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Dispute settlement in the East African Community (EAC)


Dispute settlement in the East African Community (EAC)

Dispute settlement in the East African Community (EAC)

The EAC is a regional intergovernmental organisation of Burundi, Kenya, Rwanda, South Sudan, Tanzania, and Uganda. The EAC, among other things, aims to widen and deepen cooperation among member states in, inter alia, economic and social areas for their mutual benefit (Art. 5.1 of EAC Treaty). Cooperation in trade liberalization and development is one of the fundamental pillars of the EAC. Member states have committed to establish a Customs Union (CU), a Common Market (CM), and a Monetary Union (MU).

The EAC CU was established in 2005. That is, member states ‘have agreed to establish free trade (or zero duty imposed) on goods and services amongst themselves and agreed on a common external tariff (CET), whereby imports from countries outside the EAC zone are subjected to the same tariff when sold to any EAC Partner State’.[1]

The EAC adopted a CM Protocol in 2010, and its implementation continues. Meanwhile the EAC is also in the process of establishing the MU. The member states adopted and signed the East African Monetary Union in 2013. The Protocol outlines a 10-year plan and even allows EAC partner states to progressively converge their currencies into a single currency in the Community. Art. 6 of the EAC Treaty provides for the fundamental principles that governs the achievement of the EAC objectives. The principles include settlement of disputes and good governance including adherence to the principles of democracy, the rule of law, accountability and transparency.

Art. 23 of EAC Treaty has established the EAC Court of Justice as judicial organ of the Community to ensure the adherence to law in the interpretation and application of and compliance with the Treaty. The Court comprises two divisions: First instance division and the appellate division. It has jurisdiction to hear matters the interpretation and application of the EAC Treaty. The EAC Court adjudicates disputes between state parties, non-state actors (legal and natural persons) and state parties, the Community and its employees as well as the Secretary General and state parties concerning the interpretation and application of and compliance with the Treaty (Arts. 28-21 of EAC Treaty). Private parties are, in their own right, entitled to legal remedies when their rights within the EAC Treaty are infringed upon and they suffer the consequences.

Further, the EAC Court has arbitral (and advisory)[2] jurisdiction. Art. 32 of the EAC Treaty gives the Court jurisdiction to hear and determine any matter: ‘(a) arising from an arbitration clause contained in a contract or agreement which confers such jurisdiction to which the Community or any of its institutions is a party; or(b) arising from a dispute between the Partner States regarding this Treaty if the dispute is submitted to it under a special agreement between the Partner States concerned; or (c) arising from an arbitration clause contained in a commercial contract or agreement in which the parties have conferred jurisdiction on the Court’. Such jurisdiction may be conferred upon it at any time by the EAC Council of Ministers and has been extended to cover trade and investments disputes.[3] The EAC Court’s judgments are enforced and executed at the national level by member states.

The EAC Court has jurisdiction to interpret disputes arising out of the Protocols establishing the EAC CU and CM, since they are integral parts of the EAC Treaty. The Protocols provide for dispute settlement mechanisms. The CU Protocol Regulations on Dispute Settlement Mechanism ensure uniformity among member states in the implementation of the provisions on dispute settlement and to ensure that the process is transparent, accountable, fair, predictable and consistent with the provisions of the Protocol.[4] With regard to trade remedies – anti-dumping measures, countervailing duties, and safeguards – for example, the Regulations provide for two different tracks of dispute settlement.[5] First, disputes can be settled using good offices, conciliation and meditation. If not successful, the Committee on Trade Remedies can then be requested to establish a panel. The panel then presents a report with recommendations to the Committee, which makes final determinations on the matter that are final and binding on the parties. Disputing parties may have recourse to arbitration.

In 2013, the East Africa Law Society challenged, before the EAC Court, the consistence of Art. 24 of the CU Protocol and Art. 54 of the CM Protocol with the EAC Treaty.[6] Art. 24 of the CU Protocol establishes the EAC Trade Remedies Committee to handle matters pertaining to rules of origin, anti-dumping, subsidies and countervailing measures and safeguard measures. Art. 54 of the CM Protocol provides that national constitutions, laws and administrative procedures, and competent national authorities shall handle disputes under the CM. The EAC Court ruled that the dispute settlement mechanisms created under these Protocols do not exclude, oust or infringe upon its interpretative jurisdiction; and that challenged provisions are not inconsistent with the EAC Treaty.

[1] See https://www.eac.int/integration-pillars/customs-union

[2] Art. 36 of the EAC Treaty.

[3] See http://repository.eac.int:8080/handle/11671/546

[4] See https://www.eac.int/customs/customs-regulations/dispute-settlement

[5] See an earlier tralac Discussion on this issue: https://www.tralac.org/discussions/article/7222-optimising-the-dispute-resolution-process-for-trade-remedies-in-the-eac.html

[6] See The East African Law Society Vs The Secretary General of The East African Community http://eacj.org/?cases=the-east-african-law-society-vs-the-secretary-general-of-the-east-african-community.

About the Author(s)

Talkmore Chidede

Talkmore Chidede holds a Doctor of Laws (LL.D) degree in International Investment Law from the University of the Western Cape. Talkmore also holds a Master of Laws (LL.M) degree (Cum Laude) in International Trade and Investment Law and a Bachelor of Laws (LL.B) degree, both from the University of Fort Hare. His research interests include international investment law, international trade law, regional economic integration and international commercial arbitration.

Louis Gitinywa

Louis A Gitinywa is a law consultant within the Strategic Investment Unit at Cabinet Karangwa & Associés. He is involved in advising both local and international clients on investments, regulations, and a range of transactional and court litigation related, in particular, to trade matters. Previously, he worked as a Public Prosecutor in Rwanda National Public Prosecution Authority. He is a member of the Rwandan Bar Association, the East African Law Society (EALS), and is also a tralac network member. He holds an LLM in Trade and Regional Integration from the University of Dar Es Salaam, Tanzania and a Postgraduate Diploma in Legal Practice from the Institute of Legal Practice and Development (ILPD-Nyanza), Rwanda.

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