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Educate Kenyans on regional courts

By Pravin Bowry | May 27th 2015

Many litigants who have lost cases in the highest national courts are resorting to seeking redress in regional courts.

Seven Court of Appeal and High Court judges who were removed by the Judges and Magistrates Vetting Board lost their battle to remain in office both in the High Court and Court of Appeal and are now reported to be moving their cases to East African Court of Justice (EACJ).

The move is likely to raise interesting legal questions on jurisdiction with regard to our court system. The Ogiek community moved to the African Court on Human and Peoples' Rights (ACHPR) to seek redress for being evicted by the Government from their ancestral land in the Mau forest region and the court heard their case on the basis that it evinces serious and mass human rights violations. Some Kenyans who were arrested in Mozambique nine years ago have moved the case to the ACHPR for determination.

The EACJ was established by Article 9 of the Treaty for the Establishment of the East African Community. The Court was inaugurated on November 30, 2001 after the appointment of the first Judges by the Summit of Heads of States.

The jurisdiction of the EACJ is mainly interpreting and enforcing the treaty establishing it, which came into force on July 7, 2000. As per Article 27 of the Treaty, the Court shall have such other original, appellate, human rights and other jurisdiction as be determined by the Council.

The EACJ is presently constituted of two Divisions namely the First Instance Division and Appellate Division. The former is at any given time composed of not more than 10 judges whereas the later is comprised of five Judges.

The court does not have jurisdiction to hear cases relating to human rights but the EACJ has addressed cases involving individual rights. In the case of Katabazi v Secretary General of the East African Community, the EACJ was petitioned to determine the lawfulness of the detention of Ugandan prisoners.

The EACJ conceded that "jurisdiction with respect to human rights requires a determination of the Council and a conclusion of a protocol to that effect. Both of those steps have not been taken. It follows, therefore, that this Court may not adjudicate on disputes concerning violation of human rights per se".

However, the EACJ has determined it will not abdicate from exercising its jurisdiction of interpretation under Article 27(1) merely because the reference includes allegation of human rights violation. While the EACJ did not evaluate the claims within a human rights framework, they found that the respondent had violated the principle of the rule of law and consequently contravened the Treaty.

The jurisdictional ambits of EACJ include matters relating to East African Community member states, national courts of EAC member states on the question of Treaty interpretation or determination of legality of a Community law or action and legal or natural persons as long as they are residents of East Africa. The African Court on Human and Peoples' Rights is another regional court established for protection of human and peoples' rights in Africa. The court has jurisdiction over all cases and disputes submitted to it concerning the interpretation and application of the African Charter on Human and Peoples' Rights, the Protocol and any other relevant human rights instrument ratified by the States concerned.

Under Article 3 of the Protocol, the Court has jurisdiction to deal with all cases and disputes submitted to it regarding the interpretation and application of the Charter, the Protocol and any other relevant human rights instrument ratified by the concerned States. It receives complaints and/or applications from either the African Commission of Human and Peoples' Rights or State parties to the Protocol or African Intergovernmental Organisations.

Another regional court is the Common Market for Eastern and Southern Africa Court (Comesa), established pursuant to the provisions of Articles 7, and 19 to 36 of the Treaty establishing the Common Market for Eastern and Southern Africa. Comesa is mainly charged with settling disputes arising under the Comesa Treaty as between Comesa's member states, secretary general, individuals and corporations. Its jurisdiction is commercial on issues regarding the treaty. Under Articles 104 of the Treaty and 7 of the Common Market Protocol any aggrieved party can seek redress in the Comesa Court.

The Comesa court deals with references from national courts, from individuals who have failed to acquire local remedies on issues of the treaty, and from employees of the common market on matters regarding conditions of employment. The role of the regional courts is largely unexploited.

It is time perhaps to educate Kenyans on the role of these courts and educate the citizens as to when the national appeal court decisions are final, and when and how litigants can move to EACJ or ACHPR or Comesa courts.

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