REGIONAL ORGANIZATIONS IN AFRICA

1. EAC
2. ECOWAS
3. SADC
4. IGAD
5. COMESA
6. Economic community for central African states
7. The community of SAHEL Saharan states
8. The European Union

EU created by the treaty of Rome of 1957. Also, there is the Maastricht treaty. Countries are
the BENELUX.

Reasons for regional communities.

1. Economic growth. Customs union. I. Elimination of tariffs and nontariff barriers.

Article 5(2) and 75 of the eac treaty and the common market protocol. Enhances trade
and flow of goods. Ii. The common market is established by article 5 and article 76 of
EAC treaty. These are the pillars of economic growth. Iii. Monetary union. Article 5
of treaty. Monetary union protocol 2015.

HISTORY OF THE EUROEAN UNION

Pioneers

From resistance fighters to lawyers and parliamentarians, the EU pioneers were a diverse
group of people who held the same ideals: a peaceful, united and prosperous Europe:

Jean Monnet

Robert Schuman

1945 – 1959 A peaceful Europe – the beginnings of cooperation

The European Union is set up with the aim of ending the frequent and bloody wars between
neighbors, which culminated in the Second World War. As of 1950, the European Coal and
Steel Community begins to unite European countries economically and politically in order to
secure lasting peace. The six founding countries are Belgium, France, Germany, Italy,
Luxembourg and the Netherlands. The 1950s are dominated by a cold war between east and
west. Protests in Hungary against the Communist regime are put down by Soviet tanks in
1956. In 1957, the Treaty of Rome creates the European Economic Community (EEC), or
‘Common Market’.

1960-1967 Empty Chair Crisis

The proposal for the financing of the common agricultural policy (CAP), drawn up in 1965
by Walter Hallstein, President of the Commission, marked the beginning of what was known
as the ‘empty chair’ crisis. The Commission proposal was geared towards the development of
the Communities’ own financial resources, independently of the Member States, and
conferred additional budgetary powers on the European Parliament and allocated a greater
role to the Commission. France could not agree to this development, which it regarded as an
unacceptable renunciation of sovereignty. In addition, General de Gaulle criticized Walter
Hallstein for having prepared his budgetary proposal without prior consultation of the
governments of the Member States and for having acted like a Head of State. On 1 July 1965,
the French Government recalled to Paris the French Permanent Representative in Brussels
and announced France’s intention not to take its seat in the Council of Ministers until it had
its way.

1960 – 1969 A period of economic growth

The 1960s is a good period for the economy, helped by the fact that EU countries stop
charging custom duties when they trade with each other. They also agree joint control over
food production, so that everybody now has enough to eat - and soon there is even surplus
agricultural produce. May 1968 becomes famous for student riots in Paris, and many changes
in society and behavior become associated with the so-called ‘68 generation’.

1970 – 1979 A growing Community – the first enlargement

Denmark, Ireland and the United Kingdom join the European Union on 1 January 1973,
raising the number of Member States to nine. The short, yet brutal, Arab-Israeli war of
October 1973 results in an energy crisis and economic problems in Europe. The last right-
wing dictatorships in Europe come to an end with the overthrow of the Salazar regime in
Portugal in 1974 and the death of General Franco of Spain in 1975. The EU regional policy
starts to transfer huge sums of money to create jobs and infrastructure in poorer areas. The
European Parliament increases its influence in EU affairs and in 1979 all citizens can, for the
first time, elect their members directly. The fight against pollution intensifies in the 1970s.
The EU adopts laws to protect the environment, introducing the notion of ‘the polluter pays’
for the first time.

1980 – 1989 The changing face of Europe - the fall of the Berlin Wall

The Polish trade union, Solidarność, and its leader Lech Walesa, become household names
across Europe and the world following the Gdansk shipyard strikes in the summer of 1980. In
1981, Greece becomes the 10th member of the EU, and Spain and Portugal follow five years
later. In 1986 the Single European Act is signed. This is a treaty which provides the basis for
a vast six-year programme aimed at sorting out the problems with the free flow of trade
across EU borders and thus creates the ‘Single Market’. There is major political upheaval
when, on 9 November 1989, the Berlin Wall is pulled down and the border between East and
West Germany is opened for the first time in 28 years. This leads to the reunification of
Germany, when both East and West Germany are united in October 1990.

1990 – 1999 A Europe without frontiers

With the collapse of communism across central and eastern Europe, Europeans become
closer neighbors. In 1993 the Single Market is completed with the 'four freedoms' of:
movement of goods, services, people and money. The 1990s is also the decade of two
treaties: the ‘Maastricht’ Treaty on European Union in 1993 and the Treaty of Amsterdam in
1999. People are concerned about how to protect the environment and also how Europeans
can act together when it comes to security and defense matters. In 1995 the EU gains three
more new members: Austria, Finland and Sweden. A small village in Luxembourg gives its
name to the ‘Schengen’ agreements that gradually allow people to travel without having their
passports checked at the borders. Millions of young people study in other countries with EU
support. Communication is made easier as more and more people start using mobile phones
and the internet.

2000 – 2009 Further expansion

The euro is now the new currency for many Europeans. During the decade more and more
countries adopt the euro. 11 September 2001 becomes synonymous with the 'War on Terror'
after hijacked airliners are flown into buildings in New York and Washington. EU countries
begin to work much more closely together to fight crime. The political divisions between east
and west Europe are finally declared healed when no fewer than 10 new countries join the EU
in 2004, followed by Bulgaria and Romania in 2007. A financial crisis hits the global
economy in September 2008. The Treaty of Lisbon is ratified by all EU countries before
entering into force in 2009. It provides the EU with modern institutions and more efficient
working methods.

