An examination of the effectiveness of the East African Court of Justice in the adjudication of civil and political rights cases

Abstract

Countless human rights violations have been recorded in most of the East African Community Partner States. Due to lack of judicial independence, most of national courts have been failing to properly redress such violations, thus leaving potential room for impunity. As a result, since 2005, victims of such human rights violations have been seeking remedies before the East African Court of Justice (EACJ), a Regional Economic Community (REC) Court which has been increasingly used by litigants to raise human rights-related claims. However, the Court itself does not have a clear human rights jurisdiction. This study argues that jurisdictional limitations set in the EAC Treaty coupled with both political and operational challenges undermine the effectiveness of the EACJ in the adjudication of human rights matters. It thus sets out to examine the judicial effectiveness of the EACJ in its exercise of jurisdiction over civil and political rights cases; critically analyses the challenges confronting the EACJ and thus assesses their impact on the Court’s effectiveness in the protection of human rights in the East African region. By so doing, a particular attention is given to the Court’s lack of express human rights jurisdiction, the delayed adoption of a protocol for the extension of jurisdiction on human rights, the lack of enforcement mechanism for the Court’s decisions and to assertions of State sovereignty as well the EACJ daily operational challenges epitomised by the lack sufficient funding, lack of administrative and financial autonomy, the ad-hoc operational basis of the Court, and their overall impact on the effectiveness of the EACJ in the enforcement of human rights, with a focus on civil and political rights. After critically examining structural and institutional deficiencies and the creative approach adopted by the EACJ in determining human rights related matters, the study finds that although the Court does not have an explicit human rights mandate, it have been able to articulate and assert a human rights related jurisdiction, and thus enforce human rights standards, in such a limited and fragile jurisdiction. Yet, the EAC Partner States’ sovereignty, being the major cause of constraints, its scope and applicability need to be redefined in alignment with the regional integration arrangement context. Finally, by drawing on the experience of more established regional courts in other parts of the world, the study distils some practical lessons; and proposes legal, normative and institutional reforms to boost effectiveness of the EACJ in the realisation of human rights and thus deepening regional economic and political integration of the East African Community