HISTORY
OF THE EAST AFRICAN COMMUNITY
The
East African Community (EAC) is a regional intergovernmental entity comprising
of the Governments of Uganda , Burundi, Kenya, Rwanda and Tanzania with the
main aim of spearheading the East African economic, social, cultural and
political integration. The history of cooperation in East Africa goes back to
more than a hundred years. Kenya, Tanzania and Uganda have had a long history
of cooperation under successive regional integration arrangements including
having had a customs union between Kenya and Uganda in 1917, which the then
Tanganyika later joined in 1927; the East African High Commission (1948-1961);
the East African Common Services Organization (1961-1967); and the East African
Community (1967-1977)[1].
The
East Africa Community collapsed in 1977 due to factors such as lack of
political goodwill, 1971 coup attempt in Kenya, 1971 coup attempt in Uganda, 1976
Entebbe raid, the ‘Nairobi’ mentality and the problem of transfer taxes.
Kenya’s foreign policy under Kenyatta regime also led to the collapse of the
Community since it was resentful towards its partners. President Jomo Kenyatta
felt that Kenya should not bear the responsibility of ‘carrying’ the poorer members[2].
The
Partner States negotiated a Mediation Agreement for the division of assets and
liabilities following the dissolution of the first East African Community in
1977, which they signed in 1984.This was after the insistence of World Bank.
The Committee which came up with Mediation Agreement was under the chairmanship
of Prof. Victor Umbricht.The Mediation Agreement also contained a provision which
stated that the three Partner States had agreed to explore areas of future co-operation
and to make concrete arrangements for such co-operation.
Subsequent
meetings of the three Heads of State led to the signing of the Agreement for
the Establishment of the Permanent Tripartite Commission for East African
Cooperation on 30th December 1993. The East African Heads of State at their
second Summit in Arusha, on 29th
April
1997, directed the Permanent Tripartite Commission to start the process of
upgrading the
Agreement
establishing the Permanent Tripartite Commission for East African Cooperation
into a Treaty to deepen and widen regional cooperation.
In
1997, the three heads of state met to review the progress of the Tripartite Commission
in drafting the Treaty. In July 1997, the heads of state met again and approved
the draft Treaty with minor amendments. The Treaty for the Establishment of the
East African Community was finally signed on 30th November, 1999 and
came into force on 7th July, 2000 following its ratification by all
the Partner States. The Republics of
Burundi and Rwanda signed the Treaties of accession into the East African
Community on 1st June, 2007, formally becoming full members of the
EAC.However, the application for membership by Somalia and South Sudan was
recently deferred following a decision by the East Africa Community Heads of
State summit, held in Nairobi on Saturday (December 1st 2012). South
Sudan had applied for membership of the regional economic bloc after its
independence last year while Somalia had submitted its application in February
2012.The EAC treaty sets out details of adherence to universally acceptable
principles of good governance, democracy, rule of law, observance of human
rights and social justice as requirements to join the Community. A country
applying for membership has to have also geographical proximity with regional
states and be able to contribute towards regional integration.
The
Treaty provides for four levels of
integration with the entry point being the Customs Union, the second stage
being the Common Market, then the Monetary Union and eventually a Political
Federation.
Aims
and Objectives
The objectives of the
Community are to develop policies and programmes aimed at widening and
deepening co-operation among the Partner States in political, economic, social
and cultural fields, research and technology, defence, security and legal and
judicial affairs, for their mutual benefit.
The primary objectives of the Community shall be to ensure[3];
(a) Sustainable
growth and development of the Partner States;
(b) the
strengthening and consolidation of co-operation in agreed fields that
would lead to equitable
economic development with the
Partner States;
(c) promotion
of sustainable utilization of the natural resources of the Partner
States and the
taking of measures
that would effectively protect
the natural environment;
(d) the
strengthening and consolidation of the long standing political, economic, social,
cultural and traditional
ties and associations between the peoples of the
Partner States so as to promote a people-centered mutual development of these
ties and associations;
(e) the mainstreaming
of gender in all its
endeavours and the enhancement of the role of women in
cultural, social, political, economic and technological
development;
(f) the
promotion of peace, security, and stability within, and good neighbourliness
among, the Partner States;
(g) the enhancement
and strengthening of
partnerships with the private sector and civil society in order
to achieve sustainable socio-economic and political development; and
(h) the
undertaking of such other activities calculated to further the objectives of
the Community, as the Partner States may from time to time decide to undertake
in common.
