Dr. Ally Possi
Post-Doctoral Fellow, North-West University, South Africa; lecturer, the Law School of Tanzania
This post exposes time-limitation obstacle facing private litigants in accessing one of the African regional economic community judiciaries: the East African Court of Justice (EACJ, or the Court). The EACJ is the judicial organ embedded to settle disputes in connection with the East African Community (EAC) integration activities. Comparatively, the EACJ is a replica of other regional economic community courts, currently in existence, such as the Court of Justice of the European Union.
Private litigants play a key role in modelling states’ behaviour to realise their integration ambitions. One of the operational principles of the EAC is the ‘people-centered’ co-operation form of integration (art 7(1)(a) of the EAC Treaty). Therefore, it was not an oversight to permit individuals to account Member States before the EACJ, whenever there is an infringement of the EAC Treaty. However, article 30(2) of the Treaty restricts private litigants to lodge their complaints: within two months of the enactment, publication, directive, decision or action complained of, or in the absence thereof, of the day in which it came to the knowledge of the complainant.
Following a significant level of silence on the stringent rule, this post is important considering the nature of the subject it tackles. Judges have been narrowly and strictly interpreting article 30(2) of the EAC Treaty, preventing private litigants to lodge their complaints to the EACJ with ease. Eventually, individuals are being denied access to justice. This post, therefore, argues that EACJ judges need to broadly and purposely interpret article 30(2) of the EAC Treaty, while at the moment the extension of the two months’ time window is denied on grounds that are contrary to the spirit of the EAC Treaty. Thus, this post provides some legal evidence for EACJ judges to stretch this interpretation.
East African Court of Justice
The Court is established pursuant to article 9 of the EAC Treaty, as one of the EAC organs bestowed with a mandate of interpreting and applying the EAC Treaty (see art 23, 27(1)). The Court is composed of two Divisions – the First Instance Division (FID), which has jurisdiction over most matters, and the Appellate Division (AD), where matters initially dealt by the FID are considered for appeal, as well as applications for advisory opinions. Worth a mention, accessibility to the EACJ by private litigants, challenging the acts of EAC Member States, is one of the most modern features in the catalogue of international and regional courts.
It is now about sixteen years after EACJ’s official inauguration on 30 November 2001. In 2005 the EACJ received its first case concerning a power struggle for enacting EAC laws between the Council and the East African Legislative Assembly (EALA). The turning point to the Court’s fortune was in 2007, when EAC Treaty was hastily amended as a means of retaliation from Member States, due to a judgment by the Court faulting the manner in which members of EALA from Kenya were elected (see Anyang’ Nyong’o v AG of Kenya).
The process of amending the Treaty was, however, nullified in EALS v AG of Kenya & Others, of which the Regional Bar Association successfully challenged the amendment process by contending that EAC citizens were not consulted over the proposed amendment; a process required by the Treaty. Thus, the EACJ found the amendment process was contrary to the letter and spirit of the EAC Treaty, of which one of its founding norms requires a people-centered driven form of integration. Despite of the EACJ decision, the amended Treaty retained its legal force. Perhaps, the nature of the EACJ’s decision, which was in a declaratory form, had something to do with its weak implementation; which is a matter of another academic debate. Nevertheless, it is important to point out that EAC Member States, as most African states, have the tendency of not complying with the decisions of international bodies. Be it as it may, it was through that illegal-pronounced amendment that article 30(2) was inserted.
EACJ’s approach on article 30(2)
The stance of the EACJ over article 30(2) EAC Treaty is appreciatively conservative; the article is strictly interpreted within its generic context. Consequently, many fresh cases are on the verge of facing dismissal, as it is unrealistic for private litigants to have a full case ready for court registration within sixty days. Case preparation takes time and demands resources. The EACJ has jurisdiction over a region where the majority of the people are least advantaged and under resourced. By being uncompromised to the two-months’ time draconian rule, judges are therefore denying individuals access to justice.
However, in the early EACJ cases, where article 30(2) EAC Treaty was at the focal point of dispute, the FID used to condone it. In IMLU v AG of Kenya, for instance, the applicant accused Kenya of violating the EAC Treaty, for failing to prevent or punish the perpetrators of the violence occurred at Mount Elgon during the 2007 general election. Kenya refuted such allegations by objecting the time in which the applicant’s complaint was lodged. In its decision, the FID stated (at p. 10):
It is our considered view, that the matters complained of are failures in a whole continuous chain of events from when the alleged violations started until the Claimant decided that the Republic of Kenya had failed to provide any remedy for the alleged violations. We find that such action or omission of a Partner State cannot be limited by mathematical computation of time.
The above reasoning was the FID’s stance in the early few cases with time-limit concerns. When those cases reached the AD, however, they all were overturned on the grounds that the EACJ does not have any mandate to stretch time limits; and that arguments on the application of the doctrine of continuing violation cannot be sustained since EACJ is not a human rights court, where the doctrine is relevant (see AG of Uganda v Omar Awadh). As it stands, no flexibility is seen from the EACJ yet to at least liberally interpreting article 30(2) EAC Treaty.
