Enforcement of Judgements of the East African Court of Justice. Legal Application and Binding Nature

Table of Contents

CHAPTER ONE. GENERAL INTRODUCTION
1.1 BACKGROUND OF THE STUDY
1.1.1 The Jurisdiction of EACJ
1.1.2 Admissibility requirements
1.1.3 Exhaustion of local remedies
1.1.4 The draconian two-month rule: An obstacle to accessing justice
1.1.5 Relationship between the East Africa Court of Justice and National Courts of member states
1.2 PROBLEM STATEMENT
1.3 Research questions
1.4 RESEARCH HYPOTHESIS
1.5 OBJECTIVES OF THE STUDY
1.6 RESEARCH METHODOLOGY
1.7 SCOPE OF THE STUDY
1.8 STRUCTURE OF THE STUDY

CHAPTER TWO. LEGAL ENFORCEMENT AND APPLICATION OF EAC LAW PLUS THE POSITION OF JURISPRUDENCE THEREON
2.1 KEY CONCEPTS
2.1.1 Legal enforcement/execution of judgement
2.1.2 Enforcement of a judgment
2.1.3 Application of EAC Law
2.1.4 Jurisprudence
2.1.5 Binding nature of judgments
2.2 Legal enforcement and Application of EAC Law
2.2.1 The EAC Law
2.3 The evolving Jurisprudence from the EACJ on interpretation of the Treaty
2.3.1 Individuals locus standi
2.4 Evolving EACJ Jurisprudence on the Rule of Law and Human Rights
2.4.1 The case of Katabazi v Secretary General of the East African Community
2.4.2 The aftermath Developments of Katabazi case
2.5 Evolving Jurisprudence from Domestic Courts of EAC Member States on Enforcement and implementation of Community Law
2.6 Evolving Jurisprudence on Recognition and Enforcement of Foreign Judgments in EAC
2.7 Conclusions and Recommendations

CHAPTER III. THE BINDING NATURE OF JUDGMENTS OF EACJ
3.1 INTRODUCTION
3.2 BINDING FORCE OF JUDGMENTS
3.3 THE NATIONAL AUTHORITY EMPOWERED TO EXECUTE COURT'S JUDGMENTS IN EAC MEMBER STATES
3.4 THE EXTENT TO WHICH THE EAC STATES VOLUNTARILY EXECUTE THE EACJ JUDGMENTS
3.5 THE AVAILABLE MECHANISMS TO ENSURE COMPLIANCE IN THE EVENT THAT A STATE REFUSES TO IMPLEMENT THE COURT’S JUDGMENT
3.6 ENFORCEMENT OF DECISIONS IN THE EACJ
3.7 THE MECHANISMS AND PROCEDURES IN PLACE TO SANCTION A PARTY THAT FAILS TO IMPLEMENT A JUDGMENT AGAINST IT
3.8 A COMPARATIVE APPROACH
3.8.1 THE SADC TRIBUNAL: A Brief Background
3.8.2 The Mike Campbell Private Ltd V Republic of Zimbabwe (interim decision)
3.8.3 Background of this litigation against Zimbabwe
3.8.4 Mike Campbell Private Ltd V Republic Of Zimbabwe (merits)
3.8.5 Enforcement of the SADC Tribunal Decision
3.8.6 The Fick Cases (SADC Tribunal, North Gauteng High Court, Supreme Court of Appeal and the Constitutional Court of South Africa)

General conclusions

Recommendations

Bibliography

DEDICATION

To my dear mother Annonciatha NYIRABAGANDE;

Sometimes you could not enjoy the pleasurable things of the world because of my constant need for money,

To my late father, BIZIMANA Damien, who sowed the seeds of academic excellence in the family. He was my early inspiration, he showed me the path, and that, i will follow to even greater heights. May His Soul Rest in Eternal Peace ;

To my siblings;

To my classmates and friends;

To all victims of unenforced judgments and Researchers;

I dedicate this work

ACKNOWLEDGEMENTS

The completion of this research would not have been possible without the hard work and commitment of many people. Different persons have contributed to this work in terms of guidance, correction, editing, providing information, proofreading and other assistance that came in a variety of forms. Failing to acknowledge them would be unappreciative.

To this end, I would like to extend special thanks to my supervisor, Me MAZIMPAKA Jean Paul the Supervisor of this research work for imparting a great deal of knowledge and skills relevant to this research and guiding me. Without his singularly dedicated involvement every step of the way this research would have never been accomplished. My gratitude also goes to Me BAGABO Faustin for his insight on the topic

I acknowledge the University of Rwanda (UR) particularly the Faculty of Law for the quality training accorded to me for the past four years. The efforts of both academic and non-academic staff in organisation and implementation of the faculty agenda are much appreciated.

My brothers and sisters, the love, care and support will never be forgotten. To my parent, NYIRABAGANDE Annonciata, for your prayers and enduring many years without your second born, I really appreciate.

