Assessment of the Ways, Methods and Effectiveness of Current Harmonisation of Law Initiatives within African RECs
In the wake of the Uganda High Court case of Nairobi Java House Ltd versus Mandela Auto Spares Ltd,
Civil Appeal No. 13 of 2015, business persons across the East African Community (EAC) are weary of the likelihood of similar cases coming up which ultimately question the cross-border strength of presumably strong domestically registered trademarks. The Common Markets Protocol under the EAC serves the purpose of encouraging free movement of goods and services across the EAC borders. As a result of such free movement, a few foreign goods and services in EAC trade are entering into and creating conflicts in local economic environments hitherto dominated by similar trade in goods and services. This is especially so where the registered trademarks for the foreign and local parties have glaring similarities. As such, the Nairobi Java House case, and a few others with related characteristics, have revealed the underlying challenge in spreading goods and services across the EAC where conflicts emerge in trademark deception. In such scenarios, the Judiciary and other stakeholders are likely to continue wrestling with the decision as to whether to side with domestic Intellectual Property legislation that protects their own, or to rely on the EAC regulatory perspective which appears to favour the foreign entrant in the local market under the guise of fostering (as opposed to frustrating) free cross-border movement.
An ideal Regional Economic Community regulatory environment creates harmony by specifically
giving consideration to both local and cross-border intellectual property protection while advocating for free movement of goods and services. Although the EAC Common Market Protocol encourages cross-border trade in goods and services, there is no adequate or harmonic avenue through which conflicts in trademark ownership can be avoided or effectively resolved. This therefore requires addressing a harmonisation of EAC trademark protection laws so as to restore confidence in the system amongst all stakeholders.
Research question
How can the EAC implement an adequate and well harmonized trademark protection mechanism for
cross-border goods and services in the region?
Fostering Mobility through Mutual Recognition of Academic Qualifications: The Role of the Inter-University Council for East Africa
Mutual recognition of academic and professional qualifications is extremely important in attaining a successfully integrated labour market. This is particularly important in the EAC where national qualification systems, education and training of the members are quite diverse and in some cases are regularly subjected to changes to respond to national specific demands. It is in this context, the EAC Partner States when adopting the Common Protocol in 2009 made steady commitments of their intent to have mutual recognition of academic and professional qualifications and to harmonies their curricula, examinations, standards, certification and accreditation of educational and training institutions so as to facilitate movement of workers in the regional labour markets.
This sub-project takes stock of the existing situation and interrogating the opportunities and challenges encountered by member states while also drawing lessons from other regional blocks.
Integrating Professional Services in the East African Community through Mutual Recognition Agreements: the State of Play
The East African Community (EAC) adopted a phased regional integration process, namely from a Customs Union, a Common Market, a Monetary Union and a Political Federation. Under the East African Community Common Market Protocol, which entered into force on 1st July, 2010, the Partner States committed, among others things, to liberalise trade in services. The liberalization of trade in services was to be done progressively, following Annex V to the Protocol. Restrictions to market access and to national treatment principle applicable in each Partner States, at the time of the adoption of the Protocol, were identified for each service sector and commitment made to remove them no later than 2015.
While the Partner States are still in the process of amending the relevant national laws to give effect to cross border professional services, a number of Regulatory Bodies of professional services have concluded Mutual Recognition Agreements (MRAs). This is the case for the professions of Architecture, engineers, accountants, legal profession, doctors and dentists. For other professions such as surveyors, veterinary and para-veterinary, nurses and midwifes, pharmacists, negations of MRAs are yet to be concluded.
This sub-project will focus on areas of professional services committed to liberalization by EAC Partner States in which MRAs have been concluded by the Regulatory Authorities or Bodies. The research will answer the question as of to what extent has this mechanism of integration so far contributed to the harmonisation of the different national legal and regulatory frameworks governing the concerned professional sectors in the Partner States, and most importantly to the effective cross-border movement of services and services suppliers.
The State of Cyber Protection of the Consumer in the East African Community
This sub-project will cover the state of cyber protection of the consumer in the East African Community (EAC). To score the relevance of the topic to economic integration, the study discusses the role of cyber protection of the consumer to the promotion of the EAC integration. For a wide EAC information-rich-study, the researcher will delve into identification of the different cyber laws in four EAC Member States, specifically, Kenya, Rwanda, Tanzania and Uganda and examine how they contribute to the EAC.
The main guiding research question of the project is; What is the state cyber protection of the consumer in the EAC?
The other questions to guide the study are: What laws exist on cyber protection of the consumer within the East African Community; and What is the role of a harmonised legal system for cyber protection of the consumer in the EAC integration processes?
