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EALS Asks Court to Nullify Protocol Provisions on Dispute Settlement

By East African Court of Justice (EACJ)
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ARUSHA, Tanzania, May 7, 2012/African Press Organization (APO)/ -- The East African Law Society (EALS) wants the EACJ to declare null and void two protocol clauses that legislate the settlement of disputes in the Customs Union and Common Market respectively, citing what it claims are inconsistencies with various provisions of the EAC Treaty.

In a reference heard today by the Court's First Instance Division, EALS sought to challenge the validity of Article 24(1) of the EAC Customs Union Protocol and Article 54(2) of the EAC Common Market Protocol, arguing that they are inconsistent with or contravene Articles 5 (1), 27(1), 33(2) 38 (1) and others, of the Treaty.

The regional bar association contends that the said articles “purport to exclude” the Court's jurisdiction to resolve disputes arising from implementation of the two protocols and wants the EACJ to strike them out.

Prof. Fredrick Ssempebwa, representing the lawyers' body, prayed Court to grant the declaration sought in the reference as “the best way” to ensure that Community law develops in East Africa. He argued that EACJ's jurisdiction cannot be excluded as the protocols are integral parts of the Treaty and that by excluding the jurisdiction of the Court the two protocols in effect illegally amended the Treaty.

He further submitted that it is a Treaty violation for decisions of the Committee on Trade Remedies as per Article 24(1) of the Customs Union Protocol to be final, and challenged as a Treaty violation Article 54(2) of the Common Market Protocol which provides jurisdiction to the Partner States to resolve disputes arising from implementation of the Common Market “in accordance to their constitutions, national laws, and administrative procedures”.

Prof. Ssempebwa argued that it was absurd to cut out the EACJ's jurisdiction and disperse it to the Partner States' internal mechanisms as this would deny East African citizens a unifying Community-wide mechanism which the EACJ should be.

Representing the Secretary General of the East African Community, Hon. Wilbert Kaahwa (Counsel to the Community) however submitted that the jurisdiction which EALS claims was ousted does not in fact exist until such a time when the Court's jurisdiction is extended. On this premise Hon. Kaahwa reasoned that the said articles do not contravene the Treaty.

The Court will deliver its judgement on notice.