East Africa Law Society
Enhancing Professional Standards In the Delivery Of Legal Services, And Promoting Constitutionalism,
Democracy, Good Governance, The Just Rule of Law, and the Advancement, Promotion and Protection of all
Human Rights, By Supporting Regional Integration For The Benefit of the Peoples of East Africa.
COLLOQUIUM ON THE PROPOSED AMENDMENTS TO THE
TREATY FOR THE ESTABLISHMENT OF THE EAST AFRICAN
16TH – 17TH MAY 2006
The Colloquium was convened by the East Africa Law Society (EALS) to bring together
academics and legal practitioners from the region to discuss the intended amendments to the
East African Treaty following the 4th Extra - Ordinary Summit of the East African Community
Heads of State held in December 2006. The said amendments were to Articles 1, 23, 24, 26 and
35 of the East African Community Treaty (hereinafter referred to as the EAC Treaty).
The EALS felt that the amendments went against the letter and spirit of the treaty as well as the
principles therein and were detrimental to the regional integration process (considering the
pitfalls that befell the first, now defunct, East African Community). The EALS also felt that the
proposed amendments were in breach of the partner states obligations to the treaty under
The EALS sought the views of the expert legal practitioners and academics (eminent legal
thinkers) with the view to applying these opinions and input towards a legal challenge against the
proposed amendments before the East African Court of Justice (EACJ).
The colloquium began with opening remarks from the President of the East Africa Law Society,
Mr. Tom Ojienda. The President noted that the amendments posited serious adverse
implications against the fundamental values that the Community rests upon. Further, he noted
that the proposed amendments went against the time tested tenets of judicial independence,
separation of powers, the rule of law, democracy, constitutionalism, good governance and people
centered regional integration. He noted that the general upshot of the amendments was the
creation of a two tier Court and the provision for the removal of judges from office on ‘all
possible reasons for removal other than those provided in the treaty’.
The President reaffirmed the duty of the members of the colloquium by stating that the legal
profession and academia in East Africa have a duty to play in so far as the attainment of the
Treaty objectives is concerned. He added that:
“We must be the beacons of light that shine and dispel the dark that has seemingly begun to
grope the Community.”1
The President urged the colloquium participants to be at the forefront in preventing the
Community from repeating the mistakes that saw the collapse of the first East African
Community in 1977. Borrowing from a paper by the CEO of the EALS, Mr. Don Deya titled
‘An Institutional Analysis of the East African Community: Some Initial Reflections’, the
President stated that the key lesson from the collapse of the first EAC is that regional
integration, as indeed every other human developmental endeavor, must be firmly rooted in the
people (the citizens).The people must want it, own it, design it, monitor and evaluate it, and
redesign it or reform it. In all these challenges, the legal profession and academia must be at the
forefront in keeping with its aforementioned duty and calling.
Ojienda T.O ‘Opening address to the Colloquium of Eminent Legal Thinkers and Practitioners’. May 2007,
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Summary of Recent Developments at the East African Community (EAC)
The Colloquium chair, Professor Chris Maina Peter, called upon the Chief Executive Officer of
the EALS, Mr. Don Deya to provide the colloquium participants with a summary of recent
developments at the EAC.
Mr. Deya made a presentation commencing with an analytical history of the development of the
EAC, in five (5) phases, from its initial conception in the late 19th century until modern times
comparing the institutional outlay of the first community, which collapsed in 1977, with the
second one, which was revived in the 1990’s, and concluding with some proposals for the
institutional strengthening and reform.
The presentation was a condensation of a Research Paper to be published by the Society for
International Development (SID).
The colloquium participants were urged to pay particular attention to the challenges that faced
the first EAC and the reasons for its collapse and try to discern any parallels in respect of which
the legal fraternity in East Africa can make interventions to avoid a repeat of the same. Mr.
Deya’s presentation provided the colloquium with a glimpse at the said challenges and reasons
for collapse of the first EAC including:
A lack of strong political leadership to successfully steer the integration process.
Disagreements over benefits of jointly owned common services particularly the inability
to resolve unequal benefits which were a manifestation of the lack of political will to see
the integration process through.
Political differences and ideological disparities.
