Integration: Create mechanism to address non-judicial disputes

Integration: Create mechanism  to address non-judicial disputes
A few years ago, I attended East African Community meetings, hosted by the EAC Secretariat as part of the Kenya delegation. One meeting sought to develop an action plan for preventing and combating corruption while the other was specialists from member countries to develop a draft protocol on good governance. During these meetings, participants lamented on the slow pace of progress, especially considering the subjects of discussion – anti-corruption and good governance – were issues that ordinarily one would not expect toil in finding points of convergence. It took us, for example, half a day to come up with a definition of good governance which was still not satisfactory to some member states. During one of the breaks, I called aside the Head of Delegation of one of the member states for a tete a tete. I had perceived that the bottlenecks in the debates had nothing to do with the discussions but were informed by other circumstances beyond the formal engagements. True to my suspicion, I was given a candid and interesting narrative on why this particular Member State was hesitant to have the EAC dream realised faster. The reasons were a cocktail of real to ostensible circumstances. Some were based on biased opinions formed from stereotypes, incorrect information that could not be verified or lessons learnt from previous engagements between member countries in their individual capacities. Some, however, were real circumstances containing truths that caused, perhaps rightly so, some unease. Nonetheless, it was factual that there were underlying fears and/or issues that threatened the whole idea of an EAC integration. It was due to these fears that this particular member country viewed the integration with scepticism and thus brought up blockages at every turn to build up to the intended objective of slowing down the integration process. The lesson here was that whether the qualms were justified or not, whether they were based on truism or perception, they had the real potential of nixing the EAC dream. They therefore were issues that somehow had to be brought to the fore and dealt with before they metamorphosed into a can of worms that would turn difficult to handle. As I thought about it, it dawned on me that there was no body or institution that had been established by the EAC to deal with such issues. The truth is, such matters, even if based on perceptions or biased opinions, have the potential of slowing down the economic and social integration of the East African Community or bringing it to a screeching halt. The question we should ask ourselves is, can such issues be matters that a State can freely discuss and lay their fears bare for all and sundry? And if so, are they matters that can be the basis of a dispute that would then be within the jurisdiction of the East African Court of Justice? Certainly not. The East African Court of Justice’s sole jurisdiction is to ensure adherence to law, in the interpretation and application of and compliance with the EAC treaty. It seems to me, therefore, that there was no lesson learnt from the collapse of the first EAC whose treaty was dissolved in 1977 because if there was, then there would have been a body in the present EAC established to deal with these non-legal matters that cannot be dealt with through litigation. One of the main reasons that contributed to the collapse of the first EAC was ‘‘disproportionate sharing of benefits of the Community among the Partner States due to their differences in their levels of development and lack of adequate policies to address this situation’’. Of course, there were other reasons such as lack of political will and non-participation of the private sector that contributed to the collapse. However, in my view, disputes arising out of the aforesaid reason largely contributed. The EAC Corporation is not something that can be avoided. Even before the establishment of the first EAC in 1967, economic and social integration of the region had commenced decades before. The construction of the Kenya Uganda railway between 1897-1901 was the first clear sign of integration. This was followed over the years with, among others, the establishment of the Customs Collection Centre 1900, the Postal Union 1905, the Joint Economic Council 1940 and the Court of Appeal for Eastern Africa 1909-which produced some of the best judicial pronouncements that are locus classicus. Social integration within the EAC is therefore unavoidable and with such integration comes pitfalls that do not have judicial remedies. To have the EAC court as the only treaty recognised avenue of solving disputes is ineffective, especially when you are looking forward to the ultimate goal of political integration. My hypothesis therefore is that the EAC as presently constituted, lacks a mechanism that can adequately deal with such disputes. The jurisdiction of the East African Court of Justice is squarely, as aforestated, limited to interpretation of the treaty. If the jurisdiction is to be extended, then every extension has to be determined by the Council and operationalised by a protocol which takes years to agree on content, draft and execute. This would mean that by the time the jurisdiction is extended it will more likely have been overtaken by events and therefore the mischief will not have been avoided. It is important for the EAC to realise that there are a category of issues and disputes that cannot be brought to the fore and have no legal remedy. This is because they are not legal disputes and therefore require somewhat informal mediation, negotiation or conciliation by a body other than the main organs of the EAC such as the Summit or Council which will in most cases be interested and partisan. I am talking about an independent and impartial body but one that draws its mandate from the treaty to deal with non-legal disputes or issues. Furthermore, administrative matters that occur in the institutions or bodies of the EAC lack an institution to redress them. These are matters to do with Administrative irregularities, abuse of power, lack of information, delay and generally administration gone wrong. Where does an EAC citizen seeking services from an EAC organ which are not forthcoming or experiencing abuse of power at the EAC secretariat or any other organ go to for redress? It is important to have a body or institution that can deal with such matters in a somewhat informal but expeditious manner so as to ease the corporation that is envisaged under the treaty. The European Union of 1992 established the European Ombudsman through the Maastricht Treaty to deal with complaints regarding maladministration. This provided European citizens with an avenue of redress of concerns relating to maladministration by institutions or bodies of the European Union such as the European Central Bank, the Council of the European Union and the European Court of Justice (except in its judicial role). Under the East African Community treaty, it is noticeable that mechanisms for redress of matters other than those that attract judicial intervention is lacking. The summit, council or the secretariat do not have such jurisdiction and even if they did, they would not be properly placed to deal with the same. The irony is that had there been such a mechanism in the precursor institution it may never have come to the disgrace of 1977 when it collapsed. We created another Community and once again it failed to provide for this all important institution that would apart from the above, also deal with disputes between one EAC organ and another. Lack of such an institution therefore causes matters whose resolution would ease corporation between member states, to balloon into a crisis that then becomes difficult to resolve. The recent talks for example, on whether an oil pipeline should go to Tanga or Lamu is such an issue that would have been best resolved through such a body if one existed. The existence of a neutral party in the talks, recognised by all member states, would instil confidence, trust and candidness, than if that were to be left to the protagonists and interested parties to put forth their positions and then be expected to agree. I do not want to spell doom. I am a firm believer of the EAC dream. But I am afraid that if we do not as a address this issue now and provide these all important platform of redress, we will be unable to deal with the issues that would have by then smouldered to an irreconcilable state.

Writer is an Advocate of the High Court of Kenya

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