COMPARISONS
AND DIFFERENCES BETWEEN THE 1967 EAC TREATY AND THE 1999 EAC TREATY
INTRODUCTION
The 1967 EAC Treaty
under Chapter 1,Article 1(3) provides that members of the East Africa Community
who are referred as “Partner States” include United Republic of Tanzania, the Sovereign
State of Uganda and the Republic of
Kenya. This Article does not provide for the admission of other states
apart from the three above. However, under the 1999 EAC Treaty, Chapter 1,
Article 3(1), it clearly provides that members of the Community are inclusive
of Kenya, Uganda, Tanzania and any other country granted membership to the
Community. This has seen the inclusion of Burundi and Rwanda as part of the
Community which was not originally envisioned in the old East African Treaty.
This Article has made
it open for countries to join the Community as long as they share the same
objectives as the Community as provided under Article 5 of the EAC Treaty.
The 1967 EAC Treaty had
a different institutional set-up as compared to the 1999 EAC Treaty. The
institutions of the Community as established under Article 3(1) included;-
(a)the East Africa
Authority;(b)the East African Legislative Assembly;(c)the East African
Ministers;(d)the Common Market Council;(e)the Common Market Tribunal;(f)the
Communications Council;(g)the Finance Council;(h)the Economic Consultative and
Planning Council;(j)the Research and Social Council.
The 1999 EAC Treaty
under Article 9(1) has established the following organs and institutions of the
Community;-
(a)the Summit;(b)the
Council;(c)the Coordination Committee;(d) Sectoral Committees;(e)the East
African Court of Justice;(f)the East African Legislative Assembly;(g)the Secretariat;
and (h)such other organs as may be established by the Summit.
The institutions under
the 1967 and 1999 EAC Treaty had similar and different functions or composition
at the same time. This is as shown below;-
(1)The East African Authority compared to
the Summit
Under the two treaties,
the executive authority of the Community lied with the East African Authority
in the 1967 Treaty while in the 1999 EAC Treaty, it lies with the Summit. The composition
of the two institutions is similar. Article 47 of the defunct 1967 Treaty and
Article 10 of the 1999 Treaty provides that the institutions shall consist of
heads of state and in their absence, a person holding office as a Minister of
Government may be appointed after consultations with other members of the
Authority/Summit and shall have for purposes of that meeting all the powers,
duties and responsibilities of the member of the Authority/Summit for whom he
is acting.
The major difference between
the two institutions arose due to the Summit being given additional functions
as compared to the defunct 1967 EAC Treaty. These additional functions as
provided under Article 11 included;
(i) the duty to review annual progress reports
submitted to it by the Council of Ministers.
(ii)the
duty to review the state of peace, security, good governance within the
Community. This upholds the principle of peaceful coexistence among the Partner
States.
(iii)the
duty to review the progress achieved towards the establishment of a Political
Federation of the Partner States.
Another
major difference between the 1999 Treaty and the 1967 Treaty relates to
restriction in terms of delegation of powers and functions. Under article 48(3)
the East African Authority had the power to give directions to the Councils and
the East African Ministers as to the performance of any functions conferred
upon them. However, Article 51(1) creates some confusion since the functions of
the Authority are superficial. The Article provides that it shall be the
responsibility of the East African Ministers to assist the Authority in the
exercise of its executive functions to the extent required by and subject to
the directions of the Authority, and to advise the Authority generally in
respect of the affairs of the Community. The superficiality may have led to mistrust
among Partner States and mismanagement in the Community in the long run.
In response to this weakness of the 1967
Treaty, the 1999 Treaty stipulates in Article 11(9) the specific powers of the
Summit that can not be delegated. They are:-
(a)The
giving of general directions and impetus;
(b)The
appointment of judges to the East African Court of Justice;
(c)The
admission of new Members and granting of Observer Status to foreign countries;
and
(d)Assent
to Bills.
(2) The
East Africa Legislative Assembly under the two Treaties
The election of members
of the East Africa Legislative Assembly differed between the two Treaties.