To all my friends and colleagues in the Law School not mentioned here, I know I was mostly unavailable and not reachable, even on social media platforms like Facebook and Twitter, thank you for being patient with me.

Most importantly, all thanks and praises be to the Most High God, without His love this work would not have been possible.

TURATSINZE Paul

LIST OF ABBREVIATIONS AND ACRONYMS

AU: African Union

CoE: Council of Europe

EAC: East African Community

EACJ: East African Court of Justice

ECHR: European Convention for the Protection of Human Rights and Fundamental Freedoms

ICJ: International Court of Justice

OAU: Organisation of African Unity

RECs: Regional Economic Communities

PCIJ: Permanent Court of International Justice

SADC: Southern Africa Development Community

UN: United Nations

Art: Article

Ed: Edition

E.g: Example

Idem: The same

Par: Paragraph

N[0]: Number

Vs: Versus

UR: University of Rwanda

AD: Appellate Division

EALS: East African Law Society

Supra: Previous

CHAPTER ONE. GENERAL INTRODUCTION

1.1 BACKGROUND OF THE STUDY

The East African Community (EAC) Treaty established the East African Court of Justice in 1999 under article 9(e­­­­).¹ The East African Court of Justice (EACJ) came into being on 30 November 2001, after an inauguration ceremony that signified the commencement of operations of the East African Community’s (EAC) judicial organ.² Not much happened during the Court's embryonic stage. It was not until 2005 that the EACJ received its first case - four years down the line since its inception. Being the judicial arm of the EAC, the EACJ is important to furthering the EAC project. As per article 23 of the EAC Treaty, the EACJ is entrusted with the role of ensuring adherence to, the application of and compliance with the EAC law. In fulfilling this initial mandate, the EACJ is expected to shape the EAC integration project. The only way the EACJ can be influential is by having its decisions complied with by the Member States, as well as by amending some of the EAC Treaty provisions which circumscribe the accessibility and availability of justice before the EACJ .

So far the EACJ has attempted to fulfil its mandate by adjudicating on a diverse range of issues, ranging from trade,³ human rights,⁴ the free movement of persons,⁵ environmental law,⁶ to disputes involving EAC employees,⁷ and to matters concerning the election of members of the East African Legislative Assembly (EALA).⁸ Despite the strides it has made, the Court continues to encounter difficulties which are preventing it from fulfilling its duties, for example, more often it produces human rights verdicts which member states are not ready to comply with other difficulties include particularly those directly touching on the integration project. Tracing back the history, the EACJ is trying to emulate the defunct East African Court of Appeal (EACA), established during the days of the former EAC.⁹ The EACA had jurisdiction to determine only civil and criminal appeals originating from the decisions of the national courts of the then EAC Member States.¹⁰ Its case law is highly appreciated by legal practitioners and jurists across the EAC region even today. Understandably, the current EACJ would not want to fall short of the legacy of its predecessor.

The current EACJ was established at the time of the proliferation of international adjudicatory bodies during the 1990s. Currently the EACJ serves the EAC, which is an intergovernmental organization consisting of six countries. South Sudan has recently acceded to the EAC Treaty and become the most recent member,¹¹ joining Burundi, Kenya, Rwanda, Tanzania and Uganda. The admission of South Sudan into the bloc was received with mixed feelings. This is because, without a doubt, the Country's economic and political condition as well as its track record in governance, human rights and the rule of law (which are key tenets for inviting a new member into the EAC) invites many questions on its admission.

Regional integration in East Africa dates back to 1967, when the former EAC was established.¹² The 1967 Co-operation collapsed due to economic and political differences among the then Member States. Being aware of the importance of regional integration, the EAC was re-established in 1999 through the signing of the Treaty Establishing the EAC.¹³ The EAC Treaty, to which the Member States have consented, features the EACJ as an international court.¹⁴ The current EAC has a range of objectives in the social, political, cultural, economic and legal contexts.¹⁵ Eventually, Member States aim to attain political federation.¹⁶ Achieving that goal will require a robust judicial body capable of resolving integration disputes, amongst others; in this case, the EACJ.

