OPINIONS & COMMENTARIES
THE OTHER SIDE OF LAW | Moses Sserwanga
...
Leading us blindly in East Africa
June 19, 2007
In his State-of-the-Nation address on June 21, President Yoweri Museveni
emphasised the need for regional integration reasoning that the
advantages of such a grouping far outweigh the disadvantages.
The 5th extra-ordinary summit of East African Community (EAC) heads of
state and council of ministers which was opened in Kampala yesterday
admitted two new member states: Rwanda and Burundi, to broaden and
consolidate the benefits that come with regional political and trading
blocs.
As the heads of state re-examined their commitment and the progress made
towards regional integration; they needed also to reflect on the
provisions of the East African treaty which in the most obligatory
language, require the Partner States to implement a dispensation of
constitutionalism, democracy and good governance.
The governments of the member states are also under a legal obligation
to ensure the rule of law, and the protection and promotion of human
rights in accordance with the provisions of the African Charter on
Human and Peoples' Rights.
These obligations require that the process of enactment or amendment of
the Treaty, its Protocols or any legislation subsidiary to them are
lawful and do not infringe the Treaty or laws made under it, or
national constitutions or laws, or settled principles of international
law.
It is now trite international law that the process of enactment or
amendment of a Treaty, is people-driven, consultative and
participatory. Peremptory (decisive) norms of international law call
for enactment and amendments of treaties to be made in good faith - to
strengthen, and not weaken, the organs, programmes and processes for
which they are sought. In other words the principle of public
consultation in Treaty reform or amendment is fundamental.
One of the key issues that was addressed by the heads of government at
the EAC Kampala meet is the recent illegal amendments to the EAC treaty
which have since been challenged in court by the East African Law
Society. Unfortunately, the EAC heads of state endorsed the illegal
changes in the Treaty's provisions.
The purported amendments contravened the provisions of the Treaty itself
since no wide consultations were made by the three governments. Indeed,
the net effect of such illegal amendments will be to imperil the very
life of the East African Community.
The East African Law Society is on record that the process of amending
the Treaty should be carried out according to the provisions of the
Treaty. The regional lawyers' body has noted that the amendments to the
Treaty are aimed at creating avenues in which judges of the East African
Court of justice (Eacj) could illegally be sacked, thereby undermining
the institution of justice within the Community.
Traditionally, ratification of international legal instruments such as
treaties, conventions, protocols that legally bind nations for common
purpose is the preserve of presidents and their ministers. However,
this practice `has been abused by governments that opt to ignore the
broader interests of the people they govern when entering into
international and regional treaties.
Because of these underlying problems associated with the unlimited
powers of the Executive (the presidents and their ministers) to commit
their countries to international obligations, the Kenyan parliament has
recently wrested that power from Cabinet.
In a bold move, the Kenyan parliament argued that agreements that bind
the country in whichever manner must be endorsed and ratified in
parliament by the people's elected and nominated representatives. This
should be the practice and the other member states in the community
(including Uganda) should follow suit.
It is also about time now that a general review of the East African
Treaty is carried out by the three governments in a democratic manner
involving all the peoples of East Africa.
Some of the provisions of the Treaty are contradictory in nature and
need revision.
Take for instance the issue of having the sitting justices of the East
African Court of Justice retaining their positions as judges in their
respective countries of origin. This doesn't only create a situation
where there is conflict of interest but the judges are exposed to
coercion and intimidation by the partner states. This is not good for
justice.
Next week: The law on corruption should be enforced to the letter.
The writer is a Journalist/Advocate
[EMAIL PROTECTED]
msserwanga.blogspot.com
0772 43 46 77
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