The military coup in Uganda.
The lack of strong private sector and civil society participation.
Poor institutional ethos which had its origins in the colonial era and is not necessarily a
manifestation of the will of the peoples of East Africa.
Mr. Deya went on to provide a list of the present challenges facing the second EAC integration
process in respect of which the colloquium participants were invited to provide views and
suggest interventions and possible remedies. The challenges listed included:
Schizophrenic responses by the Government of Kenya to the rulings of the East African
Court of Justice (EACJ).
Treaty Amendments. Reservations on the Process and Content of these amendments
were highlighted and the colloquium participants expressed the same sentiments.
The current impasse on the election/ nomination of members of the East African
Legislative Assembly (EALA).
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The presentation was followed by a lively deliberations with contributions from the floor most
of which concurred with the historical reflections on the integration process and there were
repeated calls for increased civil society participation and intervention so as to ensure that the
second EAC is not fractured as was the first. Panelists concurred that the present colloquium
was evidence of improved civil society participation and the trend should continue in order to
ensure the success of the regional integration process.
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The Content of the Proposed Amendments
At this juncture, the Colloquium chair invited Ms. Roseline Odede, an Advocate of the High
Court of Kenya, former Council member of the East Africa Law Society (EALS) and present
Council member of the Law Society of Kenya (LSK) to share her reflections on the background,
content and legal effects of the proposed amendments to the EAC treaty which were the main
concerns of the colloquium.
According to Ms Odede, the background of the intended amendments is predicated upon the
injunction issued by the EACJ against Kenya’s flawed election of legislators to sit at the East
African Legislative Assembly (EALA) contrary to Article 50(1) of the EAC Treaty. Also, the
procedures for making amendments to the EAC Treaty are set out under Article 150 of the
The breakdown began with an analysis of the proposed amendment to article 23 of the EAC
Treaty. The simple provision of article 23 with regard to the EACJ is that the Court shall be a
judicial body which shall ensure adherence to law in the interpretation, application and
compliance with the EAC Treaty. The proposed amendment proposes new sub-sections which
create two divisions of the court – a Court of First Instance (CFI) and an Appellate Division.
The presenter’s analysis, with which the floor concurred, was that the creation of an appellate
chamber at this stage of the evolution of the Community institutions was premature and suspect
considering the litigation before the Court which ran concurrent with the proposed amendments
and the outcome of which was adverse to the political interests of the Summit.
On the amendment to Article 24(1) which originally provides that each state can only nominate 2
judges to the EACJ and which the amendment proposes that each state can nominate 2 Judges
to the CFI and one (1) judge to the appellate chamber, the learned Council member opined that
creating an appellate chamber with only five members on the bench was insufficient for the
competent hearing and determination of substantive appeals.
Article 26 (1) concerns Removal from Office and Temporary Membership of the Court. It
provides that only the Summit can remove a Judge, and only for misconduct or inability to
perform the functions of office due to infirmity of mind or body, and only after an independent
ad hoc Tribunal has so recommended.
The proposed amendment seeks to enable the Summit to remove an EACJ Judge if among other
reasons the said judge ‘also holds judicial or other public office in a Partner State, and is removed
from that national office for misconduct or due to inability to perform the functions of the
office for any reason, OR even resigns due to the above allegations. In addition, the amendment
would allow the removal to be conducted without recourse to any independent tribunal.
The presenter viewed this new proviso with trepidation and suspected that it was predicated on
the circumstances surrounding the much criticized ‘radical surgery’ on the Judiciary in Kenya in
2003 (which has been considered in the court of public opinion to have failed the due process
expectations required by international law and the rules of natural justice).
It appeared to the colloquium participants that the proposed amendment to this section is
designed specifically to deal with Kenyan judges sitting on the EACJ bench who faced
allegations of corruption during the said radical surgery on the judiciary in Kenya and who the
summit perceives to be hostile to it, particularly to the Kenyan executive.