2010 – 2019 A challenging decade

The global economic crisis strikes hard in Europe. The EU helps several countries to confront
their difficulties and establishes the 'Banking Union' to ensure safer and more reliable banks.
In 2012, the European Union is awarded the Nobel Peace Prize. Croatia becomes the 28th
member of the EU in 2013. Climate change is still high on the agenda and leaders agree to
reduce harmful emissions. European elections are held in 2014 and more Eurosceptics are
elected into the European Parliament. A new security policy is established in the wake of the
annexation of Crimea by Russia. Religious extremism increases in the Middle East and
various countries and regions around the world, leading to unrest and wars which result in
many people fleeing their homes and seeking refuge in Europe. The EU is not only faced
with the dilemma of how to take care of them, but also finds itself the target of several
terrorist attacks.

HISTORY OF EAC

In the past, Kenya, Tanzania and Uganda have enjoyed a long history of co-operation under
successive regional integration arrangements. These arrangements have included:

a. The Customs Union between Kenya and Uganda in 1917, which the then Tanganyika
later joined in 1927;
b. The East African High Commission (1948-1961); (look at this)
c. The East African Common Services Organization (1961-1967);
d. The East African Community (1967-1977) and
e. The East African Co-operation (1993-2000).
Following the dissolution of the former East African Community in 1977, the Member States
negotiated a Mediation Agreement for the division of Assets and Liabilities, which they
signed in 1984. However, as one of the provisions of the Mediation Agreement, the three
Member States (Kenya, Tanzania and Uganda) agreed to explore areas of future co-operation
and to make concrete arrangements for such co-operation.

Subsequent meetings of the three Heads of State led to the signing of the Agreement for the
Establishment of the Permanent Tripartite Commission for East African Co-operation on 30
November 1993. Full East African Co-operation operations started on 14 March 1996 when
the Secretariat of the Permanent Tripartite Commission was launched at the Headquarters of
the EAC in Arusha, Tanzania.

Considering the need to consolidate regional co-operation, the East African Heads of State, at
their 2nd Summit in Arusha on 29 April 1997, directed the Permanent Tripartite Commission
to start the process of upgrading the Agreement establishing the Permanent Tripartite
Commission for East African Co-operation into a Treaty. The Treaty-making process, which
involved negotiations among the Member States as well as wide participation of the public,
was successfully concluded within 3 years. The Treaty for the Establishment of the East
African Community was signed in Arusha on 30 November 1999. The Treaty entered into
force on 7 July 2000 following the conclusion of the process of its ratification and deposit of
the Instruments of Ratification with the Secretary-General by all the three Partner States.
Upon the entry into force of the Treaty, the East African Community came into being.

Milestones of EAC Integration

a. 30 November 1993: 1st Summit of East African Heads of State sign Agreement
establishing the Permanent Tripartite Commission for East African Co-operation in
Kampala, Uganda.
b. 14 March 1996: Secretariat of the Commission for East African Co-operation
launched in Arusha, Tanzania.
c. 28 April 1997: EAC Member States sign Tripartite Agreement on Avoidance of
Double Taxation.
d. 29 April 1997: 2nd Summit of the East African Co-operation Heads of State is held in
Arusha, Tanzania; 1st East African Co-operation Development Strategy (1997-2000),
East African Flag and East African Passport launched; and Permanent Tripartite
 Commission mandated to embark on process of upgrading EAC Agreement into
Treaty.
e. 30 April 1998: 9th Meeting of the Permanent Tripartite Commission in Arusha
launches a draft Treaty for Establishment of the East African Community; approves
programmed for its wide publicity; EAC Memorandum of Understanding on Co-
operation in Defense signed in Arusha; Tripartite Agreement on Road Transport
signed in Arusha; and Inland Waterway Transport Agreement signed in Arusha.
f. 30 November 1999: 4th Summit held in Arusha at which Treaty for the Establishment
of the East African Community is signed.
g. 7 July 2000: Treaty for the Establishment of the East African Community enters into
force; new regional organization, the East African Community, comes into being.
h. 15 January 2001: 1st Summit of the East African Community is held in Arusha; signs
Protocols on: Rules of Procedure for the Summit of Heads of State; Rules of
Procedure for the Admission of other countries to the East African Community; and
formally launches the East African Community at the Sheikh Amri Abeid Stadium in
Arusha.
i. 30 November 2001: 3rd Summit of EAC held in Arusha; EAC Heads of State
inaugurate East African Legislative Assembly and East African Court of Justice.
j. 2 March 2004: EAC Summit signs Protocol for Establishment of the EAC Customs
Union.
k. 1 January 2005: EAC Customs Union becomes operational.
l. 18 June 2007: The Republic of Rwanda and the Republic of Burundi accede to EAC
Treaty.
m. 1 July 2007: Rwanda and Burundi become full members of the EAC.
n. 5 June 2007: Second Assembly (EALA) sworn in.
o. 22 October 2008: First EAC-COMESA-SADC Tripartite Summit held in Kampala,
Uganda. Discusses single Free Trade Area and merger of the three regional blocs.
p. 1 July 2009: Rwanda and Burundi join the EAC Customs Union. Official launch
ceremonies held simultaneously in the two countries’ capitals on 6 July 2009.
q. 20 November 2009: Protocol for the Establishment of the EAC Common Market
signed; climax of observance of EAC 10th Anniversary celebrations; laying of
foundation stone for EAC Headquarters in Arusha.
r. 1 January 2010: EAC’s fully-fledged Customs Union takes effect following the end of
a five-year transitional period.
 s. 1 July 2010: EAC Common Market Protocol enters into force, following ratification
by all the five EAC Partner States.
t. 3 December 2010: EAC Summit of Heads of State adopts the EAC Anthem.
u. 12 June 2011: Second COMESA-EAC-SADC Tripartite Summit held in
Johannesburg, South Africa; agrees to start negotiations for a Grand Free Trade Area
among the three blocs.
v. 5 June 2012: Third Assembly (EALA) sworn in.
w. 28 November 2012: Presidents of the EAC Partner States officially inaugurate the
new EAC Headquarters in Arusha.
x. 30 November 2013: Protocol for the Establishment of the EAC Monetary Union
signed.
y. 16 April 2016: The Republic of South Sudan joins the EAC.
z. 5 September 2016: The Republic of South Sudan becomes a full member of the EAC

