The Legality of the Appellate Division and the Human Rights Jurisdiction of the East African Court of Justice of the East African Community
Authors Kennedy Gastorn
Affiliations: Associate Professor, University of Dar es Salaam School of Law; Advocate of the High Court of Tanzania and Postdoctoral Fulbright Visiting Research Scholar, Buffalo Law School, State University of New
Source: Africa Nazarene University Law Journal, 2015, Issue 1, p. 41 – 64
This article challenges the legality of the East African Court of Justice (EACJ) Appellate Division on the account of the recent decision of the EACJ First Instance Division, in which the 2006 amendment to the Treaty Establishing the East African Community (the Treaty) was impugned as having been made without adequate consultation, hence in infringement of the Treaty provisions. It argues that since the EACJ concluded that the amendment constituted an infringement of the Treaty, and recommended that the changes be revisited at the earliest opportunity upon reviewing the Treaty, the legality of the Court’s Appellate Division, which incidentally is a product of the amendments, is questionable. [The East African Centre for Trade Policy and Law v The Secretary General of the East African Community, EACJ Reference No 9 of 2012 (First Instance Division).] The article reviews the existing mandate of the EACJ on human rights and discusses the constitutional doctrine of basic structure as applicable to the Treaty, particularly on the inviolability of provisions on human rights in the Treaty. Additionally, the article argues that provisions on human rights do not constitute the basic structure in the Treaty. Furthermore, it discusses the legality of the recent decision by the Council of Ministers to engage judges on a full-time basis as sitting judges in Arusha while the court is not yet fully operational. This decision violates Article 140(4) of the Treaty, which allows sitting judges only when the EACJ is fully operational. It is submitted that the EACJ will be fully operational when it is given ‘such other original, appellate, human rights and other jurisdictions’, in terms of Article 27(2) of the Treaty, and not in its current form.