The EAC is one of many Integration projects across the globe. Regionalism in Africa has been relatively fruitful. Initiatives for regional integration in Africa gathered pace after the formation of the Organisation of African Unity (OAU) in 1963.¹⁷ This initiative began with the establishment along geographical lines of regional blocs in the form of economic communities.¹⁸ RECs or sub-regional organisations have since concerned themselves with the implementation of regional agendas. Prior to the 2000s, RECs were established to advance the underperforming African economy. After the end of the Cold War and with the new emphasis on the rule of law, good governance and human rights global ideals, Africa had to re-assess itself. This resulted in institutional transformation as well as legal reforms. The OAU was transformed into the African Union (AU) in 2002, and at the same time, the sub-regional blocs reinvigorated themselves in alignment with the new vigour in the world order. They established judicial organs able to conduct checks and balances in their organisational activities. Sub-regional courts such as the EACJ are now playing different roles in strengthening regional integration within their respective groupings. They are expected to be instrumental in improving trade relations in their communities. In addition, human rights and the rule of law have emerged as major issues of contention in these courts. One of the factors that has led to the establishment of sub-regional groupings across the globe has been the acceptance that their judicial bodies may adjudicate human rights disputes.¹⁹

Contemporary scholarship dealing with the functions of sub-regional courts notes that the adjudication of human rights is one of their desirable functions, but it is becoming common to find these courts struggling under the burden of having to deal with a multiplicity of matters in addition to those initially entrusted to them.²⁰ As a result, they have not been able to stamp their authority on their respective communities in matters of either trade or human rights. Most RECs have become economically oriented institutions and are missing out on advancing their communities in important matters such as democracy, good governance and human rights.

This study revisits the EACJ's functioning and effectiveness. In doing so, the legal challenges affecting the functioning and effectiveness of the Court will be identified. Thus, the study is divided into four sections.. In this section, the legal challenges hindering the EACJ in its attempts to effectively discharge its duties are addressed.

1.1.1 The Jurisdiction of EACJ

It is fair to say that the EACJ's jurisdiction has been the focal point of discussion since its inception. The reason for this is the scope of the Court's jurisdiction, which is seen by many to be narrow. The nature of the cases adjudicated by the Court so far has mostly had to do with the governing principles of the EAC Treaty, particularly those provided under articles 6(d) and 7(2). Commercial actors have virtually boycotted the EACJ as a result of the Court's early decisions on trade. The long-awaited Protocol to extend the Court's jurisdiction was expected to address these key issues and hence to improve the Court's functioning. However, as will be seen in this article, despite the fact that the newly adopted Protocol has emerged after a long period of pressure from EAC citizens that the jurisdiction of the EACJ be expanded, the Protocol has really not introduced any new feature(s) into its work. Article 23 of the Treaty states that the purpose of the Court is to ensure the adherence to law in the interpretation and application of and compliance with the Treaty²¹. Whereas per article 27 of the EAC Treaty, the EACJ's jurisdiction is to be expanded in phases.²² The article reads as follows:

1. The Court shall initially have jurisdiction over the interpretation and application of this Treaty.
2. The Court shall have such other original, appellate, human rights and other jurisdiction as will be determined by the Council at a suitable subsequent date. To this end, the Partner States shall conclude a protocol to operationalize the extended jurisdiction.

The above provision implies that appellate functions, and human rights and any other areas of jurisdiction could be expanded upon the adoption of a new Protocol. The provision also holds out the possibility of expanding the "original" mandate of the Court. On 20 February 2015 the Summit endorsed the Protocol for expanding the EACJ's jurisdiction pursuant to article 27(2) of the EAC Treaty. The Protocol claims that when it enters into force it will expand the Court's already existing jurisdiction in trade and investment matters, arising out of the implementation of the Customs Union, the Common Market and the Monitory Union Protocols.²³ The Protocol awaits ratification, which was directed to be finalised by 30 November 2015.²⁴ At the time of the preparation of this article, Rwanda is the only Member State that has ratified the Protocol. It is submitted that the new Protocol does not present new features in the work of the Court. It was expected that it would at least expand the original mandate, even if only by allowing the EACJ to interpret the domestic laws of the Member States.

The EACJ already had jurisdiction in interpreting trade and investment issues arising from the Customs Union and Common Market Protocols. According to the Vienna Convention on the Law of Treaties, a treaty can be "… in a single instrument or in two or more related instruments …".²⁵ EAC protocols are "related instruments" to the EAC Treaty and are within the range of the EACJ's jurisdictional mandate. This interpretation is also supported by article 151(4) of the EAC Treaty. The provision establishes that protocols constitute an integral part of the Treaty. The EACJ consolidated this position in EALS v Secretary General of the EAC.²⁶ In this case the parties contested over the EACJ's jurisdiction in interpreting the Customs Union and the Common Market Protocols. The EACJ reaffirmed its supremacy by holding that it does not require an extension of its jurisdiction as provided by article 27(2) of the EAC Treaty to exercise jurisdiction over the two Protocols. In the same fashion, the Court should preside in any matter arising out of the Monetary Union Protocol.

