the EAC Treaty, 1999 and CMP, 2009 that provide for freedom of movement of persons and workers, portray that the guarantees are not absolute. They are restricted and subject to a lot of procedures by the Partner States.[7] While Article 2 (4) of the CMP, 2009 stipulates a guarantee by Partner States of residence and establishment as rights owed to nationals of partner states, the prescribed freedom of movement of persons is not confirmed as a right. It exists as a mere obligation owed by partner states under the Treaty, 1999 and CMP, 2009. It is under Mohochi’s case, that the EACJ makes an explicit declaration on freedom of movement of persons in and out of partner states as a right owed to nationals of partner states. In the words of the EACJ,

‘The Treaty accorded these persons wide ranging, preferential and superior treatment, and rights in terms of movement, establishment, residence and working within the Partner States.’[8]

The foregoing portrays the nature of fundamental common market rights (including freedom of movement of persons) as originating from the EAC Treaty, 1999 and its Protocols (not originating from member states constitutions or national law) and are inherent and exclusive to persons by virtue of being nationals of partner states.[9] The EACJ makes the right of freedom of movement of persons in and out of territories of partner states concrete by emphasizing on their inviolability even by domestic law or other governmental practices.[10]

Protection against Arbitrary Denial of Entry/Deportation of Nationals of Partner States

Trite law requires that once a right is guaranteed to an individual then a means upon which it can be protected must be established. Articles 54 (2) (a) and (b) of the CMP, 2009 provide that a person whose rights and liberties are recognised by the Protocol shall have a right to redress to a competent judicial, administrative, or legislative authority. Under Mohochi’s case, the EACJ endeavours to prohibit arbitrary denial of (movement) entry of persons or their deportation by Partner States. The EACJ achieves the above by giving an expansive interpretation of what constitutes the ‘right to redress’ as stipulated under Article 54 CMP, 2009. It characterises the right of redress as ‘a hallowed right’ owed to every national of a Partner State before their freedom of movement can be curtailed.[11] Thus, an obligation for Partner States to accord an applicant due process which is fair and just is at the core of the right to redress. According to the Court, the applicant must be accorded natural justice through a legal process that adheres to the rule of law before being denied or limited their right of movement.[12] The above includes the following (i) a duty to give sufficient reason for denial of entry or being declared a prohibited immigrant, (ii) affording one an opportunity to be heard, and (iii) taking into consideration whatever that must be said by the applicant.[13]

The foregoing is with regards to the measures that can be undertaken by a Partner State at the national level in order to prevent arbitrary limit of a person’s right of movement. At the Community level, the EACJ emphasises on the obligation upon a Partner State, who seeks to limit the free movement of persons on the defence of public policy, security, or health to ensure that they notify other partner states. This obligation is stipulated under Article 7 (5) and 7 (6) of the CMP, 2009. 

Partner States Legal Autonomy on Control of Movement of Persons in their Territories?

Mohochi’s case proves to be further significant as it defines the scope of sovereignty of partner states with regards to control of persons to enter their territories or deny unwanted persons of partner states. The Court emphasizes on the aspect that partner states sovereignty rights do not cease as a result of being accorded membership under the EAC. Specifically, they possess legislative autonomy to determine the rules and practices to allow or deny entry of persons of partner states. However, such legislative autonomy is qualified to the extent that it does not conflict with the stated obligations of partner states with regards to guaranteeing freedom of movement of persons under the EAC Treaty and its Protocols. On the basis of the principle of supremacy and national law that gives the EAC Treaty, 1999 and its Protocols a force of law, the EACJ asserts that the latter laws are precedent and directly enforceable within the national law of partner states. Consequently, partner states sovereignty (domestic law and practices) to admit or deny unwanted persons who are nationals of partner states into their territory is qualified and governed by Articles 104 of the EAC Treaty, 1999 and 7 of the CMP, 2009 that stipulate for the freedom of movement of persons in the EAC Common Market. In other words, the court emphasizes that the sovereignty of a partner state and its immigration legislation with regards to nationals of other partner states is governed by the EAC Treaty and its Protocols and the former cannot establish any legal impacts that prevail beyond Community law.[14]  

A Conjunction between Fundamental Principles of the EAC and Fundamental Freedoms of the Common Market Rights

