Common Market Protocol

The Economic Partnership Agreement between the Republic of Kenya and the United Kingdom of Great Britain and Northern Ireland (Kenya-UK EPA) was signed by both parties on 8th December 2020. Unlike the proposed US-Kenya FTA (whose fate is uncertain under the new Biden administration), this agreement is at an advanced stage and there are many indications that it will enter into force as it has been approved by the Kenyan executive and only awaits parliamentary approval and ratification.

Since Kenya had made commitments, it is not far fetched to argue that non observance of these commitments especially regarding trade in legal services offends the EAC Treaty. This brings in the issue of remedies available at the East African Court of Justice. It is time this issue was addressed by the  East African Court of Justice (EACJ).

What emerges from this case law is a unitary system of sources of law, with the EACJ having the power to police their hierarchical compatibility and invalidate a lower-ranking norm if it contradicts a higher-ranking one. Such an arrangement is typical for federal states; the EACJ positions itself as a guardian of hierarchical compatibility of norms within the federal system, and consequently as a constitutional court within such a system.