1.1.2 Admissibility requirements

Locus stand

This refers to the capacity to bring actions or to appear in court. It therefore refers to the Institution of suits before the East African Court of Justice. The Treaty for the establishment of the EAC provides that cases can only be instituted at the EACJ in the following manner:

(a) Partner States: A Partner State may make a reference to the Court: If it considers that another Partner State or an organ or an institution of the Community has failed to fulfill an obligation or has infringed a provision of the Treaty, may refer the matter to the Court. A State may also seek the Court to determine the legality of any Act, regulation, directive decision or action on the ground that it is ultra vires or unlawful or infringes the provisions of the Treaty.²⁷
(b) Secretary General: If a Partner State fails to fulfil its obligation under the Treaty, the Secretary General may refer the matter to the Court.²⁸
(c) Reference by Legal and Natural Persons: A legal or natural person resident in any of the Partner States may challenge the legality of any Act, regulation, directive, decision or action of a Partner State or an institution of the Community on the grounds that it infringes the provisions of the Treaty.²⁹
(d) Reference by national courts: where national courts refers to the Court for preliminary ruling question of Treaty interpretation or determination of legality of a Community law or action.³⁰

1.1.3 Exhaustion of local remedies

Under International law, the doctrine of exhaustion of local remedies states that, "a State should be given the opportunity to redress an alleged wrong within the framework of its own domestic legal system before the international responsibility can be called into question at [the] international level.³¹

There is no requirement that applications exhaust domestic remedies as a condition before bringing an application to the Court.³² The reason for this position is based on the principle of enhancing a “people-centered and market driven co-operation” as enshrined in Article 7(1) of the EAC – Treaty.³³

1.1.4 The draconian two-month rule: An obstacle to accessing justice

Article 30(2) of the EAC Treaty requires complaints to be filed before the EACJ within two months of the enactment, publication, directive, decision or action that contravenes the EAC law, or of the day on which a particular breach has come to the knowledge of the complainant.³⁴ The provision is exclusively intended to restrict applications brought by individuals. Other organs and institutions with locus to the Court are not bound by article 30(2). While the insertion of article 30 is seen as a progressive step towards permitting individuals to have direct access to the EACJ, the time limit imposed under article 30(2) is radical and is an attempt to discourage individuals from accessing the Court. The EACJ, in particular the AD, is conservative in interpreting the two-month rule. The leading case on the rule is Attorney General of Uganda v Omar Awadh.³⁵ In this case the EACJ took the position that the strict application of the two-month rule is necessary for the purpose of legal certainty. The AD established that it could not uphold the principle of continuing violation since it is a human rights principle, and the Court does not have the jurisdiction to deal with human rights cases.³⁶ The AD narrowly associated the continuing violation doctrine with human rights alone, while the doctrine can be supported whenever there is a breach of the rule of law, such as in the matter of unlawful detention.

The strict application of article 30(2) is causing many references to fail before their merits are considered because they exceed the time limit.³⁷ In the case of continuing violations such as enforced disappearances and arbitrary detention, the EACJ has rejected requests to extend the time for submitting a claim, contrary to what is provided under Rule 4 of the EACJ Rules³⁸. Without concrete reasoning, the EACJ defends itself by claiming that the Treaty does not empower it to stretch the two-month time limit. This is what the EACJ takes as a precedent when declining to uphold the continuing violation doctrine:

… nowhere does the Treaty provide any power to the Court to extend, to condone, to waive, or to modify the prescribed time limit for any reason (including for "continuing violations"³⁹ ).

The current position of the EACJ is contrary to the spirit of the EAC Treaty pertaining to sustaining the rule of law and social justice. The two-month period applies only after a complainant becomes aware of the alleged violations.⁴⁰ The period for the applicant to acquire knowledge is not limited, and the grace period "can be as long as it takes for the complainant to be possessed of the requisite knowledge".⁴¹

In early cases where the time limit was in contention, the FID condoned the applications of applicants who filed their cases well beyond the two-month window. In IMLU v Attorney General of Kenya,⁴² a reference filed in 2010, the applicant took Kenya to the EACJ concerning the violence that took place in Mount Elgon between 2006 and 2008 in the aftermath of the election. The applicant accused the government of Kenya of failing to take any administrative, judicial or other measures to prevent or punish the perpetrators. The allegations made were framed to preserve the rule of law, good governance and justice, which are not disqualified by a statutory limit.⁴³ The respondent disputed the admissibility of the case, arguing that the case had been submitted outside the two-month limitation period as provided under article 30(2) of the Treaty. After considering the arguments of both parties, the FID stated the following:

It is our considered view, that the matters complained of are failures in a whole continuous chain of events from when the alleged violations started until the Claimant decided that the Republic of Kenya had failed to provide any remedy for the alleged violations. We find that such action or omission of a Partner State cannot be limited by mathematical computation of time.⁴⁴

Being dissatisfied with the ruling of the FID, the Attorney General of Kenya filed an appeal, where his main argument was that the case was time- barred as provided for under article 30(2) of the EAC Treaty. The AD overruled the previous reasoning and struck out the reference by holding:⁴⁵

The Court below could not rule otherwise on the face of the explicit limitation in article 9(4) to the effect that the Court must act within the limits of its powers under the Treaty. It follows, therefore, in our view, that this Court is limited by article 30(2) to hear References only filed within two months from the date of action or decision complained of, or the date the Claimant became aware of it … there is no enabling provision in the Treaty to disregard the time limit set by article 30(2). Moreover, that article does not recognize any continuing breach or violation of the Treaty outside the two months after a relevant action comes to the knowledge of the Claimant; nor is there any power to extend that time limit … The reason for this short time limit is critical – it is to ensure legal certainty among the diverse membership of the Community.