Reasons for collapse of 1977 EAC

The preamble to the 1999 EAC treaty lists them as: The main reasons contributing to the
collapse of the East African Community being:

1. Lack of strong political will,

2. Lack of strong participation of the private sector and civil society in the co-operation
activities,
3. The continued disproportionate sharing of benefits of the Community among the
Partner States due to their differences in their levels of development and
4. Lack of adequate policies to address this situation;

Integrationist Cases

Flaminio costa vs. ENEL

This case concerned the interpretation of articles 102, 93, 53 and 37 EEC Treaty. The court
reiterated the concept of community law in the following terms: it follows from all these
observations that the law stemming from the treaty, an independent source of law, could not,
because of its special and original nature, be overridden by domestic legal provisions,
however framed, without being deprived of its character as community law and without the
legal basis of the community itself being called into question.

Katabazi vs, secgen EAC

The facts of the case are that Uganda arrested and tried 18 suspects over terrorism allegations.
Over when the group were granted bail, the govt rearrested them and tried them before a
court martial. The Uganda law society approached the EACJ to try the issue for violations of
articles 6, 7 and 8 of the EAC treaty. The respondents alleged that the EACJ had no
jurisdiction to handle matters touching on human rights violations. The court held that while
indeed a protocol had not been ratified for the conferment of such jurisdiction, they had
jurisdiction under article 8 which provides that states should undertake to ensure that their
actions respect the rule of law. The court held that Uganda failed to observe the provisions of
the treaty which should supersede national law. Another issue was the role of the secgen in
the investigation of treaty violations. The court held that the court indeed had such role no
matter how wind of the situation got to him.

Van Gend & Loos v Netherlands Inland Revenue Administration.

It concerned the levying of customs duties by the Dutch government contrary to the
provisions of the EEC treaty. The question before the court was whether community law
conferred individual rights which the national courts had a duty to protect. The court held
that: ‘it follows from the foregoing considerations that, according to the spirit, the general
scheme and the wording of the treaty, article 12 must be interpreted as producing direct
effects and creating individual rights which national courts must protect.’

The Queen v Secretary of State for Transport, ex parte: Factortame Ltd

The facts are the house of Lords in the UK sought an advisory from the ECHR regarding the
interpretation of Community law with regard to the extent of the power of national courts to
grant interim relief where rights claimed under Community law. The facts are that the UK
passed a law for registration of fishing vessels. The applicants sought judicial review for the
actions and the house granted a temporary injunction. The secretary appealed and hence this
case. The court held that: ‘It is for the national courts, in application of the principle of
cooperation laid down in Article 5 of the EEC Treaty, to ensure the legal protection which
persons derive from the direct effect of provisions of Community law. The full effectiveness
of Community law would be just as much impaired if a rule of national law could prevent a
court seized of a dispute governed by Community law from granting interim relief in order to
ensure the full effectiveness of the judgment to be given on the existence of the rights
claimed under Community law. It follows that a court which in those circumstances would
grant interim relief, if it were not for a rule of national law, is obliged to set aside that rule.’

Procureur du Roi v Benoît and Gustave Dassonville.

The defendants had been arrested for importing scotch whiskey from Belgium without the
proper authorization. This was held to be quantitative restrictions and that states which pass
laws that prevent intracommunity laws are quantitative restrictions.

BAT Vs. AG Uganda

The case involved the classification by Uganda of Kenyan cigarettes as imported goods and
thus charging them a higher excise duty as compared to its manufactured cigarettes. This is
contrary to the provisions of the protocol establishing the Customs Union and that
establishing the common market. These protocols provide that imported goods are goods that
originate from third countries other than the partner states. The protocols also provide that
partner states should undertake to eliminate tariffs, nontariff and technical barriers to trade.
The court reiterated the provisions of the GATT that like goods should be given the same
treatment across the board. The court also cited the case of Mohochi that provided that by
accepting to be bound by a treaty, partner states can no longer apply domestic legislations in
ways that make its effects prevail over those of community law. To this effect, decisions of
the EACJ supersedes the decisions of national courts on the same subject matter. The court
found the actions by URA and the provisions of the excise duty act to be contra the spirit of
the community.

Samuel Mukira Mohochi vs. The AG of Uganda

The case concerned the denial of entry to the Applicant, being declared a prohibited
immigrant, detention and return to Kenya. He was part of a ICJ delegation. The court relied
on the provisions of the treaty regarding the free movement of persons, goods, labor, services
and capital and the protocol enacted for that effect and the common market protocol. Uganda
tried to rely on the provisions of section 52 of its Immigration act but this was rejected by the
court. The court held that community citizens had the right to move and settle anywhere
freely in the community without undue restrictions.

Plaxeda Rugumba vs SG EAC & AG Rwanda

The issue before court was plaxeda approached the EACJ seeking remedies for her brother’s
arrest. Colonel Ngabo who was arrested at around august 2020. The applicant alleged that
Rwanda in detaining colonel ngabo, violated articles 6, 7 and 8 of the EAC treaty which
establish that partner states should promote human rights, rule of law and good governance.
The court relied on the Katabazi decision to say that it would be a dereliction of duty and oath
to idly stand by as human rights violations were undertaken.

