The EACJ in the Shadows of Integration
The process of regional integration presents a range of challenges and contentious issues. Those include, matters related to elimination of customs duties and Non-tariff barriers (NTBs), tariffs and other Charges Having Equivalent Effects (CHEEs), Quantitative restrictions or measures having an equivalent effect to quantitative restrictions (MEQRs), among others.
A strong judicial body is indispensable for Regional Economic Community (REC) to achieve integration objective through integrationist judgments. In the East African Community (EAC), the East African Court of Justice (EACJ) serves as the principal judicial body of the community, to the above end. Comparatively, Court of Justice of the European Union (CJEU) has significantly advanced integration through its judgments. However, unlike the CJEU, EACJ has predominantly handled cases concerning the rule of law good governance, and environment protection, with relatively few cases, if any- (and arguably irrelevant), addressing matters of intra-regional trade.
This article reviews EAC dispute resolution mechanisms (DRMs), highlighting how the rise of alternative DRMs has compromised the community agenda.
Quid est the EACJ: A Guardian in Name, not in Power?
While Article 9 of the EAC Treaty established the EACJ, chapter eight of the same treaty deals with its jurisdictional functioning. The Court comprises two divisions: The First Instance Division and the Appellate Division. Its primary role is to ensure the observance of the law in interpreting, applying, and ensuring compliance with the Treaty. It accepts cases from Partner States, EAC institutions, and individual residents within those states.[1]
The First Instance Division has original jurisdiction over matters within the scope of the Treaty, except for arbitration cases, preliminary rulings, and advisory opinions, which fall under the exclusive jurisdiction of the Appellate Division, as specified in Articles 32, 34, and 36, respectively.
However, community’s critical matters, such as those related to intra-community trade, notably, NTBs, duties, CHEEs, quantitative restrictions, and MEQRs, which are vital to the success of single market are excluded from the EACJ’s jurisdiction. Instead, these matters are handled by other DRMs established by the EAC, including the Council of Ministers, the Committee on Trade Remedies, the Competition Authority, national courts, and other mechanisms developed by PS.
The Overreach of Executive Power in Dispute Resolution: EAC Council of Ministers
The EAC Council of Minister established as the Community policy organ Article 14 of the EAC treaty, also plays a role in dispute resolution.[2] Pursuant to article 12 of the EAC Customs Union protocol (CU), “The Council” has the authority to review Common External tariffs (CET) and remedy any adverse effects that may be experienced by any PS to safeguard Community interests. Additionally, the Council, has been mandated to issue a directive, decision or recommendations concerning the elimination of the NTBs.[3]
The decision of the council shall be binding on the PS, on all organs and institutions of the community save the summit, the EACJ and the Assembly within their jurisdictions.[4] The Council’s remedying function may blur the line between policy-making and quasi-judicial functions. Thus, engagement of this policy-making organ in resolution of disputes, potentially usurps the adjudicative function of the EACJ.
East African Community Committee on Trade Remedies
The EAC Committee on Trade Remedies is established under Article 24 of the EAC CU protocol to deal with matters relating to: the rules of origin, anti-dumping measures, subsidies and countervailing measures, among others.[5] The committee is also mandated to entertain matter refer to it by the Council under NTB act, and provide the decision accordingly.[6] Notably, the EAC Trade Remedies Committee’s decision is final.[7]
The elimination of NTBs, CHEEs, duties and quantitative restrictions, as well as MEQR remains a major challenge in regional integration efforts like the EAC, similar to the EU. As noted by Craig and de Búrca, while removing formal tariffs is essential, those factors can still hinder the development of a single market. In the EU, NTB-related issues are primarily resolved by the CJEU, which plays a central role in ensuring market integration
Drawing from the EU model, the CJEU’s strong adjudicatory role has deeply shaped European integration. The author argues that empowering the EACJ with similar judicial authority would strengthen regional integration by filling institutional gaps and improving the enforcement of integration related issues.
