Politics and policy
Lawyers urge caution on role of expanded regional court
Posted Sunday, August 19 2012 at 16:22
Legal experts are urging caution as the East African countries prepare to extend powers of the regional court of justice to cover individual and commercial disputes.
The five EAC states are discussing at national levels to agree on the powers of their courts to be ceded to the East African Court of Justice (EACJ) as regional integration gets to higher stages.
“It makes sense to expand the jurisdiction of the EACJ to serve its appropriate role in, and to contribute to, the integration process,” says Mr David Lekerai, senior associate at Iseme, Kamau & Maema Advocates.
“But various factors such as need to retain sovereignty of the member states, appropriateness of the forum and whether EACJ should have concurrent jurisdiction with municipal courts would all need to be considered.”
Similar calls for caution have come from the private sector in Kenya which feels some individuals and institutions were likely to take advantage of expanded powers of the regional court to frustrate course of justice at national levels.
“For an entity domiciled in one of the partner states but has operations across national borders, it makes sense to resolve disputes at a regional court but its limits and powers must be clearly defined to avoid conflict with national courts,” said Patrick Obath, chairman of the Kenya Private Sector Alliance.
At the EAC Media Summit in Kigali two weeks ago, EACJ President Justice Harold Nsekela said the regional court could only handle inter-state disputes arising out of the interpretation and application of bloc’s founding treaty.
Justice Nsekela - citing article 51 of the EAC Treaty – said the rights handed to EAC citizens and businesses by customs union and common protocols remained largely unenforceable as treaty only had jurisdiction over inter-state organs.
Within the region, however, it is acknowledged that increased interaction among citizens, businesses and national regulatory due to regional integration has the potential of breeding conflicts that need to be resolved judicially.
“The association between persons, be they natural, artificial or states, have the potential of resulting in conflicts of different types and at various levels,” Said Mr Lekerai, adding that it was prudent to expand the jurisdiction of the regional court.
Kenya had initially indicated it would meet last week to come up with a national position regarding the changes it wants in the mandate of EACJ but the Attorney General’s office pushed forward the consultations to this week.
In its present form, Kenyan firms that have gone regional have been forced to file cases involving interpretation of customs union protocol at the partner state whose regulator is involved.
For instance, while customs taxes are now treated as regional matter, Bidco Oil Refineries has recently been forced to move to Kenya’s High Court to contest a Sh1.3 billion import tax dispute with Kenya Revenue Authority.
“At the moment, the only way we can intervene in disputes pitting individuals and firms against state agencies is through arbitration in cases where reference is made to us by a partner state or,” Mr Nsekela told journalists and media practitioners in Kigali.
But the more citizens and firms cross national borders in the hope of accessing land, employment, capital and premises in partner states, the more an independent regional court rather than national ones will be needed.