The East African Court of Justice (EACJ) recently held that the East African Community (EAC) breached its duties to effectively investigate and redress possible violations of the principles in the EAC Treaty that arose from the allegedly illegal expulsion of Rwandan and Burundian immigrants from Tanzania in 2013. See East African Court of Justice, East African Law Society v. Secretary General of the EAC, Ref. No. 7 of 2014, Judgment of 22 March 2016, para. 75. The claim was brought to the EACJ by the East Africa Law Society, which alleged that the EAC had failed to take remedial actions to ensure that expulsions conformed to regional legal standards and principles. Id. at paras. 6, 7. The EAC argued that it had fulfilled its duties and the States involved are responsible for remedying the situation, which they failed to do. Id. at para. 53.
The judgment highlights the EAC Secretary General’s duty to both investigate possible violations of the EAC Treaty and to subsequently submit the findings of that investigation to the EAC Council of Ministers, the governing organ of the EAC. See id. at paras. 61, 66, 67, 75. The EACJ found that because the expulsion of citizens of one EAC State by another Member State posed a potential threat to principles enshrined in the EAC Treaty, the EAC Secretary General had an obligation under articles 29, 71(1)(d), and 71(1)(l) of the EAC Treaty to vigilantly investigate the situation, notify the Member State involved of its breach of the EAC Treaty, and take subsequent action following the investigation. See id. at paras. 60-62, 75(a). The decision elaborates on the 2007 EACJ ruling in Katabazi and 21 Others v. EAC and Uganda, in which the Court found that Article 29, which requires notification of a violation of the EAC Treaty to the Member State involved, implies that the Secretary General may investigate a possible violation. See East African Court of Justice, James Katabazi and 21 Others v. Secretary General of the EAC and the Attorney General of Uganda, Ref. No 1 of 2007, Judgment of 1 November 2007, paras. 24-26.
Facts of the Case
A wave of expulsions of Rwandan and Burundian immigrants from Tanzania began in August 2013. Id. at 6. In a meeting held that month, the EAC Council of Ministers ordered: the EAC to undertake a fact-checking mission, the governments of Rwanda and Tanzania to meet on the matter, and the EAC to form a Peace and Security Council to investigate and discuss the situation. Id. at paras. 14, 15. In February 2014, the East Africa Law Society submitted an inquiry as to what remedial measures had been taken by the EAC to resolve the issue, and learned that the two State governments had not yet met, the EAC had failed to develop a Peace and Security Council, and though a fact-checking mission took place in September 2013, the EAC had yet to submit the findings to EAC Member States or EAC policy organs. Id. at paras. 6, 8, 15-16, 22.
The Parties’ Arguments
The East Africa Law Society alleged that the prolonged inaction and failure to carry out the directives of the Council of Ministers constituted a breach of the EAC’s obligations to investigate matters relevant to the Community. Id. at paras. 10, 17. The EAC failed, the East Africa Law Society argued, in its responsibility to be diligent in responding to a possible breach of the EAC Treaty because it was not enough for the Community to initiate a meeting that did not happen, undertake a fact-finding mission that bore no final report, and to determine that all liability for implementing the Council directives and improving the situation of the immigrants lay with the States. Id. at para. 49.
The EAC claimed the report would be finalized upon review when the two States finally met and that it was, accordingly, premature to accuse the Community of negligence or inaction because the process was still ongoing. Id. at paras. 23, 24. Further, the EAC argued that it fulfilled its duties through the delivery of the Council of Minister directives and that the duty of implementation fell to the individual States whom the directives targeted. Id. at para. 25.
Deliberations of the Court
The EACJ recognized that the alleged expulsion of immigrants from one Member State by another posed serious threats to the fundamental objectives and principles in the EAC Treaty and considered what actions ought to be taken by the EAC to fulfill its obligations to investigate such violations of the EAC Treaty. Id. at paras. 60, 61, 66. The Court found that under articles 71(1)(d) and 71(1)(l) of the EAC Treaty the EAC should have diligently investigated the matter, developed a report based on the investigations, and made recommendations. See id. at para. 61. The EACJ also reiterated the obligations laid out in Article 29 that establish that after an investigation and finding of a violation of the EAC Treaty, the Secretary General has the obligation to engage with States and the EAC Council to ensure that rights enshrined in the EAC Treaty, which include human rights under Articles 6(d) and 7(2), are upheld. Id. at para. 62.
The Court affirmed that it was not enough for the Community to develop directives that failed to result in effective measures or actions. The Court was clear in this regard, stating, “[the Secretary General] cannot shun his responsibilities by stating that he took ineffective measures such as initiating meeting which never took place or establishing a fact finding mission whose report was never submitted to the relevant organ of the Community for consideration,” particularly in an urgent situation that, if proven, “would constitute a flagrant violation of the objectives and fundamental principles of the Community and gravely undermine the spirit of regional integration.” See id. at paras. 65, 66.
The EACJ held that the EAC failed in its duties under articles 71(1)(d) and 71(1)(l) to submit the findings of its investigation to the EAC Council of Ministers. Id. at para. 75. The Court, therefore, ordered the Secretary General to finalize the report on the fact-finding mission and to submit the findings to the EAC Council of Ministers. Id.
The case brings to light questions regarding regional judicial bodies’ jurisdiction over the human rights obligations of regional political bodies. At least two cases before the African Court on Human and Peoples’ Rights have named the African Union (AU) as a respondent, but thus far the African Court has found it does not have jurisdiction over the African Union. For instance, in Femi Falana v. the African Union, the African Court dismissed the case, determining that the African Union is not a Party to the African Charter and is therefore not within its jurisdiction. See AfCHPR, Femi Falana v. African Union, Application no. 001/2011, Judgment of 26 June 2012, para. 67. The African Court reasoned that though treaties are adopted through the signatures of the AU Assembly of Heads of State, the signatures do not represent the African Union as a single entity but rather represent each individual respective Member State. Id.
As in East Africa Law Society v. the East African Community, the East African Court of Justice, however, accepts cases against the East African Community, represented by the EAC Secretary General, and through this jurisdiction intends to hold the Community accountable for ensuring EAC Member States uphold all of the objectives and fundamental principles, including human rights, enshrined in the EAC Treaty. Accountability of intergovernmental organs is a common feature of regional integration communities, whose courts are generally established specifically to adjudicate disputes related to the community’s actions and agreements, whereas human rights courts are focused on States’ fulfillment of their human rights obligations.
While the EACJ does not have jurisdiction to receive complaints of alleged violations of human rights law, it has decided cases alleging violations of the EAC Treaty that implicate human rights. Articles 6 and 7 of the EAC Treaty, which are justiciable before the EACJ, require the States parties to uphold principles of human rights, democracy, and the rule of law. [IJRC]
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