Article 57(1) of the 1967 Treaty provides that each Partner State shall appoint
nine of the twenty-seven appointed members of the Assembly in accordance with
the procedure each Partner State decides. Thus the Partner States had
discretion in nominating the members of the Assembly without following set
procedures.
However, under the 1999
EAC Treaty, it is clearly stipulated how the members are to be elected to the Assembly.
Article 50(1) provides that the National Assembly of each Partner State shall elect,
not from amongst its members, nine members of the Assembly, who shall represent
as much as it is feasible, the various political parties represented in the
National Assembly, shades of opinion, gender and other special interests groups
in that Partner State.
This is a notable departure from provisions of
Articles 56 and 57 of the 1967 Treaty for East African Co-operation, under
which each Partner State was mandated to “appoint nine” of the “twenty-seven
appointed members” of the Legislative Assembly. Thus any breach of this
provision may be contested under the East Africa Court of Justice. This was
illustrated in the case of Prof.
Anyang’ Nyong’o & Others vs. Attorney General of the Republic of Kenya and
Others[4].
The dispute was on the
legality of the election of Kenya’s EALA representatives in 2006. The was
brought before the EACJ by Kenya’s member of parliament (MP), Hon. Prof. Peter
Anyang’ Nyong’o and 10 others as applicants versus the Attorney General of
Kenya and 5 others as respondents averred, inter alia, that the Clerk to the
National Assembly of Kenya submitted an illegal list of the East African
Legislative Assembly (EALA) representatives from Kenya and requested the EACJ;-
• To interpret and
apply the treaty to the process of nominations and election of Kenya’s
representatives to the EALA.
• To declare that the
rules of election applied by the Kenya National Assembly constitute a breach of
Article 50 of the treaty.
• To declare that the
process of election, selection and/or nomination of members to the EALA by
Kenya is null and void.
• To direct Kenya to
repeat its nomination and election process in compliance with Article 50 of the
treaty.
• To declare that
Kenya’s Vice President and Leader of Government Business and the Chairman of
the National Rainbow Coalition (NARC) have no mandate to determine persons to
represent Kenya at the EALA, and
• To restrain and
prohibit the EAC Secretary General and the Clerk to the EALA from assembling,
convening, recognizing, and administering oath of office or otherwise presiding
over or participating in election of the Speaker or issuing any notification in
recognition of the EALA representatives from Kenya.
The Attorney General of
Kenya and the other respondents raised objections on key legal questions in
relation to the EAC treaty and the partner states. Their submissions centered
on the following:
• That the EACJ lacks
jurisdiction to determine the case and the jurisdiction vested in the Court in
clause 27 (1) of the EAC treaty is restricted.
Article 27 (1) of the
treaty provides that “the Court shall initially have jurisdiction over the
interpretation and application of this treaty”
• That Article 52 (1)
of the treaty reserves the right of jurisdiction to determine such cases to the
institution of the partner states. Article 52 (1) states, “any question that
may arise whether any person is an elected member of the Assembly or whether
any seat on the Assembly is vacant shall be determined by the institution of
the partner state that determines questions of the election of members of the National Assembly responsible
for the election in question”
In its ruling, the EACJ
invoked Articles 30 and 27 (1) of the treaty, stating, inter alia, that the
Court has jurisdiction to determine the “legality of any Act, regulation,
directive, decision or action of a partner state or an institution of the
Community.
Article 30 of the
treaty provides:-
“Subject to the
provisions of Article 27 of the treaty, any person who is resident in a partner
state may refer for determination by the Court, the legality of any Act,
regulation, directive, decision or action of a partner state or an institution
of the Community on the grounds that such Act, regulation, directive, decision
or action is unlawful or is an infringement of the provisions of this treaty.”
On the question
relating to the legality of the election of the EALA representatives from
Kenya, the Justices of the EACJ concluded that they “are satisfied that the
EALA and the Community itself stand to suffer irreparable damage if” Kenya’s
EALA representatives were not legally elected and directed the elections to be repeated[5]. The
ruling of the EACJ not only forced the National Assembly of Kenya to address
its internal electoral process but also infringed on its sovereignty.
Specifically, the EACJ ruling can be interpreted to mean that regional
sovereignty takes precedence over a partner state’s sovereignty. Even though
the partner states reacted with hostility against its ruling, the decision by
the EACJ has set precedence within the EAC that will go a long way in laying
the foundation for the recognition of the EAC institutions for governance.
