The Effectiveness of Community Law in Member States’ Legal Systems
One of the goals of economic integration is to foster and enhance economic freedoms within the regional economic bloc. The realisation of this goal depends in large measure on the effectiveness of community law within the legal system of the member states. The non-implementation of community law at the national level undermines economic freedoms and cross-border trade. Unfortunately, to date, this has been the experience of many regional economic communities in Africa: while noble ideals and programmes to facilitate economic freedoms are enshrined in treaties, protocols and other community laws, they have not been translated into direct benefits for persons who are resident in the various communities.
This sub-project will examine the mechanisms, institutions, practices and values that make community law effective. For this purpose, the project will draw on the founding treaties regional organisations, decided cases from national courts, the jurisprudence of regional courts established under various regional economic integration treaties, as well as academic writings.
An Assessment of Kenya’s Constitutional Framework as a Driver for Implementation of EAC Legislation
The place of the EAC law in national legal systems depends on the national Constitutions of the Partner States. Indeed, even where the Treaty states that Community laws and institutions take precedence over similar national ones, the provisions of national Constitutions still determine whether and how the Community law is accommodated in national legal systems. Some scholars have argued that the way the national Constitutions treat the Community law is one of the principal reasons for the failure of Africa’s integration process, at least to the extent that the presence of the Communities is not immediately felt at the national level. Accordingly, they suggest that African Regional Communities should explore the concepts of direct applicability and direct effect of Community law in the Partner States so as to overcome the perennial problem of States not giving or delaying giving effect to Community laws.
In the EAC, the principles stated in Articles 8(2) and 8(4) of the EAC Treaty and those elaborated by the EACJ, most notably in the Kyahurwenda case, suggest that conflicts between Community Law derived from its various sources and national law are resolved in favour of the former. Through this, the interests of the Community are protected, the uniformity of application is ensured and conflicting national interpretations are avoided. The EAC Partner States therefore need to appreciate the fact that integration makes Constitutional demands and, on some issues, requires a rethink or amendment of Constitutional or legislative provisions to accommodate Community law and enhance the integration process. In Kenya, the vibrant civil society has been instrumental questioning the national government and demanding increased transparency and accountability of the law-making processes. This is likely to affect the law-making process on the EAC level, which is currently mainly driven by the executive branch with only little participation of parliament and the devolved government units (the Counties).
The research questions:
How can the existing constitutional framework in Kenya be used to ensure timely and accurate implementation of the EAC-law?Is there need for reform of Kenya’s constitutional framework in order to ensure adequate implementation of community law?How can the increased participation of Parliament and the Counties in the EAC decision making processes improve the implementation of the EAC-law in Kenya?
Integration Process and the Land Question in the East African Community: Challenges and Prospects from Partner States Legislation
Article 5(2) of the Treaty for the Establishment of the East African Community (the Treaty) stipulates that Partner States shall undertake to establish a Customs Union, a Common Market, a Monetary Union and a Political Federation. Regarding the Common Market, the Community has enacted the Protocol on the Establishment of the East African Community Common Market (the Protocol). Article 15(1) of the Protocol clearly stipulates that access to and use of land and premises shall be governed by the national laws and policies of the Partner States.
From the above, it is clear that land is not a common market item as it is left to be dealt with in accordance with laws and policies of Partner States. To that end, each partner state may chose the manner in which land can be accessed and used by nationals of other partner states. Taking into account the fact that the ultimate goal of the Community is to have a Political Federation, there is a need of having a clear Community legal framework on land matters.
This research project shall address one major legal question: Which challenges and prospects are posed by partner states’ legislation towards making land a Common Market item? In addressing the main question, three minor questions shall be used: First, what is the relevance of land in the integration process?Second, how is the question of land treated by Partner States’ legal frameworks? This question aims at unveiling whether the said frameworks give any prospects or pose any challenges to the integration process.Third, how can the identified prospects be used to address the challenges, if any?
Judicial Practice, Decisions Circulation and Juridical Integration in the OHADA space
The Organisation for the Harmonization of Business Law in Africa, in French Organisation pour l'Harmonisation en Afrique du Droit des Affaires (OHADA), created in 17.10.1993 by the Treaty of Port-Louis revised in Québec, Canada in 17.10.2008, is composed of 17 African states. Its primary purpose is the juridical and judicial integration to create favourable conditions for the business environment. This goal is laudable for a number of reasons:
- identifying the applicable law in most of the states involved was uncertain; and where there is uncertainty there is no law;
- the uncertainty of applicable law also contributes to judicial insecurity;
- juridical and judicial insecurity reduces the legitimate trust of citizens in institutions;
- juridical and judicial insecurity negatively affects private initiative, consequently investments.
To overcome these weaknesses the harmonization of business law is initiated through the elaboration of Uniform Acts and the creation of a supranational jurisdiction of cassation (the Common Court of Justice and Arbitration – CCJA). The CCJA is in charge of the unicity of application and interpretation of the harmonized law.
Although the harmonized law is purportedly clear and accessible, the judicial practice is not. The CCJA activity is not sufficient to remove this uncertainty. The member states’ domestic courts are competent in first instance and appeal (Article 13 of the Treaty) to apply OHADA law according to their own national procedural rules and modus operandi. As a result of this, the quality of the decisions can suffer. This most likely explains the general requirement of exequatur, even for decisions that apply OHADA law. However, this requirement probably hinders the juridical integration.
Regional Integration through the Recognition and Enforcement of Foreign Judgments: A Critical Assessment of the Law and Practice in the East African Community
Africa has a number of Regional Economic Communities (RECs). These RECs face economic, political, social and legal challenges. One such legal challenge for the East African Community (EAC) concerns the harmonisation of the legal frameworks relating to the recognition and enforcement of foreign judgments in the Partner States. They have different legal frameworks rooted in their different colonial histories with little or no compatibility between them, resulting in lack of uniformity and uncertainty. It is posited that legal certainty through a harmonised legal framework in the Partner States is crucial for the realisation of the freedoms envisaged by the EAC.