SUPRANATIONAL ENTITIES

1. It has decisional autonomy. Makes binding decisions on behalf of the states.

2. Binding effect of its laws to all member states.
3. Institutional autonomy. They make decisions that are binding on all mbr states.

Whereas supranationalism implies an organization capable of exercising authority over states,

IGOS are merely forums for interstate cooperation.

(Reparations case of the icjs)

An IO is an association of states, where states come together to form rules that govern their
operations.

Differences between 1967 and 1999 treaty of EAC

Amol started with history of colonialism.

What is community law. And relation with national laws. (refer to the integrationist
cases)

1. It bestows rights on individuals and the same can be enforced in national courts. This was
evidenced in the case of Van Gend & Loos v Netherlands Inland Revenue
Administration, the court held that: ‘it follows from the foregoing considerations that,
according to the spirit, the general scheme and the wording of the treaty, article 12 must
be interpreted as producing direct effects and creating individual rights which national
courts must protect.’
2. It confers obligations on partner states. This was reiterated in the katabazi and Mohochi
cases. States under community law have an obligation to respect. This is further reiterated
by article 26 of the VCLT which provides that state parties to treaties must undertake to
perform their obligations in good faith.
3. It also confers duties on partner states. These duties include the duty to protect, respect
and promote the virtues and uphold the provisions of community law. This was the
holding by the EACJ in the BAT-tobacco, Katabazi-habeas corpus and Mohochi-arrest
and detention and subsequent deportation cases.
4. They can be litigated in court by individuals. The court in Van Gend & Loos v
Netherlands Inland Revenue Administration held that: ‘it follows from the foregoing
considerations that, according to the spirit, the general scheme and the wording of the
treaty, article 12 must be interpreted as producing direct effects and creating individual
rights which national courts must protect.’
5. They supersede national law. The court in Flaminio Costa vs. ENEL held that ‘it follows
from all these observations that the law stemming from the treaty, an independent source
of law, could not, because of its special and original nature, be overridden by domestic
legal provisions, however framed, without being deprived of its character as community
law and without the legal basis of the community itself being called into question.’
6. It is an independent source of law. This was the holding in Flaminio Costa vs. ENEL as
well. (refer to 5 above)

Characteristics that differentiate it from other legal regimes.

1. Unlike national law, they make provisions which cut across all other partner states.
This was the holding in BAT vs. AG of Uganda.
2. Unlike international law which are at time complementary to national law, their
provisions supersede all national laws. This was the holding in the Katabazi and
Flaminio Costa cases.
3. They are an independent, self-contained legal regime upon which regional blocs are
built. Ref to Flaminio Costa case.
4. They are autonomous and must be separated from national law. In this regard, the
decisions of the EACJ supersede those of the national courts applying national law on
the same subject matter as was held in the case of BAT Vs. AG of Uganda.

International Legal Framework for Regional Integration

VCLT,
 Progress of EAC

1. Organs of the community, the court etc

2. The progressive and pragmatic approach to EAC affairs

The pillars of integration under article 5(2) of the treaty. Read common market protocol.

Customs union, common market, monetary union, political federation

3. The sheer survival of the partner states.

4. One stop border post
5. Inclusion of the private business through the people-centred principle through
establishment of business council.
6. The EAC double-taxation agreement
7. National ids as travel documents and east African passport
8. Integrationist cases from the EACJ.

There are a number of issues that have undermined the integration.:

1. Sovereignty. Many countries don’t want to seize their sovereignty.

2. Personality of heads of state.
3. Lack of harmonization of our laws in critical areas.
4. Instability in the region. South sudan, Burundi are still troubled countries.
5. Unilateralism. Kenya go on their own negotiation.
6. Lack of support for national growth.
7. Politics of the day in the country. Kenya is mainly politically ethnicised. This scares
away nations in the region.

National contributions to EAC

Principles of EAC integration

Are in articles 6 and 7 of the treaty.

Article 6 lists them as:

(a) Mutual trust, political will and sovereign equality;

(b) Peaceful co-existence and good neighbourliness;
(c) Peaceful settlement of disputes;
(d) Good governance including adherence to the principles of democracy, the rule of law,
accountability, transparency, social justice, equal opportunities, gender equality, as well
as the recognition, promotion and protection of human and peoples rights in accordance
with the provisions of the African Charter on Human and Peoples’ Rights;
(e) Equitable distribution of benefits; and
(f) Co-operation for mutual benefit.

Article 7 provides for the operational Principles of the Community to include:

(a) People-centered and market-driven co-operation;

(b) The provision by the Partner States of an adequate and appropriate enabling
environment, such as conducive policies and basic infrastructure;
(c) The establishment of an export-oriented economy for the Partner States in which there
shall be free movement of goods, persons, labour, services, capital, information and
technology;
(d) The principle of subsidiarity with emphasis on multi-level participation and the
involvement of a wide range of stake- holders in the process of integration;
(e) The principle of variable geometry which allows for progression in cooperation among
groups within the Community for wider integration schemes in various fields and at
different speeds;
(f) The equitable distribution of benefits accruing or to be derived from the operations of
the Community and measures to address economic imbalances that may arise from such
operations;
(g) The principle of complementarity; and
(h) The principle of asymmetry

They are drawn from the ICJ statute which under article 38 lists general principles of law as
one of the sources of international law.

They could mean any of the following five categories:

a) Principles of municipal law recognized by civilized nations;

b) General principles of law derived from the specific nature of the international
community;
c) Principles intrinsic to the idea of law and basic to all legal systems;
d) Principles valid through all kinds of societies in relationship of hierarchy and
coordination; and
 e) Principles of justice founded on the very nature of man as a rational and social being.