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The amendment which seeks to create an avenue for the appointment of Temporary Judges is
similar to the situation in Kenya after the surgery where ‘acting judges’ were appointed. The
colloquium participants agreed that just as there is no place in law for an acting judge, is it equally
unlawful, perfidious and contrary to the principles of the EAC Treaty to create the position of a
‘Temporary Judge’. It was further agreed that the new proviso to create the position of
temporary judge should be resisted as it interferes with the administration of justice and the rule
Article 27 concerns the Jurisdiction of the Court. The Treaty, as it stands, vests in the EACJ, the
jurisdiction over the interpretation and application of the Treaty and envisages the Court
eventually having original, appellate, human rights and other jurisdiction as may be determined
by the Council and set out in a protocol to the Treaty.
The proposed amendment to the treaty would add a proviso that the Court’s interpretation
jurisdiction shall NOT include “the application to jurisdiction conferred by the Treaty on organs
of Partner States.” The effect of such an amendment is that where the Treaty confers jurisdiction
to interpret, apply, ensure compliance with or enforce the Treaty on both the EACJ as well as an
organ of a Partner State, the interpretation of the Partner State shall prevail. This, according to
the learned Council Member serves to reduce the jurisdiction of the EACJ and radiates the
intention of the Summit to ‘contain’ the EACJ.
Article 30 of the Treaty allows all natural and legal persons in East Africa to use the EACJ to
challenge the legality of any Act, Regulation, Directive, Decision or Action of an EAC institution
or Partner State. The proposed amendment to this article suggests the addition of two provisos
which state that:
• Proceedings by natural persons shall only be successful if instituted within the first 2
months of the action complained of and that;
• The EACJ cannot determine matters that the Treaty reserves to partner states.
The first proviso is effectively an affront to the right of the peoples of East Africa to have access
to justice. The limitation period of two months would be absurd as it constitutes a third of the
limitation period prescribed at the national level (6 months). Such disregard for the spirit of the
Treaty should be frowned upon.
Article 140 of the EAC Treaty concerns transitional provisions. The article provides that EACJ
judges would serve on an ad hoc basis until the Council determines otherwise and indeed, the
judges still serve on an ad hoc basis. The proposed amendment to this section seeks to add two
provisos to provide that:
• Any judgment or order made by the EACJ to date be regarded as made by the Court of
First Instance and that;
• The current EACJ judges are deemed Judges of the proposed Court of First Instance,
and are merely eligible for appointment to the proposed Appellate Division.
The effect of these amendments is that the EACJ decision in Reference No 1 of 2006 can now
be challenged and the proposed amendments are clearly designed to frustrate the litigants in the
Ms. Odede’s sentiments, with which the participants at the colloquium concurred, was that there
was mischief in most of the proposed amendments and that members of the bar and legal
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academia in the Community as represented by the East Africa Law Society, should vociferously
resist the said amendments and litigate against them both on the basis of their content and the
process by which the Summit seeks to codify them
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Restatement of the Law and Practice of Ratification of International
Treaties in East Africa
At this juncture, leading academics from various law faculties in the East African universities
were called upon to highlight the process for ratification of international agreements in their
various partner states to aid the colloquium’s understanding of the specific manner in which
international treaties are domesticated into the national law of each partner state. The twin
purpose of this session was to provide the colloquium with the necessary ammunition, if any, to
challenge the content and process of the proposed mischievous amendments. Additionally, the
session was designed to generate advice for Community citizens and Partner States’ governments
on how best to treat the current – and any future- Treaty negotiation and amendment processes.
The session began with Dr Henry Kibet Mutai of the Faculty of Law at Moi University in Kenya.
His presentation emphasized that under international law each state had the discretion to decide
for itself how to domesticate international treaties.
Dr. Mutai reminded the colloquium of the two schools of thought (Dualism and Monism) that
exist with regard to their interpretation of the relationship between international treaties and
Dualism, as promulgated by positivists, envisages international law and national law as two
distinct legal orders and thus international law only applies in a nation state once that nation state
has acceded to and ratified the relevant treaty.
Monist thinkers on the other hand, as represented by scholars such as Hans Kelsen, take the
view take the view that international law should automatically apply in national courts and be
superior to national law without the necessity for a separate process of domestication.
Dr Mutai then proceeded to highlight the system for domestication of international treaties in
Kenya. He told the colloquium that there was no formal policy for the domestication of
international law in Kenya and the Constitution of Kenya does not directly refer to the same.