The AD observed that the matter was time-barred, as the respondents had become aware of the violations through various widely publicised reports between 2006 and 2009, while the Reference was filed in 2010. The Court stressed that article 30(2) of the EAC Treaty should be interpreted in terms of its literal meaning and that the provision did not make any express provision for the concept of continuing violations. The Court was also of the view that it had no powers to extend the two-month period stipulated under the Treaty, as its powers were limited by article 9(4).

Another case was Rugumba v Attorney General of Rwanda.⁴⁶ The applicant accused the Government of Rwanda of impugning the founding principles provided in the EAC Treaty by unlawfully arresting and detaining one Seveline Rugiga Ngabo from 20 August 2010 to 28 January 2011. The applicant further asserted that while the reference was filed on 8 November 2010, the detention of Seveline Rugiga Ngabo lasted up until 28 January 2011, and therefore, since the detention was continuous, the time limitation clause imposed under article 30(2) of the EAC Treaty could not be invoked.⁴⁷ The FID upheld its previous decision in the IMLU case by stating that:

… [W]here issues in contest are criminal in nature and the action complained of is continuous (such as detention), it would be against the principles known to the rule of law to dismiss the complaint on the basis of strict mathematical computation of time.⁴⁸

The Court also held that the applicant had filed the application within time. The decision was later reaffirmed by the AD but not on the basis of the continuation of events rule. The AD found that the applicant acquired knowledge of the matter alleged within two months of the claim being brought to the Court. By strictly applying the two-month rule, the EACJ had disregarded its own jurisprudence in the EALS v Attorney General of Kenya case,⁴⁹ when it called for a purposeful interpretation approach to the EAC Treaty as opposed to a restrictive and literal approach. It is submitted that article 9(4) of the EAC Treaty does not prevent the Court from adopting a purposeful interpretation of the Treaty. Also, the Court could have invoked its inherent powers so as to promote justice, which it did not opt to do.

1.1.5 Relationship between the East Africa Court of Justice and National Courts of member states

One of the unique aspects of the Court’s jurisdiction is to hear and determine cases referred to it for preliminary ruling by the national courts. This is one of the rare opportunities where national courts, at all levels, are given a chance to interact with an international court through litigation. When faced with a case requiring the application or the interpretation of the Treaty or any other East African Community law, the national courts are required to refer the matters to the EACJ for preliminary rulings.⁵⁰

Article 33(1) of the Treaty provides that disputes to which the Community is a party shall not be excluded from the jurisdiction of the national courts of partner states. However, that very provision at Article 33(2) gives precedence to the EACJ over national courts on decisions of the Court on the interpretation and application of the Treaty. The challenge with this provision is that it does not provide what would happen if a constitutional question should arise as regards a decision emanating from the Court because the EACJ does not entertain appeals from the national courts.

Where there is concurrent jurisdiction as contemplated in article 33 of the Treaty, the EACJ also lacks superiority over national courts of the member states.⁵¹ This same challenge was also witnessed in the defunct East African Court of Appeal. There is also lack of clear provisions that entrench the position of the Community law and the court against those of the member states will not only put the court at collision path with the member state’s courts but will also lead to uncertainty as to the law to be applied and a multiplicity of interpretations to a single treaty provision.⁵²

1.2 PROBLEM STATEMENT

The most generic challenge faced by many international courts is the level of obedience by their member states. The EACJ is not an island to this common reflection. Essentially, international courts are influential only when their decisions are easily complied with and executed by member states. If not, as with the case of the EACJ, then, such an international court will always be on the brink of being toothless and ineffective.

At the end of each reference, the EACJ delivers a judgment. It also issues interim orders carrying a status similar to that of a court judgment.⁵³ Member States as well as the Council are bound to implement EACJ judgments without delay.⁵⁴ But there are no established mechanisms to ensure compliance in the event that a state refuses to implement a decision against it. Since 2005 the EACJ has dealt with more than 190 matters. What is intriguing in those judgments is tracking the extent to which they have been met with compliance. Member States have not been sanctioned when they have failed to comply with the EACJ's decisions. It is a matter of fact and a matter of principle that the nature of EACJ judgments is declaratory, and this tends to attract noncompliance. The best the Court can offer is to declare violations of the law, give orders for injunctive relief, and award costs to the successful applicants.⁵⁵ The costs order depends on the nature of the case. Public interest cases do not attract costs orders.