The AD’s position came at a time when minds of all those affiliated with the EACJ were fresh from the suspicious 2007 Treaty amendment, of which the AD was created. It was also the first batch of AD appointed judges who presided on the above appealed time-limit cases. While there is no evidence of the then AD judges lacking impartiality, speculations on the AD’s verification role over FID cannot be shrugged-off with ease.
A call for a purposive interpretation
Article 30(2) EAC Treaty should be interpreted in light of its object and maiden purpose. The following are reasons for the call. First, before the faulted 2007 Treaty amendment, article 30(2) was not inserted purposely to allow private litigants to have their share in playing a role within EAC integration without restrictions. After inserting article 30(2), individuals are now not able to access the EACJ with comfort. In fact, the provision was inserted in a discriminatory manner, as it is only applicable to private litigants and not to other potential applicants, such as the EAC Secretary General. Therefore, strictly interpreting article 30(2) of the EAC Treaty is against the maiden spirit of the Treaty of allowing EAC citizens to have a say in the activities of their economic bloc.
Second, private litigants are key in spearheading integration goals through litigation on matters directly associated with integration. By strictly applying article 30(2) EAC Treaty, applicants will not easily access the EACJ, eventually denying them access to justice and hindering them from playing a crucial role in shaping the integration. A society such as that of the EAC where most indigents are illiterate and legal services are scarce, a time-window of sixty days is minute. One would take about six months and above to gather evidence, jotting-down pleadings, and seeking legal assistance; let alone the time to be aware of legal procedures or even the existence of a court such as the EACJ. Thus, there is a need of applying the time limit rule with more logic.
Third, looking at the nature of cases received by the EACJ since its inception, the Court has been failing to attract traders due to its remedial powers and other related pitfalls. In having a two months’ time limit for lodging a complaint, traders in the region will keep-on boycotting the Court and find other more favourable avenues to solve their disputes. Thus, by harshly interpreting article 30(2) EAC Treaty, the Court does not help its course of making traders bring commercial-related disputes before it.
Fourth, Rule 4 of the EACJ Rules of Procedure allows the Court to extend time in all procedural matters. Time-limits are also matters of procedure that judges should take note of and apply the rule for the benefit of individual litigants. It is somewhat surprising to find EACJ judges not toiling enough to broadly interpret article 30(2).
Fifth, there is evidence that the doctrine of continuing violation is commonly used in other legal matters, including tort and environmental law. It is unfound for the Court to declare that the doctrine of continuing violation is only relevant to courts with human rights jurisdiction. Looking at matters concerning contracts, clearly, their nature of violation can be continuous. Being a regional economic community court, it is expected that trade and contractual related matters will be handled to the Court. By strictly interpreting article 30(2) of the EAC Treaty, to the extent of not upholding the continuing violation doctrine, the Court might not receive many critical cases, and in this respect it might fail to attract traders.
Sixth, using the same thread of reasoning from EACJ judges that the EAC Treaty does not explicitly confer the Court with a mandate to extend the restrictive time-limit, one can advance an argument that the Treaty also does not prevent EACJ judges from extending time-limits. Even more so, another glance to article 30(2) finds a phrase ‘within the article’, meaning that the rule is only determined upon weighing all circumstances at present. Thus, the EACJ can extend time for lodging complaints depending on the situation at hand.
Article 30(2) EAC Treaty is a hurdle to private litigants before the EACJ. By maintaining and conservatively applying the provision, genuine intention of having direct individual access to the EACJ becomes meaningless. A more recent attempt disputing article 30(2) proved futile (Steven Dennis v AG of Burundi & Others), when FID held that article 30(2) EAC Treaty conforms established Community norms. Understandably so, the FID cannot rule contrary to the AD. This latest decision has dashed private litigants’ hopes of getting rid of the draconian time-limitation rule. Therefore, it is submitted that, in the future, the EACJ should provide an interpretation of article 30(2) EAC Treaty based on its object and purpose, as established in the Vienna Convention on the Law of Treaties (art 31(1)).
 For a general understanding of the EAC principles, see: KC Kamanga and A Possi, ‘General principles governing EAC integration’ in E Ugirashebuja et al (Eds), East African Community law: Institutional, substantive and comparative EU aspects (Brill-Nijhoff, Leiden 2017) at 202-216.
 Henry Onoria, ‘Botched-up Elections, Treaty Amendments and Judicial Independence in the East African Community’ (2010) J. Afr. L. 74-94.
 Art 150 read together with art 7(1)(a) of the EAC Treaty.
 IMLU v AG of Kenya Ref No. 3/2010 of (29 June 2011); Rugumba v AG of Rwanda Ref No. 8/2010 (30 November 2011).
 Art 31 of the Vienna Convention on the Law of Treaties, 1969.
 See arts 28,29 and 30 of the EAC Treaty.
 Art 7(1)(a) of the EAC Treaty.
 James Gathii, ‘Variation in the Use of Sub-Regional Integration Courts between Business and Human Rights Actors: The Case of the East African Court of Justice’ (2016) Law & Contemp. Probs. 37-62.
 AC Lin ‘Application of the Continuing Violations Doctrine to Environmental Law’ (1996) 23 Ecology Law Quarterly 713-777; Elad Peled 2004-2005 ‘Rethinking the Continuing Violation Doctrine: The Application of Statutes of Limitations to Continuing Tort Claims’ (2004-2005) 41 Ohio Northern University Law Review 343-388.