Section 30 of the Constitution simply vests in Parliament legislative powers but does not address
the specific way that those powers are to be exercised with regard to international obligations.
In practice, however, an informal ‘system’ has developed where the Cabinet takes responsibility
for the ratification of treaties. The Cabinet Minister under whose docket the subject matter of
the treaty falls seeks the authorization of Cabinet via a memorandum explaining why he or she
feels that the treaty should be ratified.
The Memorandum requests the Ministry of Foreign Affairs to consent to be bound by the
obligations of the Treaty. The Attorney General appends his signature to the consent which is
forwarded to the Secretary to the Cabinet who presents it for final cabinet approval. Following
the said cabinet approval, the Minister for Foreign Affairs and the Attorney General can go
ahead and deposit the treaty ratification instruments with the relevant international body. This
process does not involve Parliament at any stage.
With regard to the East African Community Act of Kenya (2000), which domesticated the EAC
treaty into domestic law, Parliament was involved but was not obliged to be involved at any
Dr Mutai opined that because international law leaves nation states with the discretion to decide
how to adopt a treaty or a treaty amendment, there is no violation of international law when such
a treaty is amended or ratified without the participation of Parliament.
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However, this is an unsatisfactory state of affairs worsened by the fact that Kenya does not even
possess an official treaty register where one can access an official list of the treaties that Kenya
At this stage, Dr. Khoti Kamanga of the Faculty of Law at the University of Dar es Salaam and
the Coordinator of the Centre for the Study of Forced Migration (CFSM) took the colloquium through
the process for the domestication of international treaties in Tanzania.
Dr. Kamanga referred to Section 63 (3) (d) and (e) of Tanzania’s constitution as the guiding legal
provision for the domestication of international treaties there. There is a two tier system in
Tanzania in which Parliament has a role to play in two instances:
• At the first instance, Parliament makes an accession resolution, the effect of which is to
state the country’s acceptance of the obligations of the treaty and to be bound by the
• At the second instance, Parliament makes a ratification resolution which authorizes the
government officers to go ahead and deposit the treaty ratification instruments and for
Parliament to adopt the treaty domestication enabling legislation.
Thus, the process in Tanzania is largely determined by the legislature. It is slow, laborious and
could take anything from weeks, months to years. Also, domestication of international treaties in
Tanzania is selective and often in-exhaustive. For example, the legislation in Tanzania which
domesticates the Rome Statute establishing the International Criminal Court (ICC) is merely in
the form of an appendage to an already existing Act of Parliament.
Dr Kamanga proceeded to cite various challenges facing the Community with regard to
domestication, implementation, and amendment, etc. He was of the opinion that the provisions
of the treaty are very clear and that the proposed amendments are in gross violation of Article
150 of the Treaty, particularly sub articles (4) and (5) which demand that for any amendments to
be made to the treaty, a proposal for amendment must be made by a Partner State or the Council
to the Secretary General who shall communicate the proposal to the partner states within 30
Partner states which seek to comment on the proposals must do so within 90 days of the
dispatch of the proposals for amendment by the Secretary General.
Article 150 (5) States that:
The effect of this is that the prescribed 90 days must expire before the Secretary General can
submit the amendment proposals with comments to the Summit (through the Council). This
procedure was clearly flouted in the recent proposed amendments and Article 150 should be a
basis for the challenge to the proposed amendments.
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Dr. Kamanga pointed out that future amendments to the treaty should come out and deal with
the issue of conflict between Community law and municipal law. The treaty ratification process
must also be examined both at the national and Community levels.
Thereafter, Dr Henry Onoria of the Faculty of Law at Makerere University in Uganda provided
an overview of the process for the ratification of international treaties in Uganda. Ratification, in
Uganda, is always looked at from an international perspective. The Constitution attempts to
address treaty making at Article 123 which grants treaty accession powers to the Presidency.
Article 123 (3) requires Parliament to make legislation for ratification and domestication of an
international treaty. The 1995 Constitution gave the treaty ratification powers to Parliament.
The Ratification of treaties Act CAP 204 of the Laws of Uganda clarifies the treaty making
process. Section 2 indicates that international treaties must be ratified by Cabinet save those
which may require parliamentary approval.