- Tenure of Office of elected members of the East African Legislative Assembly differs between the two treaties.
The 1999 Treaty
expressly provides[6] that
an elected member shall hold office for 5 years and is eligible for re-election
for a further 5-year term.
On the other hand
however, the 1967 Treaty does not expressly provide for a specific number of
years in which an elected member may hold office. Article 58(1) provides that
“a member of the assembly shall hold office until the legislature of the
partner state which appointed him first meets after it is next dissolved”.
One of the main
limitations of the current EAC treaty is that it does not confer sovereign
rights on the people of East Africa through participatory electoral process.
More specifically, the East Africans do not participate in direct elections of
the EALA representatives, who by virtue of their legislative responsibilities
are supposed to serve the interests of the people. The electoral process is
largely state-driven, right from the level of the nomination of candidates by
political parties to the elections of the EALA representatives by the national
assemblies of the partner states as provided for in Article 50 of the EAC
treaty.
(3)
The East African Ministers as compared
to the Council of Ministers
Article
3(1) of the 1967 treaty establishes the East African ministers as one of its
organ while Article 13 of the 1999 Treaty creates the Council which shall
consist of Ministers responsible for regional co-operation.
The
major difference lies in the fact that the current Council of Ministers is the
policy organ of the Community. Article 14 provides for the functions of the
Council which include;-establishment of Sectoral Committees as provided under
the Treaty, implementation of the decisions and directives of the Summit as may
be addressed to it and considering the budget of the Community. This functions
are very clear as compared to the 1967 Treaty where the defunct Ministers[7]
were charged with the responsibility of assisting the authority in the
executive functions of the Authority to the extent required and subject to the
directions of the Authority. Another major difference is that the regulations,
directives, decisions and recommendations[8] of
the Council of Ministers are binding on all organs and institutions of the
Community other than the Summit, the Court and the Legislative Assembly. This
widens the impact of the decisions of the Council in regional matters and makes
its existence crucial to regional integration.
(4) The Courts under the 1967 and 1999 Treaties
The 1999 EAC
Treaty establishes the East African Court of Justice[9]
which shall be the judicial body which shall ensure the adherence to law in the
interpretation and application of and compliance with the Treaty[10].The
Court shall consist of a First Instance Division and an Appellate Division. The
First Instance Division shall have jurisdiction to hear and determine,
at first
instance, subject to a right of appeal to the Appellate Division under Article
35A, any matter before the Court in accordance with this Treaty.
Article 35A
provides that an appeal from the judgment or any order of the First Instance
Division of the
Court shall lie to the Appellate Division on ;- (a) points of law; (b) grounds of
lack of jurisdiction; or (c) procedural irregularity.
Appointment of judges
of the court is provided for under Article 24 which states that judges of the
Court shall be appointed by the Summit from among persons recommended by the Partner
States and it has a proviso to the effect that no more than two judges shall at
any time be appointed on the recommendation of the same Partner State[11].
The number of judges
shall be a maximum of six provided that of the judges appointed to the Court,
the terms of the two judges shall expire at the end of five years, the term of
the two other judges shall expire at the end of six years and the remaining two
judges shall serve their full term of seven years.
The major difference
which arises between the two Courts as provided under the 1967 and 1999 EAC
Treaty relates to jurisdiction.
The 1967 treaty established the Court of
Appeal for East Africa. The court was constituted in such a manner as provided
by an Act of the community and the Court of Appeal of Eastern Africa
established by the East African Common Services Organization Agreements of
1961-1966[12].
The jurisdiction of the court was to hear and determine appeals from the courts
of each partner state. The EACA which is now defunct had appellate jurisdiction
in criminal, civil, constitutional and human rights matters in East Africa.
The
EACJ as established under the 1999 EAC Treaty has limited jurisdiction with no
constitutional jurisdiction, no criminal appellate jurisdiction and no civil
appellate jurisdiction. Under Article 27(1), the jurisdiction of the Court will
be limited to interpretation and application of the Treaty initially. However,
it is provided that the Court shall have other original, appellate, human
rights and other jurisdiction as will be determined at a future date[13]
by the Partner States through a Protocol. Article 6(d) clearly provides the
EACJ with human rights jurisdiction by ensuring that there is good governance,
including adherence to the principles of democracy, the rule of law,
accountability, transparency, social justice, equal opportunities, gender
equality, as well as the recognition, promotion and protection of human and people’s
rights in accordance with the provisions of the African Charter of Peoples’ and
Human Rights.