The EACJ does not offer damages or compensation. Declining to award damages discourages litigants from the commercial sector. There is no excuse for EACJ to keep acknowledging its inability to award damages without doing anything about it. There is no provision in the Treaty explicitly permitting or not permitting the EACJ to award damages/compensation, but it has opted not to award any damages. In contrast, it awards damages in employment cases.⁵⁶

Perhaps it is too critical of the Court to say that it missed an opportunity in the process of adopting the new Protocol. The EACJ seem to be contented with its inability to award damages, and also with its lack of enforcement mechanisms. This critique is based particularly on the cases in which applicants genuinely sought damages. The Court sees such cases as not being tortious or contractual in nature, and hence does not award damages.⁵⁷ In the Sebalu case⁵⁸ the EACJ stated that:

The EACJ is a legitimate avenue through which to seek redress, even if all the Court does is to make declarations of illegality of the impugned acts, whether of commission or omission.

While the EACJ claims to be disabled from awarding damages, the EAC Treaty provides a means of executing a pecuniary judgment against an individual.⁵⁹ The provision assumes that the Court awards damages. If the Court imposes a pecuniary obligation, the judgment holder has to follow the laws of the civil procedure of the state where the execution is to take place. In essence, the Treaty does not provide the means of enforcing the Court's judgment when a state is in breach of the EAC Treaty. The Treaty does not recognise individuals (such as EAC employees) as offenders or as being respondent parties in a case. It is only states and EAC organs and institutions that qualify as such. The provision for enabling claims of pecuniary obligation against individuals in the EAC Treaty is therefore redundant.

Little is known about the extent of compliance with the EACJ's decisions. One could correctly characterize the EACJ's decisions as being academic. But the EACJ is essential for the survival of the EAC, and the efficiency of the EAC Treaty depends on the EACJ's effectiveness. Without effective enforcement mechanisms, the EACJ will have little impact on the Community. The challenges encountered when enforcing the decisions of the EACJ might be caused by problems that involve some of the most delicate aspects of international law: that is, states' ignorance in responding to international law.

The enforcement of a judgment of a court is an important stage in any litigation process. When a court judgment is enforced, that marks the end of a dispute. A dispute does not end merely with a court judgment. When a court judgment is finally executed, the execution saves the court from the embarrassment of having merely issued a written judgment. The successful execution of a judgment is the result that any litigant would seek and, in respect of the judgments that the EACJ has delivered so far, there has been only one complaint of non-compliance, which was in the Sebalu case described above. It is within the Office of the Secretary General that compliance with EACJ decisions should be tracked. In all fairness, the Office is seen to underperform in this respect. Admittedly it is very much occupied with the overall supervision of the wellbeing of the Community. Giving it the task of tracking compliance with EACJ judgments would be to overwhelm it with work.

Having most of the EACJ's judgment delivered in a declaratory form will certainly not induce Member States to fear noncompliance. That is why the EACJ is struggling to stamp its authority on the region.

So to sum up, it is on this basis that the need to critically examine the enforcement of judgments of EACJ arises, and consider the extent to which the court can ensure that its judgments are complied with in future.

1.3 Research questions.

- Which national authority is empowered to execute court's judgments?
- To what extent do EAC states voluntarily execute the EACJ judgments?
- What are available mechanisms to ensure compliance in the event that a state refuses to implement the Court’s judgment?
- How are the EACJ judgments executed?
- What are the mechanisms and procedures in place to sanction a party that fails to implement a judgment against it?

1.4 RESEARCH HYPOTHESIS

This research study is based on the hypothesis that the EACJ judgments are rarely voluntarily executed by member states due to lack of established mechanisms to follow it up.

1.5 OBJECTIVES OF THE STUDY

The researcher intends to analyze whether the judgments delivered by EACJ are enforced. If yes, the extent to which they are executed and the extent which do EAC member states voluntarily execute the EACJ judgments. To throw more light on the most controversial concepts related to this research study

This research intends to avail the Legal Enforcement and Application of EAC Law plus the position of jurisprudence thereon which will include the Jurisprudence from the EACJ on interpretation of the Treaty, EACJ Jurisprudence on the Rule of Law and Human Rights, Jurisprudence from National Courts on Enforcement and implementation of Community Law, Jurisprudence on Recognition and Enforcement of Foreign Judgments in EAC.

The researcher intends to expose the procedure through which the EACJ judgments are executed and the national authority is empowered to execute foreign court's judgments in Rwanda.

The present author intends to bring to the attention of the readers the available mechanisms to ensure compliance in the event that a state refuses to implement the Court’s judgment and the mechanisms and procedures in place to sanction a party that fails to implement a judgment against it?