These include treaties relating to armistice, peace and treaties subject to which the Attorney
General expressly indicates the necessity of parliamentary approval. Those treaties that require
parliamentary approval are those which are critical to the internal and external operations of the
In practice, however, the role of Parliament, when it comes to treaty ratification, is one of mere
formality. Indeed, a look at the Ugandan Parliamentary Hansard revealed a complete lack of
debate when it came to the ratification of the Rome Statute of 1998.
Emerging Perspectives on the Process, Content and Implications of the
Treaty Amendment Process: Results of the Deliberations of Working
The second day’s colloquium deliberations began with three (3) working groups which were
constituted to analyze in greater detail and report on the process, content and implications of the
treaty amendment process. The deliberations resulted in the following views and
Working Group Tasks and Deliberations
The following questions were put to the working groups to guide their deliberations and output.
Were the amendments to the Treaty necessary? And were they done properly and in
accordance with the law?
Were the national ratification processes properly done?
How should we, as lawyers, respond to this? What are the main points to raise?
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Do the current amendments undermine the integrity of the East African Court of
Do they undermine the integrity of the East African Community and the whole spirit of
How should we, as lawyers, respond to this? What are the main points to raise?
The implications, and the way forward.
What will be the effect of the current amendments? In the short term? In the long term?
In the current scenario, what should the EALS do?
What should other stakeholders such as academia, the Bar and the Bench, at the national
What role can the legal profession play in dissemination regarding the EAC?
The outputs of the deliberations were as follows:
Working Group One (1): Process
Although amendments are theoretically acceptable, the current ones were not necessary, not
needed at this time and not in the interest of East Africans. Moreover, they were not ratified in
accordance with the process established by law. In particular, they didn’t comply with article 150
of the Treaty. As such, the amendments were submitted for ratification to the Partner States
before the expiration of the 90-days delay, thus making the process unlawful.
Moreover, the law of Kenya, which establishes the amendment ratifying process, was not
respected. In that regard, they did not ratify on the purported date indicated in the Kenya
Gazette Supplement Number 28 (Legal Notice Number 20 of 2007).
However, the law in Tanzania was duly followed. Also, it is extremely difficult, if not impossible,
to determine whether the Ugandan ratification process was done in accordance with the law.
Considering the above, we suggest the following recommendations:
• There is a need for periodic review of the Treaty, without any political interference,
which review should include mechanisms that will make the participation of the citizens
of East Africa compulsory.
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• The EALS and the constituent National Bar Associations should take the initiative to
propose the mechanisms for review.
• The EALS shall challenge said amendments in Court, altogether with proper
mobilization of the population and sister organizations.
• The EALS should call upon the Secretariat of the EAC to publicize and disseminate the
activities of the EAC and its organs.
• The EALS should express concern to what appears to be an emerging trend for political
leaders to disregard the rule of law, including arrogance displayed in the flouting of Court
Working Group Two (2): Content
The current amendments undermine the independence of the Court and the Security of Tenure
of its judges. As such, the history of the amendments evidence mischief and intend to render the
For example, in regard of the independence of the Court, article 26(2), (A), regarding the
appointment of temporary judges, does not touch on role and powers, qualifications and
investigation process. Also, with regard to article 24(a), concerning the creation of an Appellate
Division, we should ask ourselves whether the amendment will have a retroactive effect and
whether it was created in bad faith.
In respect of the security of tenure, article 24(b)(2), regarding the varying terms of office, sets
unclear principles for the transition of judges, without instituting a system that gives quality
assurance and predictability, and which ensures gender balance and national representation. Also,
we notice, at articles 24(a) and (b), multiple disciplinary processes. Finally, we recognize the
violation of the principle of separation of powers, the Summit having the power to appoint and
Therefore, we make the following recommendations:
• Regarding appointments, there should be a clear structure based on a merit system, in
which Partner States nominate judges in accordance to objective criteria and in
consideration of the function of the EACJ;
• Regarding such nominations, the regional assembly should have the final say, allowing
competition and ensuring that selected candidates meet qualifications and conform to
• The spirit of amendments should conform to the letter and spirit of the objectives of the
Treaty. As such, any amendments must be proven to enhance these objectives (articles 5
In that regard, the amendments are sowing seeds of disintegration by bringing otherwise national
matters before the Community institutions. As such, the article 30(3) limits the jurisdiction of the
Court, which does not conform to the said objectives of the Community.