These sub-project therefore, aims to:
1. Examine the law and practice relating to the recognition and enforcement of foreign judgments in the EAC Partner States.
2. Examine the impact of the law and practice relating to the recognition and enforcement of foreign judgments in the Partner States on the process of regional integration in the EAC.
The following research questions will guide the project:
1. What is the law and practice regarding the recognition and enforcement of foreign judgments in the EAC Partner States?
2. What is the impact of the law and practice regarding the enforcement and recognition of foreign judgments in the EAC Partner States on EAC integration?
Recognition and Enforcement of Foreign Judgements within Regional Economic Communities
This project addresses an important question which fundamentally affects the function and value of regional courts to dispute resolution in Africa. It proceeds on the hypothesis that judgments of regional courts are not readily or easily enforceable and asks the pertinent question: how can judgments of regional courts be better enforced? Empirical research was directed at interviewing practitioners and judicial staff within the regional court systems of the East African Court of Justice (EACJ) as well as the ECOWAS Court of Justice (ECJ). Findings point to a combination of legal, administrative and institutional steps that may be instrumental to making regional court jurisprudence more effective in real terms through the recognition and enforcement of regional court judgments. Feasible measures include the development of enabling instruments, monitoring mechanisms to track the levels and patterns of compliance with judgments of regional courts, adequate staffing and staff training as well as court structure and logistical issues that affect court accessibility, all of which require considerable dedicated budgets.
Implementing the East African Community Legislative Frameworks on Environment and Natural Resources Management
The East African Community (EAC) is an intergovernmental regional economic community comprising of six Partner States, namely the Republics of Burundi, Kenya, Rwanda, Uganda, South Sudan and United Republic of Tanzania. These States are endowed with diverse natural resources. They also share some resources such as water sources and wildlife. The EAC came into existence upon signing of the Treaty for the Establishment of the East African Community, 1999. This Treaty provides for cooperation of the Partner States in all walks of life including management and sustainable utilization of natural resources and the environment.
The EAC has in place a Protocol on management of environment and utilization of natural resources (the Protocol). The Protocol requires the integration of the policy, legal and institutional frameworks both at regional and municipal levels. This is because of the fact that the linkage between regional law and municipal laws on environmental management and sustainable utilization of resources is critical to sustainable conservation for the resources. Further to this directive, each Partner State has made some effort to tailor its policies, laws and institutions to comply with the objectives of the EAC. Literature on the extent to which EAC laws are implemented in Partner States with regard to the natural resources utilization and environmental management as directed by the Protocol is scanty and difficult to come by. This Chapter makes an analysis of the adequacy of the legislative initiatives that the EAC Partner States have taken to implement the clarion call by the EAC Treaty to coordinate their joint efforts in ensuring sustainable management of environment and natural resources in the region. The analysis does not cover all the five EAC Partner States. It has purposefully been confined to Kenya, Uganda and Tanzania. This bias has been necessitated by a number of factors, including historical underpinnings in the evolution of the EAC and limitation of time and resources.
Data for the study was obtained from field work in the select Partner States where interviews conducted with identified key informants in Kampala, Nairobi, Dar-es-Salaam, Arusha and Dodoma. Respondents were probed on a wide range of issues. These included the extent to which domestic legislative and institutional regimes accommodated the EAC Community law in environmental protection, and initiatives that have been put in place at the regional level to ensure implementation of the Protocol. Factors that they considered could impact on the realization of the sustainable management and utilization of natural resources in EAC Partner States were also probed into. A review of the available literature on the subject, including a critical analysis of the relevant policy, institutional and legislative frameworks was also undertaken.
The overall findings suggest that concerted efforts have been made by the select EAC Partner States in implementing the objectives of the Protocol. However, these initiatives have encountered diverse challenges which have been identified and discussed. Recommendations on how the challenges could be overcome have been put forward. It is hoped that the study will provide impetus and insights on more comprehensive studies, covering the subject in all the five Partner States of the EAC.
Did the Customs Union of the East African Community Increase Overall Trade of Kenya, Tanzania and Uganda?
Economic science has consistently shown that higher trade openness is associated with higher levels of income expressed in terms of Gross Domestic Product. The link between trade openness and income per capita is even likely to run causally from trade to income. Income per capita is known to be strongly associated with numerous outcomes considered to be welfare enhancing, such as low child mortality, high life expectancy and even life satisfaction.
This project explores whether the customs union of the East African Community (EAC) has increased overall trade per capita for the EAC’s founding members Kenya, Tanzania and Uganda. Thereby, it does not focus on internal trade within the EAC but overall trade, i.e. trade inside the EAC and external trade. We focus on overall trade for each of the founding members as welfare gains due to trade would stem from an overall increase in trade. To investigate potential causal effects of the customs union on overall trade per capita, we employ the Synthetic Control Method.
Our empirical evaluation does not yield statistically relevant positive effects of the customs union on trade per capita for Kenya, Tanzania and Uganda. While trade has increased over time for all founding members of the EAC, there seems to be no additional trade increase due to the EAC. If anything, our point estimates suggest lower trade per capita for Kenya in comparison to the synthetic control group for all years after the establishment of the customs union, but the error margin of these estimates is high. A potential substitution of tariff barriers with non-tariff barriers and a lack of de facto implementation of the EAC’s agreements might explain the absence of additional trade creation for the EAC founding members. Further research in this domain is necessary to ensure trade gains for the future of the EAC.