The influential role of the alternative DRMs established by the EAC remains questionable, particularly in terms of their contribution to the advancement of EAC objectives. This is especially evident when compared to the more binding and precedent-setting rulings of the EACJ. Therefore, it would have been more appropriate to vest the EACJ with unlimited jurisdiction, rather than establishing parallel DRMs.
National Courts: Partners or Competitors in Integration Law
The original jurisdiction of applying the treaty provisions belonged concurrently to the EACJ and National Courts.[8] Although the EACJ is the community’ s highest judicial organ, the role of domestic Courts remains very crucial relatively in the integration process. They involve in the regional matters in one way or another, but primarily by way of “preliminary references” seeking for “preliminary rulings” on the matter concerning to the community law brought before them.[9]
Despite EACJ decisions taking precedence,[10] “National Courts” deal with important regional matters such as Tax Matters. For instance, Rwandan Commercial Court hears at the first instance “tax cases” under the EAC Customs Management Act.[11] National Courts also deliberate on the infringement of rights and liberties recognized under Common Market Protocol.
Some critics worry that the EACJ might conflict with national courts by overstepping its role, especially in interpreting the Treaty or acting like an appeal court. However, this hasn’t happened so far, as the EACJ has remained within its mandate under Article 27 of the Treaty.
Losing Ground: Impact of DRM in Chipping Away the EACJ’s Core Jurisdiction
The EAC’s establishment of other DRMs than EACJ has drawn significant attention from scholars, mostly arguing that the established frameworks weakened the EACJ’s core competence. However, the EACJ, in its various rulings such as in East Africa Law Society v Secretary General (SG) of the EAC, made it clear that “the DRMs created do not oust, exclude or infringe upon the EAC jurisdiction”.[12]
In East African Center for Trade Policy and Law v SG of the EAC, EACJ stated that the designated particular mechanisms are intended for speedy and effective resolution of trade dispute. Nevertheless, the author takes view that, the EAC structure of DRMs risks marginalizing the EACJ, and undermining its ability to promote integration, leaving the court with limited control on principal matters of the community. Consequently, the EACJ is left with limited authority over fundamental matters affecting the community, thereby, fundamental areas within the community risk to remain inadequately addressed.
Conclusion
The dispersion of DRMs beyond EACJ constitutes a significant challenge to the development and effective interpretation and application of community laws. If these obstacles are not promptly addressed, they could slow down the integration project. The EACJ’s role is increasingly limited as other institutions encroach on its functions. To advance integration, it should be strengthened as the central legal authority, with other dispute resolution mechanisms offering advisory input only, preserving the EACJ’s ultimate authority in matters of legal interpretation and integration.
[1] The Treaty for Establishment of Establishment of East African Community [1999], art. 21-28.
[2] EAC Treaty, art. 14.
[3] EAC NTB act, 2017, s12..
[4] Treaty for Establishment of Establishment of East African Community [1999], art. 16.
[5] The East African Community Elimination of Non-Tariff Barriers Act [2017], art. 12. together with The EAC CU protocol [2005], art. 24.1(f).
[6] The East African Community Elimination of Non-Tariff Barriers Act [2017], s 6.
[7] Annex IX of the Customs Union Protocol, Regulation 6(7); see also art. 24 (5) of the EAC CU protocol.
[8] Ugirashebuja E. et al, (eds), East African Community Laws: Institutional, Substantive and Comparative EU Aspects, (Brill Nihjoff 2017) 265.
[9] EACJ, “EACJ workshop for Judges of the National Courts & Civil Society Workshop” September 2014, https://www.eacj.org/?p=2572 [14th January 2024];
[10] Treaty for Establishment of Establishment of East African Community [1999], art. 33 (2).
[11] The law No 30/2018 of 02/06/2018 determining the jurisdiction of Courts, art. 81.
[12] East Africa Law Society v Secretary General of the East African Community, Reference No. 1 of 2011.