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Also, in regard with amendments being drafted without consideration of policy or on an ad hoc
basis, we recommend that the Summit establishes policy to form benchmarks for future
Finally, the separation of powers, stated at articles 9(1) and (4), was disregarded by having the
Summit controlling the Court. We could say the same regarding the rule of law and democracy
The current amendments are unacceptable to the East African lawyers. Therefore, we should
proceed as follows:
• Champion institutional framework reform to guarantee efficiency of the organs and
guard against any such future amendments;
• Dialogue and lobby at national and regional levels against the amendments;
• Litigate, as a last resort, at national and regional levels;
• Challenge the domestication process in the Partner States;
• Consider the possibility of going further, for instance at the International Court of Justice
(ICJ) of at the African Court and African Commission.
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Working Group Three (3): Implications
i. Short-term effects:
• Creation of a two-tier system
• Security of tenure of judges undermined
• Limitations of jurisdiction of the EACJ
• Paralysis of the Court due to lack of quorum
• Paralysis due to possible failure to appoint judges, which could lead to denial of
ii. Long-term effect:
• Partner States may be emboldened to make similarly doubtful amendments
• Possible enhancement of legitimacy
Options available to EALS:
• File a petition, but consult widely among members first.
• Engage media.
• Hold an annual conference on the EAC.
• Make a comprehensive study on the EAC.
• Engage with the public, probably by the way of an outreach program.
• Engage with CBA and IBA.
• Engage with key legislators.
Other stakeholder options:
I. The Academia
• Critique and comment
• Teach EAC law
• Publications by teachers and students
• Comparative law of EA States
• Exchange programs for staff and students
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II. The Bar
• Engage with government
• Enlist support/ resources for petition.
• Dissemination of information regarding EAC.
• CLE on EAC, both internally and externally.
III. The Bench
• Presentations/ outreach
• Sharing of material
• Abstain from sitting on the EACJ
• Disseminate material in various languages
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• The EALS Secretariat should develop action points and a plan of action for itself and the
National Bar Associations, as to implement the recommendations of the Colloquium
• There’s a need for political activism. The Communiqué that will emerge from the present
Colloquium should be transmitted to the AG’s of the Partner States. The presentation of
this Communiqué should be on different dates for each country, so as to increase
• Adjudication at national levels should be harmonized, i.e. the Bar Associations should
adopt similar approaches and common understanding.
• Distinguish matters to be released for public consumption and those for the Court
• There should clarity on what the consultation process should involve.
These suggestions, together with the presentations and working group output guided the
Colloquium chair together with the rapporteur and members of the EALS secretariat to draft a
Communiqué which was unanimously adopted by the colloquium.
Participants at the colloquium felt that the member states should harmonize the system for the
domestication of international treaties in order for clarity to prevail at the level of EAC
interaction with principles of international law even though there are different schools of
international legal thought with regard to the relationship between municipal law and
In this respect, colloquium participants expressed the desire for a system where the parliaments
of the Partner States were responsible for treaty ratification through express legislation.
Participants also desirous of some kind of EAC level consultation on the ratification of
Participants opined that East African lawyers should participate more in international institutions
and in guiding government on the ratification of international treaties. In addition, a system of
treaty lists should be adopted by the Partner States.
There should be consideration that future Partner States, Rwanda and Burundi practice a civil
law system whereas current partner states practice the common law system. As such, there
should be close collaboration to share treaty making and treaty adoption practices across the two
systems. An example was given of Rwanda where international treaties, once acceded to by
Parliament, are considered to be superior to domestic law.
Participants expressed their alarm at the derogation, as encapsulated by the proposed
amendments, by East African politicians from the letter and spirit of the Treaty. It was felt that
the political elite should be reminded that the principles of the Treaty were expressed the will of
the people and any derogation thereof should be in the interest of the people, who must be
consulted, and not merely for the interests of the political elite.
