EACJ ina meno ya kuishauri na kuzitaka serikali za EAC kukazia hukumu inazotoa :
The domestic impact of the decisions of the East African Court of Justice
2 EACJ and its human rights competence
Established under article 9 of the EAC Treaty, the EACJ is the Community’s judicial arm, whose core function is to ensure the adherence to law in the interpretation and application of the Treaty.
8 The Court’s jurisdiction covers both contentious and non-contentious matters relating to the interpretation and application of the Treaty.
9 The Court may be seized of a matter through references by natural and juristic persons resident within the Community, EAC member states and the EAC Secretary-General.
10 The EAC Council may also seek advisory opinions from the Court under article 14 of the Treaty.
The EACJ does not have express jurisdiction to hear and determine human rights cases. Article 27(2) of the EAC Treaty suspends the Court’s human rights jurisdiction until a protocol has been adopted that would extend its jurisdiction to include human rights cases. A protocol adopted in 2014 under article 27(2) of the EAC Treaty excluded human rights jurisdiction based on the argument that member states already have acceded to the African Charter on Human and Peoples’ Rights (African Charter) and, therefore, any human rights cases emanating from the member states should be argued at the African Court on Human and Peoples’ Rights (African Court).
11 Furthermore, member states have argued that they have sufficient national constitutional safeguards for the protection of human rights without the need for a sub-regional human rights court.
12
Nonetheless, the EACJ through a mix of judicial activism and creative interpretation has claimed for itself limited human rights jurisdiction. The landmark case in this regard was
James Katabazi & 21 Others v the Secretary-General of the EAC & Another, where the Court held that although it not yet had jurisdiction to deal with human rights issues, it had jurisdiction to interpret the Treaty even if the matters complained of included human rights violations.
13 Accordingly, the Court proceeded to ‘interpret’ and ‘apply’ articles 6(d), 7(2) and 8(1)(c) of the Treaty and made a finding that the facts of the case disclosed a violation of the principle of the rule of law and, consequently, a contravention of the EAC Treaty.
This position continues to be ......
The EACJ is not an appellate court from the domestic jurisdiction. Rather, it fulfils a complementary function to the national courts.
16 The EAC Treaty creates a system whereby national courts have limited jurisdiction to determine disputes relating to the application of Community law, but at the same time recognising that this is subject to the supremacy of the EACJ in the interpretation of all law made within the EAC framework.
17 As such, decisions of the EACJ, being part of Community law, take precedence over decisions of national courts insofar as the interpretation and application of the EAC Treaty is concerned. This position is reinforced by articles 8(4) and 33(2) of the EAC Treaty and was reaffirmed by the EACJ in the case of
Attorney-General of the Republic of Uganda v Tom Kyahurwenda.
18
The EACJ lacks its own implementation framework and, therefore, relies on national legal systems to implement its decisions, and in particular those that require some form of action at the national level. Judgments that impose a pecuniary obligation on a person are executed as per the rules of civil procedure of the member state concerned, thereby enforcing the EACJ’s judgments in the same manner as decisions of national courts.
19 Those that do not impose pecuniary obligations are implemented under the broad framework of article 38(3) of the EAC Treaty, which requires the Council of Ministers or the member states to take measures to expeditiously implement the Court’s decisions, thus to a large extent hingeing compliance on the political goodwill of member states.
3 Evaluating the national impact of the human rights judgments of the EACJ
Since its inauguration in 2001 the EACJ through its adjudicative, interpretative and advisory jurisdiction has played a critical role as the plumb line for policy, legislation and administrative action taken by member states in relation to the implementation of their Treaty obligations. As will be demonstrated in the cases analysed in this section, the EACJ through its bold and innovative decisions has distinguished itself as a champion for the promotion and protection of human rights notwithstanding the lack of express human rights jurisdiction. These cases have been selected having taken cognisance, among others, of the human rights issues that were raised in the arguments before the Court, the decisions of the Court thereon and their contribution to the human rights discourse and jurisprudence both at the EAC level and within the respective member states’ national legal framework.....
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Lando, V - African Human Rights Law Journal (AHRLJ)