The research questions thus seek to find viable answers to the state of cyber legislation across the region and its contribution to the EAC integration process. Given the scope of the study, the researcher will employ a qualitative approach to the study.
Economic integration within the EAC cannot be achieved without the support of company law. Not only because companies are the beneficiaries of integration, but because they are indispensable vehicles for economic development which is the main goal of economic integration. Our research shows, however, that the company laws of the Partner States differ from one another quite substantially. This is problematic for two reasons: First, from the perspective of a common market, legal differences should be an exception rather than a rule. Second, high disparities among the Partner States produce the need for legal advice which leads to higher transaction costs. As a result, expanding a business from one EAC Partner State into another seems unattractive.
We argue that in order to smoothly achieve the goals of integration, the existing differences in the company laws require harmonisation. We identify some important areas for harmonisation, namely the registration procedures, especially regarding single shareholder companies, subsidiaries and branches, as well as company management and corporate governance. All of these areas are crucial for harmonisation processes because of their important role for cross-border business expansions. Besides, we name certain factors, which are the drivers for harmonisation of company laws. We also identify the steps taken so far by the EAC Partner States towards harmonisation and approximation of company laws as well as the drivers for the harmonisation of company law as a component of implementation of the EAC-CMP. The political and economic interests of the EAC Partner States in the harmonisation of company law are also examined. In addition, we attempt to identify challenges and opportunities experienced in the process of harmonisation of company laws.
Apart from identifying challenges for harmonisation, the study found out that the existence of factors such as the EAC institutions the EAC legislative tool in Rwanda, availability of similar investment institutions in the EAC, the positive view on the introduction of the EAC limited liability company and prevalence of common law in the EAC Partner States are the existing opportunities for harmonisation of company laws. We recommend active role play by the EAC institutions, modernisation of company laws, adoption of the common concept on limited liability companies, adoption of preferential treatment of companies registered in the EAC Partner States and removal of restrictions on the formation of branches in respect of companies registered in the EAC Partner States, among others.
Towards a Low Carbon Future: Assessing Avenues for Translation/Transposition of EAC Climate Change Policies, Laws and Regulation
The twin concerns of regulating climate change and spurring economic development seem antithetical to each other. Legislative measures aimed at curbing climate change are often construed as a damper on economic development with the effect that such laws pose a competitive disadvantage for national economies and companies. Conversely, with the ascendancy of renewable energy technologies, it is increasingly becoming clear that ‘laws to tackle climate change are leading to greater resource and energy efficiency, clean, low carbon growth and improved energy safety
The EAC boasts a plethora of climate change policy, legal and regulatory framework that if well implemented can constitute the silver bullet which secures energy efficiency, economic prosperity and mitigates pernicious effects of climate change within the EAC. Climate change regulatory framework at the EAC level include: the EAC Climate Change Policy (EACCCP); the EAC Climate Change Strategy (EACCCS); and the EAC Climate Change Master Plan (EACCCMP) which are all ‘distinct but complimentary.’
Partner states have also developed climate change regulatory framework that include: the Climate Change Act 2016, Kenya; the National Climate Change Policy 2015, Uganda; the National Climate Change Strategy 2012, Tanzania; and the National Strategy on Climate Change and Low Carbon Development 2011, Rwanda. It must however be borne in mind that economic concerns within the EAC such as the efficient working of the Common Market tend to enjoy a comparatively higher priority vis a vis regulation of pressing environmental issues such as climate change.
The question that this sub-project therefore raises then is:
What level of priority does the EAC accord implementation of its budding climate change regulatory framework, and how is this framework translated or transposed by partner states in lighting of existing national regulatory framework?
The foregoing question will subsequently be broken up into constituent research questions as the research progresses. The research proposes an inquiry into the framed question by employing a law in context approach which proceeds from an interdisciplinary premise and involves both desktop review of relevant documents, questionnaire surveys and field interviews within the EAC Partner States and relevant institutions.
Harmonisation of Customs Law in the East African Community
The following research activities will be undertaken in pursuit of the study objectives:
Assessment of the ways, methods and effectiveness of current harmonisation of law initiatives within EAC in the field of Customs Law. This will entail the examination of processes and methods of harmonisation of regional legal instruments in the EAC Partner States and their effectiveness in the text of Article 8 (2), (4) and (5) of the Treaty, which requires Partner States to secure the enactment and effective implementation of such legislation to give effect to the treaty. The specific focus will be on legal instruments particularly treaties, protocols, Acts, regulations and directives, as well as the legislative processes of ratification and alignment of the national laws with regional obligations.
Identification of areas for which new laws could be developed in line with obligations under the respective regional obligations in a given Partner State.