Participants were desirous of a clear process to ensure that the views of the citizens of the
Community are taken into account before any amendments can be made.
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Participants also endorsed and supported the intended litigation by the EALS before the EACJ
and only added that when the Communiqué is presented to the EAC and the Treaty Reference
filed at the EACJ, there should be a simultaneous presentation of petitions by the national law
societies of the Partner States to the Attorneys General’ of each Partner State.
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The Communiqué read as follows:
To the Partner States and Citizens of the East African Community.
We, legal scholars and practitioners from Burundi, Kenya, Rwanda, Tanzania and Uganda,
having met in Arusha, Tanzania, at a Colloquium on the Proposed Amendments to the Treaty
for the Establishment of the East African Community on the 16th and 17th of May 2007:
Concerned by the recent proposed amendments to the Treaty for the Establishment of the East
African Community (hereinafter the “Treaty”) touching particularly on the composition and
jurisdiction of the East African Court of Justice (hereinafter the “EACJ”);
Mindful of the need to maintain the independence of the Community’s judiciary and to protect
it from external interference;
Reaffirming the commitments in the Treaty to maintaining the rule of law in East Africa;
Appreciating the need for an independent Community judiciary as a fundamental ingredient of
the maintenance of the rule of law in East Africa;
Recalling the pitfalls that beset the former East African Community thus rendering it defunct,
which pitfalls included the lack of participation of civil society in ensuring the independence and
viability of Community institutions;
Realizing that a strong and independent EACJ is crucial to the success of the regional
integration process and the attainment of the objectives of the community;
Dedicated to the professional duty of lawyers in the Community to educate the public on and
preserve democracy and the rule of law both in Partner States and in the Community as a whole;
State as follows:
That the proposed amendments to the Treaty are prejudicial to the independence of the EACJ
and will stifle its effectiveness in the fair and impartial administration of justice in the
That the proposed amendments are not in good faith and appear to be a response to the
decision of the EACJ in the Reference filed regarding Kenya’s nominees to the second East
African Legislative Assembly (hereinafter the “EALA”), in contravention of Article 50 (1) of the
Treaty, and designed to ensure that the executive arms of the East African Community will
always carry the day should litigation adverse to their interests arise before ‘the Court’;
That the proposed amendments to Article 26(1) of the Treaty introducing a new proviso for the
removal of judges appear to be predicated on circumstances surrounding the ‘radical surgery’ to
the Kenyan judiciary in the year 2003 and designed to intimidate members of the EACJ bench
affected by the said flawed surgery and in so doing undermine their independence;
That the amendments to Article 23 of the Treaty seeking to create an appellate chamber at the
EACJ, although laudable in principle, are insufficient unless accompanied by safeguards to
ensure that the proposed appellate chamber is constituted with independent judicial officers;
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That the proposed amendments to article 27 of the Treaty appear designed to limit the
independence and jurisdiction of the EACJ;
That the proposed amendments to Article 30 of the Treaty and the limitation of the period
within which citizens of East Africa can file actions in the Court appears designed to limit
challenges against Partner States for infringement of the Treaty thereby denying East African
citizens access to justice;
That the proposed amendments to Article 27 of the Treaty subordinate the EACJ to national
institutions and so severely reduce its jurisdiction, that it is unable to interpret or ensure
compliance to the law by any organ of the Community;
That the proposed amendments to Article 140 of the Treaty appear to have been designed to
intimidate the litigants in the landmark case of Peter Anyang’ Nyong’o and 10 Others versus The
Attorney General of the Republic of Kenya and Others (EACJ Reference No 1 of 2006);
In the premises, participants at this Colloquium commit themselves to continue dialogue, in
their spheres of operation, on the said proposed amendments and further approve and applaud
the decision of the Councils of the East Africa Law Society, Law Society of Kenya, Tanganyika
Law Society, Uganda Law Society and the Zanzibar Law Society to question the said
amendments to Treaty, in keeping with their mandate to preserve and protect the rule of law in
Request the Partner States not to domesticate the said amendments as they are bad in law and
thereby allow the Summit to revisit the decision to amend the Treaty so as to do away with all
provisions considered not to be in the interest of Community.