The role of the East
African Court of Justice in the settlement of EAC Common Market
Protocol-related disputes is limited to interstate matters, rendering the court
irrelevant to cases for individuals and private firms.
Article
54(1) of the Common Market Protocol provides that any dispute between the
Partner States arising from the interpretation or application of this Protocol
shall be settled in accordance with the provisions of the Treaty.This implicitly confers upon the EACJ jurisdictional powers
to determine such disputes between partner states. However, the same protocol
does not provide natural and legal persons with an avenue for settlement of
disputes concerning them.
(5)The
Sectoral Committees
Article 20 0f the 1999 Treaty
provides for the establishment, composition and general functions of a Sectoral
Committee which is a new organ as compared to the institutions under the
defunct 1967 Treaty.
Article 20 provides that, “the
Co-ordination Committee shall recommend to the Council of Ministers the
establishment, composition and functions of such Sectoral Committees as may be
necessary…”
A Sectoral Committee once
established is subject to the directions of the Council.It shall:-
(a)be
responsible for the preparation of a comprehensive implementation programme and
the setting out of priorities with respect to its sector;
(b)monitor
and keep under constant review the implementation of the programmes of the
Community with respect to its sector;
(c)submit
from time to time, reports and recommendations to the Co-ordination Committee
either on its own initiative or upon the request of the Co-ordination Committee
concerning the implementation of the provisions of this Treaty that affect its
sector; and
(d)Have
such other functions as may be conferred on it by the 1999 East African Treaty.
(6)The Co-ordination Committee
The Co-ordination Committee is a new organ
established under the 1999 EAC Treaty. Article 17 provides that the Committee
shall consist of the Permanent Secretaries responsible for regional
co-operation in each of the Partner State. The functions of the Committee are
provided under Article 18 which include;-
(a) submitting from time
to time, reports and recommendations to the council either on its own
initiative or upon the request of the council once the Treaty has been
implemented;
(b) implementing the decisions of the Council
as the Council may direct;
(c) receiving and
considering reports of the Sectoral Committee and co-ordinate their activities;
(d) requesting the Sectoral
Committee to investigate any particular matter.
The Co-ordination
Committee shall be meeting at least twice per year preceding the meetings of
the Council and may hold extraordinary meetings at the request of the
Chairperson of the Committee.
TRANSFER TAX UNDER THE
TWO TREATIES/REGIMES
Chapter
V on measures to promote balanced industrial development provides for transfer
tax[14].
Article
20(3) of the defunct 1967 Treaty provides that a Partner State which is in
deficit in its total trade in manufactured goods with the other two Partner
States may impose transfer taxes upon the manufactured goods which are
transferred to that State and originate from either of the other Partner
States.
The
Partner State may also impose transfer taxes upon the manufactured goods of a
Partner State being goods of a value not exceeding the amount of the deficit in
trade in manufactured goods between the State which is imposing the transfer
tax and the State of origin of the goods upon which the tax is to be imposed[15].
Article
20(6) provides that Partner State may impose a transfer tax upon manufactured
goods only if at the time the tax is imposed goods of a similar description are
being manufactured in that State or are reasonably expected to be manufactured
in that State within three months of the imposition of the tax, and for the
purposes of this paragraph goods shall be deemed to be of a similar description
to other goods if, in addition to similar function, constituent parts or
content, they are of such a nature as will enable them actively to compete in
the same market as those other goods: Provided that this paragraph shall not
preclude the imposition, but not the bringing into operation, of a suspended
transfer tax at any time: Provided further that, if a transfer tax is imposed
in the reasonable expectation that the manufacture of particular goods will
commence within three months of the imposition of the tax and such manufacture
does not commence within that period-
(a) the Partner State imposing the transfer
tax shall, within twenty-one days, revoke it unless, before the expiration of
that period, that Partner State has obtained the directive of the Common Market
Council that, conditional upon the commencement of manufacture within a further
period of three months, the revocation of such tax may be deferred for such
further period;
(b) notwithstanding that a transfer tax has
been revoked, for the reason that the Common Market Council has not within
three months of the imposition of such tax given the directive referred to in
sub-paragraph (a) of this proviso, it
shall be competent to that Council, where application in that behalf has been
made by a Partner State within three months of the imposition of such tax, to
direct that, conditional upon the commencement of manufacture within a further
period of three months, such tax may be re-imposed.
