Friday, 6 July 2012

There is no need for expanding the ECJ’s jurisdiction


By Nicodemus M. Minde

The East African Court of Justice (ECJ) as it is presently constituted and with its stated jurisdictional reach sufficiently meets the East African Community’s (EAC) integration goals. The EAC envisions an integrated approach to regional development through widening and deepening economic, political, social and culture integration in order to improve the quality of life of the people of East Africa through increased competitiveness, value added production, trade and investments. The East African Court of Justice (the Court), is one of the organs of the East African Community established under Article 9 of the Treaty for the Establishment of the East African Community. The Court’s major responsibility is to ensure the adherence to law in the interpretation and application of and compliance with the EAC Treaty. Based on the EAC’s mission and vision of continuous regional integration on social-political and economic aspects, it is intriguing why there are calls for the Court to expand its jurisdictional reach.

Recently, the EAC Heads of States met in Arusha with a view of expanding the ECJ‘s jurisdiction to also deal with issues of Human Rights and Criminal jurisprudence. The East African Legislative Assembly (EALA) which is the de jure legislative organ of the EAC had also deliberated on expanding the jurisdiction of the Court to also touch on issues of Human Rights and criminal legislations. The drafters of the ECJ intended the Court to function as a regional judicial organ that deals with legal disputes arising from state parties and to ensure the adherence to law in the interpretation and application of and compliance with the EAC Treaty. The functions and duties of this Court can be compared to those of the UN International Court of Justice (ICJ). When the world saw that there was need to develop a permanent international criminal tribunal, they did not expand the jurisdiction of the ICJ but opted to hold an inclusive interstate plenary to draft the Rome Statute which gave rise to the International Criminal Court (ICC). 

The ICC is a criminal tribunal with universal jurisdiction and power to try and punish individuals for the most serious crimes of international concern. The attempts to expand the ECJ’s power to accommodate human rights and criminal legislations can only be interpreted as a political move and not legal as most of the EALA legislators and regional politicians would want us to believe. The pretext used to see the expansion of the ECJ’s jurisdiction is the Kenyan case at the ICC. 

There have been futile attempts to challenge the admissibility of the ICC regarding the Kenyan case. It started with the “shuttle diplomacy” by Kenya’s Vice President who went around lobbying for a deferral of the Kenyan case. The African Union (AU) is on a relentless drive to push for the same. What is astonishing is the lack of understanding and utter disregarding of certain international (criminal) law tenets by a cross-section of local and regional politicians. It is said that a drowning man will clutch at a straw. This is what seems to be happening with the recent quest by EALA legislators and EAC Heads of States to call for the expansion of the ECJ’s jurisdiction. The ICC, which all EAC partner states with the exception of Rwanda are parties to, should work towards promoting and cooperating with it. If there are truly genuine efforts to expand the jurisdiction of the ECJ, then it should be based on candid legal intentions and not misguided political motives.           

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