Roles

1. Aid in interpretation of treaties Katabazi

2. Grounds for review of decisions, IMLU vs AG Kenya
3. Used as rules of law, breach of which gives rise to tortious liability, rugumba vs ag of
Rwanda.
4. Filling lacunas in law

Classification of principles. General principles under art 6 and operational principles under
article 7. Whereas the ‘Fundamental Principles’ are of general applicability, the ‘Operational
Principles’ are meant to ‘govern the practical achievement of the objectives’ of the EAC.

The principle of consensus

This is how the decisions at the EAC are undertaken, nobody is superior. There are two
forms:

 Negative consensus used by the WTO.

 Positive consensus used by EAC

The principle of subsidiarity

The concept implies the presence of authority between different levels of governance, in
which the decision-making process should start from the lowest level capable of achieving
the objectives set. The principle of subsidiarity forms a compromise on the sensitive themes
of state sovereignty and a supranational form of a regional integration block.

In the EAC, the primary goal of the subsidiarity principle is to ensure decisions, regarding an
integration activity, originate from the people; in line with the ‘people-centered’ integration
spirit. In essence, the principle of subsidiarity reaffirms democratic principles, within the
context of regional integration.

Article 1 defines subsidiarity as a ‘principle which emphasises multilevel participation of a

wide range of participants in the process of economic integration’. For achieving the
objectives of the Community, Partner States are required under article 7(1)(d) to adhere to the
principle of subsidiarity in all activities involving EAC integration.
When looking at the functioning of the EACJ, there is a genuine question to be asked as to
whether non-inclusion of domestic remedy requirement in the EACJ is within the spirit of the
subsidiarity principle as provided in the EAC Treaty.

The principle has positives and negatives. It is easy to note that the subsidiarity principle
legitimizes the Community for its citizens. It also smoothens the relationship between the
Community and its Partner States. However, when the principle is subverted by Partner
States for political reasons, it serves as a delaying tactic by Partner States unwilling to
implement the Community agenda.

The principle of variable geometry (implementation)

The principle of variable geometry allows Partner States in an integration bloc to implement
integration projects at different paces. States within an integration arrangement are allowed to
move-forward with integration activities, while leaving others to join at a later date.

The Treaty under articles 1 and 7(1)(e) recognises the principle as a policy tool of ‘…
flexibility which allows for progression in co-operation among a sub-group of members in a
larger integration scheme in a variety of areas and at different speeds.

The EACJ in the matter of a request by the Council of Ministers of the East African
Community for an Advisory Opinion, Application No. 1 2008, EACJ, First Instance Division
held that:

The Court finds that the principle of variable geometry, as its definition suggests, is a strategy
of implementation of Community decisions and not a decision-making tool in itself. [. . .] The
Court is of the opinion, therefore, that the principle of variable geometry can comfortably
apply, and was intended, to guide the integration process and we find no reason or possibility
for it to conflict with the requirement for consensus in decision-making.

The main aim of the principle of variable geometry is to ensure that the integration agenda
proceeds, even if unwilling states are reluctant to implement integration activities. Moreover,
it is a way of avoiding any internal conflicts by forcing unenthusiastic Partner States to
implement a certain program or policy. Learning lessons from the failure of the defunct EAC,
the principle attempts to address the issue of inequality among Partner States. However, when
applied under political influence, this may lead to the fragmentation of the integration bloc.

The principle of complementarity

The principle delineates the relationship between international institutions and those at the
domestic level. The principle of complementarity in the EAC Treaty has taken on an
economic approach, namely trade complementarity. According article 1 to the Treaty, the
principle ‘defines the extent to which economic variables support each other in economic
activity’. The principle of complementarity in the EAC Treaty does not only cover the
relationship between the Community itself and its Partner States, but also attempts to create a
bridge between the work of the EAC and other African institutions performing activities and
functions similar to those of the EAC. Therefore, EAC complementarity operates with regard
to both national and other regional and international institutions. Similarly, to the principle of
complementarity as envisaged in the Rome Statute, EAC complementarity calls upon relevant
institutions at the Community and local level to act, when and where their counterparts are
unable or less equipped to do so.

Fundamental rights as a general principle

Under contemporary international institutional law, respect for human rights has developed to
be an important integration principle. For instance, it is common to find an integration bloc
imposing respect for human rights as one of the prerequisites for accession to the bloc. I.e.
Art 3(3)(b) of the EAC treaty.

The EAC Treaty expressly designates the “promotion and protection of human and peoples’
rights” as a ‘Fundamental Principle’ of the EAC. We also find, among the ‘Operational
Principles’ of the EAC, the undertaking by Partner States, to adhere to the “maintenance of
universally accepted standards of human rights”

The EAC does not have its own human rights catalogue, and therefore, places its reliance on
other international sources of rights. The African Charter on Human and Peoples’ Rights
(ACHPR) is mentioned in article 6(d) as one of the normative frameworks to be taken into
account when conducting EAC activities along with ‘universally accepted standards of
human rights under article 7(2).

Relate to the Katabazi and Muhochi cases.

Other principles

1. Gradualism and pragmatism are among key principles of EAC Law and integration.
The Treaty explicitly directs under article 5(2) that ‘Partner States undertake to establish
among themselves and in accordance with the provisions of [the Treaty], a Customs Union, a
Common Market, subsequently a Monetary Union, and ultimately a Political Federation.