Dated this 17th Day of May 2007 at Arusha
Tom O. Ojienda,
President - East Africa Law Society
On behalf of the participants of the Colloquium
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Roundtable on Collaboration between Academia and the Practicing Bar in
This session was designed to generate ideas on avenues for conjunction between the legal
academia and practicing bar in Kenya to aid both the EAC integration process and to advance
Participants suggested various ways in which the two sections of the legal fraternity can
successfully cooperate. It was suggested that the academia’s core functions of teaching, research,
publishing and consultancy can be supplemented by an additional role for the academia as a
policy pressure group on specific legal issues.
Another way in which the academia can assist is by offering its services to Continuing Legal
Education (CLE) programs in international law within the framework of East African
It was also suggested that Bar associations offer teaching opportunities and services. They can
assist and collaborate with the academia in the areas of legal aid. Dissemination of EACJ
jurisprudence is another area where the East African legal academia can play an active role.
Other suggested ways to collaborate include:
Legal aid schemes: Legal issues and cases can be taken up and prosecuted by Advocates
who can then seek the assistance of the academia with regard to research which can be
conducted by academic staff and their students. In this way, both the academia and the
bar can feed into the process of litigation and generation of Community jurisprudence.
Members of the Bar can be called upon by the legal academia to teach the latter’s
students in order for law students to be inculcated with practical knowledge from
Formulation and implementation of Street Law Programs and the joint participation of
the East African Bar, Bench and Academia in Trade Fares
• Production of further sub-regional legal publications.
• Factoring in practicing members of the bar to sit in the Councils of Universities and
Boards of Law Faculties in the Community institutions of higher learning.
At this juncture, Prof. Kulundu-Bitonye, the Principal of the Kenya School of Law (KSL) and
the Secretary to the Council of Legal Education of Kenya was called upon to highlight the role
of the KSL and convey possible avenues for conjunction between the institution and the
practicing bar with regard to the subject matter of the colloquium and in general.
Prof. Kulundu explained the role of the KSL in the training of Advocates of the High Court of
Kenya. He added that the KSL was responding to an outcry for it to play a further, more
proactive role in enriching the legal fraternity by spearheading professional legal development.
He cited the possibility of East African integration matters and EAC Law being included in these
efforts in the future. This indeed, would be an effective avenue for collaboration between the
legal academia and the Bar to aid both the EAC integration process and to advance Community
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Prof Kulundu suggested specific methods to effect the above. These included:
• Workshops composed of members of the bar, bench and academia to deliberate on the
legal issues relating to EAC integration.
• Short courses for magistrates on international law including human rights law and EAC
• Lectures, in the future, to KSL students by lawyers who have practiced EAC law. It was
suggested that this should cross-cut the East African region as a whole.
It was suggested by other colloquium participants that when members of the bar take up public
interest litigation, they should link up with academia to conduct research to support the said
It was also suggested that guest lectures from academia to bar and vice versa should become a
norm in the region. Furthermore, the academia is in a good position to influence public opinion.
This should be tapped to enhance the synergy between the legal academia and the bar.
Colloquium participants opined that there is a need to create synergy between the faculties of law
in East Africa through joint programs and activities.
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Closing remarks and Conclusions
The closing remarks were given by Prof. Edward Frederick Ssempebwa, former President of the
EALS and the Uganda Law Society. He emphasized the necessity for collaboration between the
legal academia and practicing bar in Kenya to aid both the EAC integration process and to
advance Community jurisprudence.
Prof Ssempebwa remarked that collaboration was required to ensure the harmonization of
standards throughout the community the objective of which is expressed in Article 126 of the
EAC Treaty which states that:
Thus, partner states have an obligation under the EAC Treaty to harmonize legal training and
practice. It was further emphasized that collaboration is important because academic legal
research will enrich the litigation of practitioners and the experience of practitioners will enrich
the knowledge of academics. Hence, collaboration yields a win-win situation.
It was also noted that the lack of academic research in litigation is part of the reason for poor
judgments which fail to generate serious jurisprudence. It was on this note that the colloquium
was closed after the requisite vote of thanks from the EALS Secretariat and the Colloquium
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