• Our courts’ record on human rights issues has been reasonably good.
• For other countries with less robust judiciaries, the EACJ may be a bigger benefit than to Kenyans.
In 1995 the International Criminal Tribunal for Rwanda was set up in Arusha.
It deals with cases of individuals who bore the greatest responsibility for the tragic events in Rwanda in 1994. It sentenced 62 individuals.
This may give Kenyans the impression that courts in Arusha are not about Kenya. Though the ICTR wound up, there are two other courts in Arusha, which also do matter for Kenyans. One is the East African Court of Justice and the African Court of Human and People’s Rights. Each is the organ of a union of African states: The first of the East African Community and the second of the African Union.
This article focusses on the EAC and its court. People are probably even less aware of what these courts do than of the existence of the political organisations. Political meetings attract media attention, if only because politicians attract it – seek it out - and because they involve a lot of money.
The media seem to ignore it most of the time, and Kenyans only get excited about it when politicians do – such as when some of them land a plum job, as the newspapers might say, like being a member of the East African Legislative Assembly (EALA).
These are chosen by the Kenyan Parliament – as in each country. The EAC Treaty says those chosen must “represent as much as it is feasible, the various political parties represented in the National Assembly, shades of opinion, gender and other special interest groups” in their country.
And the website of the EALA comments that “members come from diverse backgrounds such as business, NGOs, retired civil servants and members of the national assemblies. Aside from the latter, most have little or no parliamentary (or political) experience.” Well, it is little surprise that our MPs tend to reserve these goodies for their own. Seven of those they sent to Arusha in 2017 were former MPs. One is Raila Odinga’s brother and another Kalonzo Musyoka’s son.
The East African Treaty, 1999 says it is about “economic, social, cultural, political, technological and other ties for [the member countries’] fast, balanced and sustainable development.” It is much concerned with economic matters (from a capitalist perspective), such as cooperation, free movement of goods, people, capital and technology.
It also says that to become a member, a country must be acted on the basis of various matters, including “adherence to universally acceptable principles of good governance, democracy, the rule of law, observance of human rights and social justice”.
This may produce a hollow laugh from many readers; after all, the members are (in alphabetical order not of adherence to values): Burundi, Kenya, Rwanda, South Sudan, Uganda and the United Republic of Tanzania). It lays a good deal of emphasis on the environment (not just the economic one) and on the empowerment and involvement of women.
Whether the community will survive or suffer — as the first Community did — from the greed and self-interest of the prominent individuals in the separate countries may depend on how supportive the citizens of those countries are.
With a group of young lawyers undergoing (we hope enjoying) a training programme on public interest litigation, we recently sat in on delivery of a ruling.
This was only a minor stage in a case, but it shows what important matters the court may deal with. The case involves a challenge to the alteration of the Constitution of Uganda to remove the age limits for Presidents. A similar challenge failed before the Ugandan courts. But the EACJ case argues that even courts can breach the treaty, as can parliaments and executives.
The basis for the challenge in the EACJ is the treaty provisions saying: “The Partner States undertake to abide by the principles of good governance, including adherence to the principles of democracy, the rule of law, social justice and the maintenance of universally accepted standards of human rights.”
Perhaps you can begin to see how the EAC Treaty and the Court could be relevant to the protection of our Constitution. And the broader provisions of the treaty are designed to encourage the development of the community through trade and cooperation. And even if the government would not always be keen to enforce the treaty, it is possible for affected citizens and businesses to go to the court to enforce the treaty.
There are two Kenyan judges on the court: Charles Nyachae sits in the First Instance Division (where cases begin), while Justice Aaron Ringera sits in the appeal court. Nyachae, of course, was head of the Commission on the Implementation of the Constitution. Previously Justice Isaac Lenaola, now on the Supreme Court, sat on the EACJ.
There is, of course, a risk that the Treaty – like other law – will be used to uphold the interests of the already powerful. An example is a recent decision about Uganda’s increase of duty on cigarettes imported from Kenya – treating them “foreign” products. The court decided that this violated the treaty.
It will come as no surprise that the challenge came from the British American Tobacco Company – always eager to protect its own profits, as in the various cases it has brought against government measures to reduce tobacco consumption and protect the health of East Africans.
Some people might think that anything that makes cigarettes more expensive is good for health – though no doubt those working in the tobacco industry in Kenya, employees as well as the company, would welcome something that protected the sale of their product in Uganda.
Another case showed some promise of benefit to the people, when Peter Anyang' Ny'ong'o challenged the way Kenyan EALA members were chosen. Individuals were nominated by their parties, not even voted for in the National Assembly. The Court held that this was not an “election” at all. As we have seen, what Kenya replaced it with is still pretty bad.
Our courts’ record on human rights issues has been reasonably good. For other countries with less robust judiciaries, the EACJ may be a bigger benefit than to Kenyans. But even for Kenya, an additional way of approaching an issue may be valuable. And sometimes the Court is able to deal with a matter that is not one of the human rights but is still obviously important.
In 2014 the Court decided that the plan of the Tanzanian government to build a tarmacked road across the Serengeti violated the treaty on protection and “sustainable utilisation” of natural resources. Tanzania stopped the project, at least for the time being — a project that would have harmed the Masai Mara wildlife environment.
The political overlords who think the EAC belongs to them are as keen at that level to protect themselves as they are at national levels. They can’t do away with the court, but after the Anyang Ny'ong'o case, they introduced a rule that you must bring any case before the court within 60 days of the happening that you are complaining about.
The damaging impact of that rule is shown by the case where the Independent Medico-Legal Unit tried in 2011 to bring before the Court the failure of the Kenyan government to protect the people of M Elgon. It argued that provisions of the Treaty about the promotion of peace, security, and stability, and human rights as a community principle were violated. The case was thrown out because of the 60-day rule. However, the case can suggest ways of using the Treaty.
There are other principles of the Treaty that might be used to protect certain sections of our own community. Think about “the mainstreaming of gender in all [the State’s] endeavours and the enhancement of the role of women in cultural, social, political, economic and technological development” in Article 5.
There is potential in the Treaty to improve the lives of Kenyans. Civil society should perhaps focus a bit more on what the Community and its institutions might be used to achieve.