2. Partner States are required to conduct their activities and make decisions based on
mutual trust, political will and sovereign equality under article 6(a).
3. Peaceful coexistence and good neighborliness under article 6(b).
4. Peaceful settlement of disputes under article 6(c).
5. Equitable distribution of benefits under article 6(e).
6. Cooperation for mutual benefit under article 6(f).
7. Partner States have identified people-centred and market driven cooperation under
article 7(1)(a).
8. Obligation to provide an adequate and appropriate enabling environment, such as
conducive policies and basic infrastructure under article 7(1)(b).
9. Establishment of an export-oriented economy accompanied with free movement of
goods, persons, labour, services, capital, information and technology under article
7(1)(c).
10. Symmetry under article 7(1)(h).

Salient fetures of eac treaty, customs union and common market protocol

Treaty

1. People driven integration. Society, civil unlike 1967 one which was government-
driven. Seen also through the way to leave the EAC.
2. Sets up a corporate model instead of a regulatory model seen in the 1967 EAC. We
now have a bottom up approach. Tax regime, executive., eala, EACJ
3. Previously we had the EACA but now we had the EACJ.

The preamble sets out the reasons for the failure of the erstwhile EAC and proceeds to lay out
the manner in which the new integration shall take shape. I.e. East African Community, with
an East African Customs Union and a Common Market as transitional stages to and integral
parts thereof, subsequently a Monetary Union and ultimately a Political Federation.

Articles 5, 6, 7, 8 and 9 provide for the operational principles, objectives and tenets of the
community. 5 being objectives of the Community, 6 being the fundamental Principles of the
Community, 7 being the Operational Principles, and 8 being the General Undertaking as to
Implementation. Refer to Katabazi and the HR cases.

Article 9 establishes the organs of the community which are:

a. The Summit;
b. The Council;
c. The Co-ordination Committee;
d. Sectoral Committees;
e. The East African Court of Justice;
f. The East African Legislative Assembly;
g. The Secretariat; and
h. Such other organs as may be established by the Summit.

Chapter eight establishes the court and article 27 clothes the court with the following
jurisdiction:

 The Court shall initially have jurisdiction over the interpretation and application of
this Treaty: Provided that the Court’s jurisdiction to interpret under this paragraph
shall not include the application of any such interpretation to jurisdiction conferred by
the Treaty on organs of Partner States.
 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.

Chapter 9 creates EALA to be the legislative body of the community under article 49 of the
EAC treaty.

Article 75 of the treaty establishes the Customs union and a cutoms union protocol enacted to
address inter alia the following:

(a) The application of the principle of asymmetry;

(b) The elimination of internal tariffs and other charges of equivalent effect;
(c) The elimination of non-tariff barriers;
(d) Establishment of a common external tariff;
(e) Rules of origin;
(f) Dumping;
 (g) Subsidies and countervailing duties;
(h) Security and other restrictions to trade;
(i) Competition;

On 1st January 2005, the protocol came into effect. The objectives of the customs union under
article 3 of the protocol are:

(a) Further liberalise intra-regional trade in goods on the basis of mutually beneficial trade
arrangements among the Partner States;
(b) Promote efficiency in production within the Community;
(c) Enhance domestic, cross border and foreign investment in the Community; and
(d) Promote economic development and diversification in industrialisation in the
Community.

Article 76 provides for the establishment of the EAC common market which will further be
espoused under the Common Market protocol. Article 76(1) provides that the common
market shall cover free movement of labour, goods, services, capital, and the right of
establishment.

Article 3 of the protocol establishes that its principles shall over and above the principles
article 6 and 7 of EAC treaty, include;

(a) Observe the principle of non‐discrimination of nationals of other Partner States on

grounds of nationality;
(b) Accord treatment to nationals of other Partner States, not less favorable than the
treatment accorded to third parties;
(c) Ensure transparency in matters concerning the other Partner States; and
(d) Share information for the implementation of this Protocol.

Article 4 lists its overall objective of the Common Market is to widen and deepen cooperation
among the Partner States in the economic and social fields for the benefit of the Partner
States.

The specific objectives of the Common Market are to:

(a) Accelerate economic growth and development of the Partner States through the
attainment of the free movement of goods, persons and labour, the rights of establishment
and residence and the free movement of services and capital;
(b) Strengthen, coordinate and regulate the economic and trade relations among the Partner
States in order to promote accelerated, harmonious and balanced development within the
Community;
(c) Sustain the expansion and integration of economic activities within the Community, the
benefit of which shall be equitably distributed among the Partner States;
(d) Promote common understanding and cooperation among the nationals of the Partner
States for their economic and social development; and
(e) Enhance research and technological advancement to accelerate economic and social
development.

ORGANS OF THE EAC ARTICLE 9

Article 9 of the EAC treaty provides that there are hereby established as organs of the
Community:

a. The Summit;

Established under article 9 and is composed of heads of state. Led by a chairperson from
among them for a yearly term in rotation.

Functions include:

 Give general direction of the community. They determine the objective to be

implemented.
 Establish organs and institutions of the community.
 Appoint EACJ judges
 Consider annual reports of council of ministers.
 Assent to EALA Bills
 Review state of peace and security.
 Admit new members or grant observer status.
They meet at least once annually and at times there are special meetings.

Decisions through consensus.

b. The Council;

Established under articles 9 and 13.composed of ministers of EAC and attorneys general.
Chairmanship rotates.

Their functions are:

 Formulate policies of the community

 Initiate and submit bills to EALA
 Consider budget of community.
 Consider measures undertaken by a state towards implementation of a treaty.

Their decisions are binding on partner states, organs and institutions of the EAC except,
EALA, EACJ and the summit.

c. The Co-ordination Committee;

Composed of PS responsible for EAC affairs. Their functions under article 18 are to
implement decisions of the council and to make reports to council.

d. Sectoral Committees;

In charge of making reports and forwarding the same to the coordination committee.

Implement comprehensive reports on certain sectors

e. The East African Court of Justice;

Done by Omolo

f. The East African Legislative Assembly;

It is made up of 9 members from each state.

