Jurisdiction

I immensely enjoyed reading Dr. Mbori’s piece in Afronomicslaw titled ‘Hidden in Plain Sight: Kenyan Supreme Court Shooting is own Foot on Merits Review and Appellate Jurisdiction in Continuing Supremacy Battle with the East Africa Court of Justice (EACJ). I now have the pleasure of partially disagreeing with him particularly on whether the EACJ has (merit) review jurisdiction over national laws. This comment is not an attempt at exhaustively analysing the Supreme Court Advisory Opinion in Reference No. E001 of 2022. I found that Advisory Opinion to be surface-level, a bit incoherent and internally inconsistent, and devoid of adequate reasoning. As such, I refrain from commenting on other key issues in the Advisory Opinion. Some of those issues are: how the Court determined that it has jurisdiction to issue the opinion; the relationship between international and municipal law; the Court’s repeated failure to distinguish sources of international law and their interaction with municipal law; the court’s (misplaced) discussion on subsidiarity and margin of appreciation, and the apportionment of interpretation and application functions between the EACJ and domestic courts. Rather, my comment is restricted to the question of whether the EACJ has (merit) review jurisdiction over national laws, which the Supreme Court answered in the negative and which Dr. Mbori answers in the affirmative. I partially disagree with both the Supreme Court and Dr. Mbori, but for different albeit related reasons.

Three years ago, at the heart of the COVID-19 pandemic, I wrote an entry in this blog on the Martha Wangari Karua vs. Attorney General of the Republic of Kenya (Martha Karua case) in the East Africa Court of Justice (EACJ) First instance division titled: The EACJ First Instance Court Decides Martha Karua v Republic of Kenya: The Litmus Test for EACJ Jurisdiction and Supremacy. In that case, the First Instance division found that the Respondent State through the actions of its Judiciary (Supreme Court) had violated its commitment to the fundamental and operational principles of the EAC, specifically the principle of the rule of law guaranteed under Article 6(d) and 7(2) of the EAC Treaty. The court had found that Martha Karua’s right to access justice was violated and it issued a historic award for general damages in the sum of $ 25,000 to the applicant at a simple interest rate of 6% per annum. Since then, I contend that there is a supremacy battle between Kenya’s apex municipal court and the EACJ in two specific arenas. The first was Kenya’s appeal of this decision in the EACJ Appellate division which categorically dismissed the appeal with costs to the Appellant in February of 2022. The second venue for this ongoing conflict is in the Supreme Court of Kenya where Kenya’s Attorney General filed a reference for an advisory opinion reference that many observers saw as the aftermath of the Martha Karua case. This is the long awaited advisory opinion judgement that was issued on 31 May 2024 and forms the basis of this piece.

The result of combining international law and national law lecture materials by adopting legal issues at the local level turned out to be very interesting for Pattimura University students in their study of international law. This also motivated them to be more diligent in attending international law classes.

Legal education has begun in Myanmar since 1878 under the administration of British Colonial Government. Rangoon (Yangon) College was founded as an affiliation of Calcutta University (CU), India in 1884-1885. British Government passed the University of Rangoon Act in 1920 through which the University of Rangoon was founded and has come into existence.

To mark the 2020 International Women’s Day, Afronomicslaw celebrates Dr Bolanle Adebola’s brilliant contributions to corporate insolvency law. Dr Adebola is a Lecturer in Law at the University of Reading and Convenor, Commercial Law Research Network Nigeria. Her thought-provoking research has generated robust discussions in Nigeria and the United Kingdom.

A consideration of how Africa can fit into a global system of recognising and enforcing foreign judgments is important. However, it is also important for African countries to consider the extent to which their local jurisprudence can support an external system subject to domestic ratification. If African countries need a convention to improve their local jurisprudence in any significant manner, then sustainable development in this area of law may be more challenging than necessary.

African countries can, and should facilitate, access to international arbitration by their citizens whose interests are harmed by foreign investors by procuring investors’ consent to such arbitration, and by including in their IIAs investor obligations. Allowing HSCs to be able to seek remedies through international arbitration has a number of benefits.

In order to address a scenario where a AfCFTA member might resort to the WTO and still want the dispute to be resolved under the AfCFTA’s dispute resolution protocol, then this article proposes that the latter Protocol should be amended to the effect that, matters raised in the WTO context and in AfCFTA’s context should be considered not to be the same.