ast African Court of Justice (EACJ)

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.

This analysis dives deep into the Somalia's admission to the East Africa Community (EAC), with the objective of dissecting the admission procedure and analyzing Somalia's Accession Treaty, while scrutinizing the EAC Verification Mission Report. It was noted that while the EAC Treaty declares key principles like good governance, people-centeredness, transparency, and democracy, the specific procedures and rules that it provides for, do not do justice to those principles. This blog therefore, calls for a reform of the EAC institutions by moving the institutions further away from elitism and bureaucracy and bring it closer to the people-centeredness envisaged by the Treaty.

While exercising constitutional function, one  may suggest the use of some avoidance tactics discussed here. Doing justice in individual case might require court orders with robust remedies. How to master the splits? Clearly, the book does not only answer such pertinent research questions, it also opens new fields for research. It is a must read for everybody interested in regional integration, constitutional law and access to justice in Africa.

Despite the existing EAC legislation, citizens continue to face challenges to movement of goods and persons across the borders. The ability of EAC citizens to enforce these trade commitments has been grossly underused, and such disputes have been referred to diplomatic means for resolution. It can only be hoped that moving forward, more persons will seek legal redress for such disputes.