Enacts community acts.

Approves budget.

g. The Secretariat;

Executive organ of the community.

Composed of secgen and DSG and counsel of the community.

Institutions of the community.

Civil aviation safety commission

East African development bank

Institution of the erstwhile EAC. Provides finance and technical assistance to the community.

East Africa health research commission

Handles matters of health.

Kiswahili commission

Article 119 provides that there should be development and promotion of indigenous
languages especially Kiswahili as a lingua franca;

Science and technology commission

Interuniversity council for east Africa

From the erstwhile EAC

Lake Victoria basin development bloc

Development of lake region

Lake Victoria fisheries organisation.

Deals with aquaculture and fishing.

Omolo J. A. On dispute resolution mechanism in the EAC

Difference between dispute and disagreement. A dispute can be defined as a disagreement

concerning a matter of fact law or policy in which a claim or assertion of one party is met
with refusal, counterclaim or denial by another.

It starts at disagreement then dispute then conflict with each being greater than the
predecessor.

Section 2 of the EAC conflict management act defines a conflict to be a disagreement

through which parties discern a threat to their interests, needs or concerns.
Dispute resolution framework

Traditionally, states resolve disputes trough negotiations. It is a political or diplomatic

process through which parties seek consensus. This is difficult to achieve and enforcement
may not be effective.

Can only work of minor issues and never on fundamental issues.

In light of these lackings of negotiation, states have shifted to more rule-based/ judicial and
compulsory mechanisms.

A good dispute resolution mechanism has:

 A hybrid system with political and legal framework.

 Right to third party review of complaints.
 The status in PIL of rulings made by it. Are they legally binding?
 Terms of engagement of third parties. What is the process of appointment of third
parties adjudicating?
 Is it ad hoc or a standing body?
 How is their independence secured?
 Standing to file a complaint. Who can file a complaint and against who?
 Remedies that the mechanism can give.

The EAC framework reflects an attempt to develop a decentralized system which

incorporates both the political and legal aspects. It is made up of:

 The summit
 The council of ministers
 The EACJ
 National courts
 The EAC committee on trade remedies
 The secretariat
 The EAC competition authority and other national authorities.

THE EACJ
Chapter eight establishes the court and article 27 clothes the court with the following
jurisdiction:

 The Court shall initially have jurisdiction over the interpretation and application of
this Treaty: Provided that the Court’s jurisdiction to interpret under this paragraph
shall not include the application of any such interpretation to jurisdiction conferred by
the Treaty on organs of Partner States.

The treaty recognizes that in the future 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.

Art 31 and 32 confers additional jurisdiction on employment matters between community and
employees and where parties nominate the court as the forum of choice for arbitration clause.
Omolo has explained my conundrum on human rights in the EAC.

Composition of the court

 First instance court

 Appellate division

Peter Anyang’ Nyong’o vs AG of Kenya reference no. 1 of 2006. Election of Kenyan mps to
EALA. AG argued that this was an issue for the courts in Kenya. The court then had no
appellate body and the ags were infuriated, the outcome lead to:

 Creation of appellate division

 Time barrier for actions put to 2 months
 Denial of the court’s jurisdiction over matters that has been reserved to a national
institution.

These are under article 27 of the act.

Locus standi is given to:

 Partner states under article 28

 SG of EAC under article 29
 Legal and natural persons under article 30

Weakness of the EAC dispute resolution framework

 1. In certain instances, there is more than 1 body entitled to adjudicate over a dispute and
there is no clear framework on how to go about that. The problem here is that it
creates jurisdiction issues. It also raises issues of forum shopping. I.e. EALS vs.
Secgen EAC where the court confirmed that on certain matters under the common
market protocol, both the court and the committee on trade have jurisdiction
2. Limited scope of jurisdiction of the court.
3. The locus standi on defendats is only limited to partner states, organs or institutions of
the community. Case here is Modern holdings vs. Kenya ports authority. And Alcon
international ltd vs. Standard chartered bank of Uganda. This is a problem necause
integration is not a governmental business alone. The private sector and civil society
are recognized even in the preamble.
4. Amendments that were introduced to article 27 of the treaty. The case is EALS vs
secgen of EAC. The court found the provisions of the provisos as bad.
5. The stricta limitation of time for private persons.
6. The remedies that the court can grant. The court seems to have interpreted its powers
to only allow it to make declarations.

Advantages of common market:

ii. Wider market.

iii. States can ensure free movt of goods, services, labor, two rights, the right of
establishment and that of residence. Found in regional law and not national
legislation.
2. Peace, security and stability. Enhance maintenance of peace in a region. Reason
behind regional integration.

Advancement of EAC Integration.

 Common passport

Pursuant to the provisions of the Common Market protocol to ensure the free movement of
persons and the right of establishment, the partner states undertook in 2014 to adopt a
common passport across the region. States have since adjusted their immigration policies to
fit this new paradigm.
The undertaking to adopt a common passport is rooted in article 9(1) which provides that a
citizen of a Partner State who wishes to travel to another Partner State shall use a valid
common standard travel document. Article 1 of the common market defines common
standard travel document to be a passport or any other valid travel document establishing the
identity of the holder, issued by or on behalf of the Partner State of which he or she is a
citizen and shall also include inter‐state passes.

This furthers the objective of the common market to eliminate restrictions on movement of
persons and services, labor and capital. Further to this implementation, residents of partner
states are not required to obtain visas to enter another partner state. This in itself is another
way of implementation of the treaty.