The
rate of transfer taxes shall be determined by the Partner States which imposes
it, but no transfer tax may be imposed on any item if the same kind of item is
not chargeable with any duty on import and the rate of any transfer tax imposed
shall not exceed[16]-
(a)
where the duty is chargeable ad valorem or ad valorem as an alternative to the
specific duty, 50 per cent of the rate of duty prescribed by the customs tariff
of the tax imposing State in respect of the import of the same kind of item; or
(6) where the duty is a specific duty with no alternative ad valorem, 50 per
cent of the ad valorem equivalent of the specific duty; but if the same kind of
item is not chargeable with any duty on import no transfer tax may be imposed.
However under the 1999
EAC Treaty, a different approach is taken on how transfer taxes are going to
treated. The 1999 Treaty has provisions that in effect tend to abolish transfer
taxes amongst partner states. Article 76 of the treaty provides for the
establishment of a common market characterized by the free movement of goods, labour,
services and capital and this therefore underscores the fact that there won’t
be need for transfer taxes since goods can be moved freely within the common
market.
In addition, transfer
taxes were imposed in the 1967 treaty with a view to promote industrial
development to partner states that lagged behind matters industrial. The 1999
treaty attempts to address the industrial development imbalances through
Article 79 whereby partner states are required to take steps that shall among
others;
v Promote self-sustaining and balanced
industrial growth
v Improve
the competitiveness of the industrial sector so as to enhance the expansion of
trade in industrial goods within the community
Article
80 on strategy and priority areas[17]
provides that for the purposes of Article 79 of the Treaty, the Partner States
shall take measures to;
(i)
harmonise and rationalize investment incentives including those relating to
taxation of industries particularly those that use the local materials and
labour with the view to promoting the Community as a single investment area[18].
(ii)
avoid double taxation[19].
Article
15 of the EAC Customs Union Protocol on national treatment provides that;-
(1)
the Partner States shall not:
(a) enact legislation or apply administrative
measures which directly or indirectly discriminate against the same or like
products of other Partner States; or
(b)
impose on each other's products any internal taxation of such a nature
as to afford indirect protection to other products.
(2) No Partner
State shall impose, directly or indirectly, on the products of other Partner
States any internal taxation of any kind in excess of that imposed, directly or
indirectly, on similar domestic products.
(3) Where products are exported to the territory
of any Partner State, any repayment of internal taxation shall not exceed the
internal taxation imposed on them, whether directly or indirectly.
The
East Africa Common Market Protocol Article 32 provides that the
Partner States shall undertake to progressively
harmonize their tax policies and laws to
remove tax distortions in order to
facilitate the free movement of goods,
services and capital and to promote
investment within the Community.
This
means that as a single investment area of East Africa, tax will only be charged
on the country of origin of the manufactured goods or for imports at the point
of entry for example, the Port of Mombasa or Port of Dar-es-Salaam. This will
avoid double taxation arising.
A
single regional Customs Authority would mean that customs revenues are
collected at the first point of entry, and imported goods proceed to the final
destination without stopping at national border points for customs charges or
inspection.
EMERGING ISSUES
The
1999 Treaty in particular is a roadmap aimed at strengthening the community and
ensuring the challenges that faced the community under the 1967 treaty are
addressed. The following issues have been dealt with under the 1999 EAC Treaty
so as to ensure the integration process is successful.
(a)The legal capacity
of the Community and formation of a Political Federation
Under
the 1967 Treaty, the East Africa Community was established for economic and
commercial purposes. Each of the Partner state had some autonomy in terms of
being sovereign.
However,
under the 1999 EAC Treaty, the Community shall be a body corporate with
perpetual succession and shall have the power to acquire, hold, manage and
dispose of land and other property, and to sue and be sued in its own name[20].As
a body corporate, the Community will be represented by the Secretary General[21].
