(2017) 1 African Human Rights Yearbook
175
levied is that states can join without any questions asked about their
previous human rights record.34
In Africa, both as regards courts and other co-operation, the subregional organs tend to be more active and influential than the panregional ones.35 If the all-African framework faces many challenges,
important developments can be observed in the sub-regional
integration systems36, in particular in the East African Community
(EAC)37 and the Economic Community of West African States
(ECOWAS).38 A common trend in them is that they started as regional
courts and gradually either implicitly or expressly developed a human
rights mandate. The EAC presents an interesting example of how such
systems and courts can take an active role for human rights. The EAC
consists of few states but includes some of the larger and more
developed ones in Africa. It includes a regional court among its
institutions, the East African Court of Justice (EACJ) whose mandate
is, briefly expressed, to ensure the adherence to law in the application
of and compliance with the EAC Treaty. The EACJ (like the EAC) are
not new, but rather re-established organs of the defunct East African
Community and East African Court of Appeal.39 However, despite still
being only temporarily operational (since 2001, pending that the
Council of Ministers of EAC determines if there is need for a full-time
court), the Court has become perhaps the most activist of the regional
courts.
An interesting example of this activism is how the EACJ assumed
the right to deal with human rights issues, despite this not having been
explicitly included in its competence.40 The Court made clear in the
2007 case of Katabazi and 21 others v Secretary General of the EAC
and Uganda41 that it was not going to interpret its limited competence
over human rights issues in a restrictive manner. It said:
While the Court will not assume jurisdiction to adjudicate on human rights
disputes, it will not abdicate from exercising its jurisdiction of interpretation under
34
AK Wing ‘Women’s rights and Africa’s evolving landscape: the Women’s Protocol of
the Banjul Charter’ in JI Levitt (ed) Africa: mapping new boundaries in international
law (2010) 25-26.
35 M Forere ‘Is discussion of the United States of Africa premature? Analysis of
ECOWAS and SADC’ (2012) 56 Journal of African Law 36-37.
36 For a historical analysis of the gradual inclusion of human rights into the mandate of
sub-regional integration organisations in Africa see LN Murungi & J Gallinetti ‘The role
of sub-regional courts in the African human rights system’ (2010) 7 SUR International
Journal on Human Rights 119-141.
37
The East African Community (EAC) was established, as a regional
intergovernmental organisation, in 2000. It has seven Partner States: Burundi, Kenya,
Rwanda, South Sudan, the United Republic of Tanzania and Uganda.
38
ECOWAS members are Benin, Burkina Faso, Cape Verde, Côte d’Ivoire, Gambia,
Ghana, Guinea, Guinea Bissau, Liberia, Mali, Mauritania, Niger, Nigeria, Senegal, Sierra
Leone and Togo.
39
http://eacj.org/?page_id=19 (accessed 6 July 2017).
40
A Possi ‘Striking a balance between community norms and human rights: the
continuing struggle of the East African Court of Justice’ (2015) 15 African Human
Rights Law Journal 194.
41 http://eacj.org/wp-content/uploads/2012/11/NO._1_OF_2007.pdf
(accessed
6 July 2017).
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