 Double taxation

The partner states have entered double taxation agreements pursuant to article 21 of the
common market protocol. This is to promote the growth of the private sector as well as
residents of the partner states. The need to rope in the involvement of the private sector in the
integration of the community was envisioned by the founders of the 1999 EAC and was
recognized as one of the reasons the erstwhile EAC flopped in 1977. To the extent that
residents and businesses shall not be taxed twice in any of the partner states, the objective of
regional is more fulfilled.

 One stop border post

Article 5 of the common market provides that partner states undertake to ease cross ‐border
movement of persons and eventually adopt an integrated border management system. The
integrated border management system is in the one stop border post which has been
implemented in the region. We have the Namanga and Busia OSBP in the Kenyan borders
with Tanzania and Uganda respectively.

This reduces the time that was previously taken to clear at the border points and eases the
travel of citizens, goods and services. This furthers the factors of production that have been
determined to be the facilitators of community integration.

 Customs and taxes

The protocols recognize the concept of most favored nation under article 18 of the Common
market protocol. It provides that Each Partner State shall accord unconditionally, to services
and service suppliers of the other Partner States, treatment no less favorable than that it
accords to like services and service suppliers of other Partner States or any third party or a
customs territory.

The Case is British American Tobacco VS. Attorney General of Uganda. The facts is that the
government of Uganda through its revenue authority imposed customs duties on BAT’s
cigarettes over grounds that BAT had shifted its production units to Kenya and thus depraved
the country of jobs and income. The court found that the act by URA infringed on the
provisions of the EAC treaty, the customs and common market protocol as well as the spirit
of integration of the EAC.

Furthermore, the state parties undertake under the Customs union protocol to adopt a
common external tax so as to improve economic growth in the community.

 Travel with ID and passport

Pursuant to the provisions of the Common Market protocol to ensure the free movement of
persons and the right of establishment, the partner states undertook to adopt the Standard
Identification System. Article 8 of the protocol provides that the Partner States shall establish
a common standard system of issuing national identification documents to their nationals
which shall be the basis for identifying the citizens of the Partner States within the
Community. Although this has not been implemented in full, some states do recognize an ID
car issued by a partner state as valid ident documentation in their jurisdiction.

This implementation stems from the recognition of the right to free movement of the person
and that of establishment as is espoused under the treaty, the protocols and as crisply
enunciated in the Samuel Mukira Mohochi case.

 Tariff and non-tariff barriers

Partner states have undertaken to remove tariff and non-tariff barriers to trade in the
community. Non-tariff barriers means laws, regulations, administrative and technical
requirements other than tariffs imposed by a Partner State whose effect is to impede trade.
Therefore, there has been free flow of goods and services within the region and has
accelerated the economic development of the community. This is coupled with the
mostfavored nation treatment under the protocols and the obligation for nondiscrimination.
The effects of tariff and non-tariff barriers have been enunciated in the BAT and Kioo
Limited cases.

Whether the prohibition to use the wrappers in question in Kenya compatible with the
East African Community law?

The applicable law in this matter would be the EAC treaty and the protocols establishing the
EAC Customs Union and the EAC Common Market. Article 7 of the EAC treaty provides
that the principles that shall govern the practical achievement of the objectives of the
Community shall include the establishment of an export-oriented economy for the Partner
States in which there shall be free movement of goods, persons, labour, services, capital,
information and technology.

Article 76 provides that there shall be established a Common Market among the Partner
States within which there shall be free movement of labour, goods, services, capital, and the
right of establishment.

Article 6 of the Common Market protocol provides that the free movement of goods between
the Partner States shall be governed by the Customs Law of the Community as specified in
Article 39 of the Customs Union Protocol. Article 39 provides that the customs law of the
Community shall consist of: (a) relevant provisions of the Treaty; (b) the Customs Union
Protocol and its annexes; (c) regulations and directives made by the Council; (d) applicable
decisions made by the Court; (e) Acts of the Community enacted by the Legislative
Assembly; and (f) relevant principles of international law.

Having highlighted the relevant law that would cover the issue, it is prudent to provide a
decision of the EACJ over the same matter. The Case is British American Tobacco VS.
Attorney General of Uganda. The facts is that the government of Uganda through its revenue
authority imposed customs duties on BAT’s cigarettes over grounds that BAT had shifted its
production units to Kenya and thus depraved the country of jobs and income. The court found
that the act by URA infringed on the provisions of the EAC treaty, the customs and common
market protocol as well as the spirit of integration of the EAC.

The EACJ cited that due to the fact that Uganda had ratified the treaty and the protocols, it
meant that it was no longer at liberty to enact laws that infringed on the spirit. The EACJ
based its decision on articles 26 and 27 of the Vienna convention on the Law of treaties
which provides that treaties shall be implemented in good faith under pacta sunt servanda and
that states cannot use internal as basis for infringing on provisions of the treaties ratified. The
EACJ stated that the dichotomy between the commitments made under the treaty and the
attendant protocols on one hand and the reality posed by the conflicting misapplication of the
domestic legislation on the other hand does not augur well for EAC integration.

The prohibition of use of wrappers, in the local legislation is in light of the protocols an
unnecessary barrier to trade. This is a stark difference from the provisions of the common
market protocol and the treaty and the objectives of the treaty to create an export-oriented
economy for the Partner States in which there shall be free movement of goods.

Thus, to summarise this opinion, the prohibition on use of wrappers does not augur well with
the provisions of EAC integration. This is further buttressed by the EACJ decisions that states
cannot undertake contradictory laws to the laws of the EAC.

Significance of one stop border post

Non-tariff barriers

Non-tariff barriers means laws, regulations, administrative and technical requirements other
than tariffs imposed by a Partner State whose effect is to impede trade;

International legal framework for regional integration

Execution of eacj judgements article 44

Read on the Kenya-US free trade agreement

Simplified trade regime

Read amterial on common market protocol