Mohochi’s case also demonstrates an interweave (correlation) between fundamental rights of persons, fundamental principles of the EAC as stipulated under Articles 6 (d) and 7(2) of the Treaty, 1999 and fundamental freedoms (rights) founded on the CMP, 2009. The fundamental principles of the EAC include principles of rule of law, good governance, social justice, accountability, human rights etc. Mohochi’s case is seminal as it emphasises that fundamental principles of the EAC Treaty-Article 6 (d) and 7 (2) of the Treaty, 1999 are not mere aspirations or broad policy provisions but rather actionable obligations that are justiciable before the EACJ. Under this case, the applicant was able to challenge (simultaneously) the Republic of Uganda for violating his fundamental freedom of movement under Article 7 of the CMP, 2009 and its obligations to abide by good governance and rule of law as fundamental principles of the EAC— Article 6 (d) and 7 (2) of the EACT, 1999. Similarly, the applicant was able to challenge the respondent as having treated him in a discriminatory manner from the way it treated other delegates. The above falls as a breach of Article 7 of the CMP, 2009 and human rights as stipulated under Article 6 (d) of the Treaty, 1999. The implications to the above is that the pinholes (causes) of actions for litigating for Treaty rights stipulated under the CMP, 2009 before the EACJ are very wide and this offers wide forum under which a partner state can be held liable for infringing provisions of EAC law. And thus, it be rightly pointed out that, Article 6 (d) and 7 (2) have become the pillar for litigating rights established under the CMP, 2009.     

Wider Implications of the Case to the EAC Legal Order

Mohochi’s case gives a watershed moment in evolution of litigation of fundamental freedoms of the common market. Indeed, while the EACJ’s docket by 2011 was famous for litigation of human rights cases, Mohochi’s case broke the ice for successful litigation of other fundamental freedoms of the common market before the EACJ. Specifically, the EACJ demonstrates to have changed its course towards aggressive protection of fundamental freedoms established under the CMP, 2009. This attitude was not embraced by the EACJ during its early years of establishment, specifically when some of its very initial cases knocked at its corridors of justice.[15]  

The EACJ regards Mohochi’s case a prominent precedent with regards to the principle of supremacy of EAC law i.e., when seeking to prohibit partner states legislation that conflict EAC law.[16] Furthermore, the case emphasizes on the significance and justiciability of fundamental principles of the Treaty, 1999 to the EAC legal order. Lately, legal, and natural persons have brought, before the EACJ, with confidence, cases on fundamental freedoms of the CMP, 2009, but have based their causes of action on the fundamental principles of the Treaty, 1999.[17]

Furthermore, one of the most important aspects that Mohochi’s case brings to the EAC legal order, is a confirmation that the freedom of movement of persons including other common market rights have direct effect. That is, they confer rights to individuals that can be enforced at national courts. Under the case, the EACJ confirms that EAC law and its protocols are an integral part of the national law of (Uganda) and is directly enforceable within the partner states.^[18] The foregoing ensures effectiveness of provisions of the CMP, 2009 that guarantee fundamental freedoms of the common market mostly because natural and legal persons are empowered to be overseers on the compliance of EAC partner states or community institutions of the obligations stipulated under the EAC Treaty and its Protocols.

^* Jebby Romanus Gonza (jebby.gonza@gmail.com) is at the final stages of her PhD studies at the University of Bayreuth. She is affiliated to the Chair of Public Law III (Lehrstuhl fur Öffentliches Recht III).

[1] The EAC is an intergovernmental organization founded by Tanzania, Uganda, Kenya (1999), later joined by Rwanda and Burundi (2007), South Sudan (2016) and the Democratic Republic of the Congo (2022).

[2] Read together with Annexes I and II of the CMP, 2010. See also Article 13 CMP, 2010 on Rights of Establishment and Movement.

[3] Catherine Barnard, ‘The Day the Clock Stopped: EU Citizenship and the Single Market’ in Panos Koutrakos and Jukka Snell (Editors), Research Handbook on the Law of the EU’s Internal Market (2017) p.103.

[4] EACJ Reference No. 5 of 2011, Samuel Mukira Mohochi v The Attorney General of the Republic of Uganda (2013).

[5] The saying in Swahili language: ‘Hata ukioga, mjini huendi!’ and ‘Hata unawe mikono, huli!’.

[6] Samuel Mukira Mohochi’s case (n. 4) at paragraph 130.

[7] For instance, Annex I, Regulation 4 (e) to the CMP, 2009 specifies that it does not apply to citizens of partner states entering territories of another partner state as workers or self-employed. Thus, free movement is only accorded to a few classes of persons: visitors, students, persons on transit etc.    

[8] Samuel Mukira Mohochi’s case (n. 4) at paragraph 48.

[9] Ibid.

[10] See Ibid., at paragraph 50 and 80.

[11] Ibid., at paragraph 76.

[12] Ibid.

[13] Ibid.

[14] Ibid., at paragraphs 48 and 52.

[15] See for instance, EACJ Reference No. 1 of 2008, Modern Holdings (EA) Limited v Kenya Ports Authority (2009).

[16] See for instance EACJ Reference No. 7 of 2017, British American Tobacco (U) Ltd (BAT) v AG of Uganda (2019) at paragraph 108.

[17] See for instance Reference No. 6 of 2016, Grand Lacs Suppliers S.A.R.L. & Others v The AG of Burundi (2018).

[18] Samuel Mukira Mohochi’s case (n. 4) at paragraph 49 and 50.