1.6 RESEARCH METHODOLOGY

In order to clearly and exhaustively address the above legal questions and achieve the research objectives, the researcher will lean his work on different techniques of research. The documentary technique will be much used for collecting data from different written documents containing information relevant for this study. These documents include law texts, textbooks, journal articles, annual reports, newspapers, etc.

As far as methods of research are concerned, the analytic method will be used for analysis of different elements of data collected. The exegetic method will also be resorted to for the interpretation of the various relevant law texts. Finally, the synthetic method will help in regrouping the collected data in a coherent manner.

1.7 SCOPE OF THE STUDY

In this thesis the researcher will analyse the legal questions arising from the situations where judgments of sub regional courts such as SADC Tribunal, EACJ among others are pronounced but rarely executed. Emphasis will be put on EACJ. The researcher shall proceed to extent which do EAC states voluntarily execute the EACJ judgments

The researcher shall as said above discuss whether there are if any, the mechanisms and procedures in place to sanction a party that fails to implement a judgment against it?

Lastly, this thesis will avail the available mechanisms if any, to ensure compliance in the event that a state refuses to implement the Court’s judgment. This research will not lean too much on regional courts but will put emphasis around sub-regional courts.

1.8 STRUCTURE OF THE STUDY

Apart from the general introduction, this work will consist of three chapters; chapter 1 will address Legal Enforcement and Application of EAC Law plus the position of jurisprudence thereon which will encompass the evolving Jurisprudence from the EACJ on interpretation of the Treaty, Evolving EACJ Jurisprudence on the Rule of Law and Human Rights, Evolving Jurisprudence from National Courts on Enforcement and implementation of Community Law, Evolving Jurisprudence on Recognition and Enforcement of Foreign Judgments in EAC and a brief conclusion and recommendation on this.

Chapter 2 will discuss the binding nature of judgments of EACJ, comparative approach with similar courts in other jurisdictions i.e the SADC Tribunal and the researcher will throw a little more light on the cases of Mike Campbell V The Republic of Zimbabwe and Katabazi v the Secretary General of the EAC, respectively. In this section, the enforcement of the SADC Tribunal decision. Lastly, this study will terminate by a general conclusion which will recapitulate the major findings of the study and eventually formulate some personal recommendations.

[...]

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¹ Article 9(e) of the treaty establishing the EAC.

² EACJ retrieved at http://eacj.org/?page_id=19.TheinaugurationceremonyincludedtheswearinginofEACJJudgesandthefirstCourtRegistrar. Last visited on 14th January 2022.

³ Modern Holdings (EA) Limited v Kenya Ports Authority Ref No 1/2008 (11 February 2009); p. 32 and Alcon Intl Ltd v Standard Chartered Bank of Uganda Ref No 6/2010 (2 September 2013) p.41.

⁴ EALS v Attorney General of Burundi Ref No 1/2014 (15 May 2015); par 64, Democratic Party v Secretary General of the EAC Appeal No 1/2014 (28 July 2015) par 29; Tusiime v Attorney General of Uganda Ref No 11/2013 (7 August 2015) par 51; Rugumba v Attorney General of Rwanda Appeal No 1/2012 (21 June 2012) par 72.

⁵ Mohochi v Attorney General of Uganda Ref No 5/2011 (17 May 2013) p.36.

⁶ ANAW v Attorney General of Tanzania Appeal No 3/2010 (26 April 2012). For a general discussion of the case also see Gathii 2016 Chi J Int'l L 386-438.

⁷ Amudo v Secretary General of the EAC Appeal No 4/2014 (30 July 2015) par 64.

⁸ Anyang' Nyong'o v Attorney General of Kenya Ref No 1/2006 (29 March 2007) p. 18; Komu v Attorney General of Tanzania Ref No 7/2010 (26 September 2014) par 24.

⁹ The former EAC was established in 1967 and collapsed after ten years of existence.

¹⁰ The EACA could handle only appeals, on both civil and criminal matters, except for constitutional matters and the offence of treason for Tanzania.

¹¹ EAC 2016 http://www.eac.int/news-and-media/statements/20160415/communique-signing-ceremony-treaty-accession-republic-south-sudan-east-african-community. The admission of South Sudan into the EAC was questioned by the applicants in Walusumbi v Attorney General of Uganda Ref No 8/2013 (27 February 2015). The matter came about due to the norms established by art 3 of the East African Community Treaty (1999), which lay down criteria for a country to be considered eligible to join the EAC. It is highly doubtful that South Sudan satisfies the criteria listed.

¹² L. M. Yonas, The administration of Justice in East Africa: Reference to EACJ’s human rights jurisdiction, dissertation, University of Dar es salaam, July 2015, p.63. available at www.academia.edu accessed on 27th April 2022.

¹³ The EAC Treaty was signed on 30 November 1999 and entered into force on 7 July 2000. By then the Community had been established by the three original Member States - Kenya, Tanzania and Uganda. Burundi and Rwanda acceded to the EAC Treaty on 18 June 2007 and effectively joined the Community on 1 July 2007. South Sudan acceded to the Treaty on 15 April 2016 and become a full Member on 15 August 2016.