In
relation to co-operation in political matters, the idea of a political
federation has been mooted in which the Partner States shall establish common
foreign and security policies[22].
The
objectives of the common foreign and security policies shall be to[23];(a)safeguard
the common values, fundamental interests and independence of the Community;(b)
strengthen the security of the Community and its Partner States in all
ways;(c)develop and consolidate democracy and the rule of law and respect for
human rights and fundamental freedoms;(d)preserve peace and strengthen
international security among the Partner States and within the
Community;(e)promote co-operation at international fora; and (f)enhance the
eventual establishment of a Political Federation of the Partner States.
In
Article 123(6), the summit has been mandated with the process of initiating the
establishment of a Political Federation of the Partner States by directing the
Council to undertake the process.
(b)Principles of the
Community
The
1999 EAC Treaty has established two Principles which will ensure the
integration process does not collapse like before. This is a fundamental
departure from the defunct 1967 Treaty. They include;-
(a)Fundamental Principles[24]
which encompasses;(i)mutual trust, political goodwill and sovereign
equality;(ii)peaceful co-existence and good neighborliness;(iii)peaceful
settlement of disputes;(iv)good governance including adherence to the
principles of democracy and the rule of law;(v)equitable distribution of benefits;
and (f)co-operation for mutual benefits.
(b)Operational Principles[25]
have been provided to govern the practical achievement of the objectives of the
Community. They include;-
(i)people
centered and market driven co-operation;(ii)the provision by the Partner State
of an adequate and appropriate enabling environment;(iii)the establishment of
an export oriented economy where there shall be free movement
of,persons,labour,services,capital, information technology;(iv)the principle of
subsidiarity with emphasis on multi-level participation and the involvement of
a wide range of stake-holders in the process of integration;(v)the principle of
variable geometry which allows for progression in co-operation among groups
within the Community for wider integration schemes in the various fields and at
different speeds;(vi)the equitable distribution of benefits accruing or to be
derived from the operations of the Community
and measures to address economic imbalances that may arise from such
operations;(vii)the principle of complementarity; and (viii)the principle of
asymmetry.
The
fundamental and operational principle were drawn so as to widen and deepen the
integration process after the collapse of the East Africa Community in 1977.The
principles are a cornerstone for the success of EAC integration. In the general
undertaking as to the implementation of the Treaty, the Partner States shall
abstain from any measure likely to jeopardize the achievement of these
objectives[26].
(c) The Role of Women
in Socio-Economic Development
This
is a new provision under the 1999 EAC Treaty. This completely differs from the
1977 Treaty since the issue of gender is expressly provided for in the treaty
which recognizes women as having a major role in integration and development of
the East Africa Community. However, the role of women is expected to be
enhanced at the policy formulation and implementation levels within the EAC and
the partner states.
Article
121 of the treaty provides that the partner states shall through legislative
and other measures;-
(a)
promote the empowerment and effective integration and participation of women at
all
levels
of socio-economic development especially in decision making.
(b)
abolish legislation and discourage customs that are discriminatory against
women.
(c)
promote effective education awareness programmes aimed at changing negative
attitudes
towards
women.
(d)
create or adopt technologies which will ensure the stability employment and
professional
progress
for women workers, and
(e)
take such other measurers that shall eliminate prejudices against women and
promote the
equality
of the female gender with that of the male gender in every project.
Women
are also considered as a vital economic link between agriculture, industry and trade[27].The
Partner States will be expected to promote special programmes for women in small,
medium and large scale enterprises, not forgetting eliminating all laws,
regulations and practices that hinder women’s access to financial assistance
including credit.
The
Partner States will also be expected to initiate changes in the educational and
training strategies to enable women to improve their technical and industrial
employment levels through the acquisition of transferable skills offered by
various forms of vocational and on-the-job training schemes[28].
(d)Participation of the
Private Sector and the Civil Society
One
of the main factors that led to the collapse of East Africa Community in 1977
was the “lack of strong participation of civil society” .The inclusion of civil
society and private sector in the treaty therefore is an important ingredient
for regional integration and development in general. The Partner States have
undertaken to formulate a strategy for the development of the private sector
and to;-
(a)
promote a continuous dialogue with the private promote a continuous dialogue
with the private sector and civil society at the national level and at that of
the Community to help create an improved business environment for the
implementation of agreed decisions in all economic sectors; and
(b) provide opportunities for entrepreneurs to
participate actively in improving the policies and
activities
of the institutions of the Community that affect them so as to increase their
confidence in policy reforms and raise the productivity and lower the costs of
the entrepreneurs.