¹⁴ Art. 9(1) (f) of the EAC Treaty.

¹⁵ Art. 5 of the EAC Treaty.

¹⁶ Article 5(2) of the EAC Treaty.

¹⁷ The OAU was established on 25 May 1963 and was replaced by the AU on 9 July 2002, after the adoption of the Constitutive Act of the AU. For an overview of African regional integration initiatives, see Hailu 2014 Mizan L Rev 299-332.

¹⁸ After the establishment of the OAU, sub-regional groupings started to emerge. These include: the EAC (1967), the Economic Community of West African States (ECOWAS) (1975) and the Southern Africa Development Coordinating Conference (SADCC) (1980).

¹⁹ For example, see Murungi and Gallinetti 2010 SUR - Int'l J Hum Rts 119-143.

²⁰

²¹ Article 23 of EAC Treaty.

²² Ojienda 2004 EAJHRD 95.

²³ Article 3(1) of the Protocol to Operationalise the Extended Jurisdiction of the East African Court of Justice (2015) (the EACJ Protocol).

²⁴ Mwanza 2015 retrieved at https://www.tralac.org/discussions/article/7126-the-eac-court-s-jurisdiction-over-investment-matters-and-what-it-means-for-the-community-s-legal-instruments.html. Last visited on 21st January 2022.

²⁵ Article 2(a) of the Vienna Convention on the Law of Treaties (1969).

²⁶ EALS v Secretary General of the EAC Ref No 1/2011 (14 January 2013) 21-23.

²⁷ Art. 28

²⁸ Art.29

²⁹ Art. 30

³⁰ Art. 34

³¹ A. A. Cancado Trindade, “The Application of The Rule Of Exhaustion Of Local Remedies In Interna- Tional Law” (1983); Jost Delbrfuck, “The Exhaustion of Local Remedies Rule and the International Protection of Human Rights: A Plea for a Contextual Approach, in Des Menschen Recht Zwischen Freiheit Und Verantwortung 213, 217 (Jfirgen­Jekewitz et al. eds., 1989).

³² See AG of Rwanda v Plaxeda Rugumba (2012), para 39; Also see Anyang’ Nyong’o v AG of Kenya (Ref No. 1 of 2006), p. 21

³³ The East African Law Society v AG of Kenya

³⁴ Article 30(2) of the EAC Treaty

³⁵ Attorney General of Uganda v Omar Awadh Appeal No 2/2012 (15 April 2013) para 51.

³⁶ Ibid para 52

³⁷ For example, Mureithi Wa Nyambura v Attorney General of Uganda Ref No 11/2011 (24 February 2014) para 19 Ndayizamba v Attorney General of Burundi Ref No 3/2012 (28 March 2014) para 16, Ruhara v Attorney General of Burundi Ref No 4/2014 (7 August 2015). Para 21.

³⁸ IMLU v Attorney General of Kenya Ref No 3/2010 (29 June 2011); Appeal No 1/2011 (15 March 2012); Mureithi Wa Nyambura v Attorney General of Uganda Ref No 11/2011 (24 February 2014); Francois v Attorney General of Burundi Ref No 8/2011 (28 February 2014). 24

³⁹ Supra no 35, para 59.

⁴⁰ IMLU v Attorney General of Kenya Appeal No 1/2011 (15 March 2012) 16.

⁴¹ Ibid.

⁴² Ibid

⁴³ Ibid 9.

⁴⁴ Ibid 19.

⁴⁵ Ibid 16

⁴⁶ Rugumba v Attorney General of Rwanda Ref No 8/2010 (30 November 2011) 7.

⁴⁷ Ibid 11.

⁴⁸ Ibid 28.

⁴⁹ EALS v Attorney General of Kenya Ref No 3/2007 (31 August 2008) 18.

⁵⁰ Article 34 of the EAC Treaty.

⁵¹ See Okunda and Another v Republic (1970 ).

⁵² See for example comments by Brown, L. N. And Jacobs, F. G. (2000), “The Court of Justice of the European Communities,” 5th Edition, Sweet and Maxwell, London, 285

⁵³ Article 39 of the EAC Treaty.

⁵⁴ Article 38(3) of the EAC Treaty.

⁵⁵ Ndorimana v Attorney General of Burundi Ref No 2/2013 (28 November 2014).

⁵⁶ Amudo v Secretary General of the EAC Appeal No 4/2014 (30 July 2015).

⁵⁷ Kahoho v Secretary General of the EAC Appeal No 2/2013 (9 November 2015) para 83.

⁵⁸ Sebalu v Secretary General of the EAC Ref No 1/2010 (30 July 2011) 41.

⁵⁹ Article 44 of the EAC Treaty.