Creation of an enabling environment for the
civil society and other stakeholders will make them to be more involved in the
EAC transformation and development process. The involvement and particularly
ownership of the EAC activities by the civil society and other non-governmental
organizations (NGOs) is critical for the sustainability of the community’s
raison d’être and success.
CONCLUSION
After the creation of the Customs Union and the
Common Market, the Monetary Union is the third stage in the integration process
of the East African Community bloc, which ultimately aspires to form a
Political Federation.
So far the Customs Union Protocol and Common Market
Protocol for East Africa have been finalized. The EAC Summit of Heads of State
have set April 2013 as the deadline for the conclusion of the Monetary Union
Protocol, and EAC Secretary General Ambassador Richard Sezibera has on
different occasions reiterated EAC’s commitment to have the Protocol concluded
within the set timeframe.
When the team of experts, the High Level Task Force
(HLTF) negotiating a monetary union hit a snag last month(November 2012), the
14th EAC heads of state summit meeting in Nairobi last week(December 2012)
directed the matter be expedited so as to have it signed by November 2013.The
process for the establishment of the East African Monetary Union is underpinned
by Articles 5 and 82 of the Treaty for the Establishment of the EAC where,
among others, the Partner States undertake to establish a monetary union and to
co-operate in monetary and fiscal matters. The primary rationale for a monetary
union is to reduce the costs and risks of transacting business across the
national boundaries of those countries which comprise the union.
However,
the creation of a monetary union for the East Africa Community requires
extensive institutional preparation as well as convergence among the region’s
economies. The experience of the euro zone shows the need for putting in place
adequate safeguards against excessive fiscal deficits and debt. Despite a long
period of institution building and many resources invested in preparing the
monetary union, the euro zone currently faces a crisis that threatens its
continued existence. Given that the EAC is at a much earlier stage in regional
integration than was the European Union at the time of the signing of the
Maastricht Treaty, it is unlikely that the EAC could create a full-fledged
currency union that was effective in creating a zone of monetary stability in
much less than a decade.
There is convincing evidence that EAC monetary union
will contribute to greater cross-border trade in finance and goods, delivering efficiency
gains from market integration. With a unified currency, international
integration with the rest of the world will increase rapidly such that it will
be essential not to view the EAC single currency area as a closed unit. By
embracing a single currency, EAC Partner States would remove the costs of
having to transact in different currencies and the risk of adverse exchange
rate movements for traders and travelers alike within the region[29].
[1]
A. Kasaija, ‘Regional Integration: A Political Federation of the East African
Countries?’ African Journal of International Affairs, Vol. 7, Nos.
1&2, 2004, pp. 21–34, Retrieved 16th March
2011 p 25, http://www.ajol.info/index.php/ajia/article/viewFile/57213/45602
[2] A. T. Mugomba, Regional Organisations and African
Underdevelopment: The Collapse of the East African Community ‘, The Journal
of Modern African Studies, Vol. 16, No. 2 (Jun., 1978), pp. 261-272
Retrieved
September 9 2009 from JSTOR
database available at University of the Witwaterand library website
[3]
Article 5(3)
[4]
Ref. No. 1 of 2006, Ruling (EACJ, Feb. 6,2007)
[5]
The EACJ, in August 2010,
ordered the Government of Kenya, through the Attorney-General, to pay the
applicants the legal costs with interests amounting to over $ 2,000,000 which
had accrued since the ruling was reached in 2006.
[6]
Article 51(1)
[7]
Article 51(1) of 1967 Treaty for East Africa Co-operation
[8]
Article 14 of 1999 East African Community Treaty
[9]
Chapter 8 article 23
[10]
Article 23
[11]
Article 24(1)
[12]
Article 80
[13]
Article 27(2)
[14]
Article 20
[15]
Article 20(4)
[16]
Article 8
[17]
1999 East Africa Community Treaty
[18]
Article 80(f)
[19]
Article 80(h)
[20]
Article 4(1)
[21]
Article 4(3)
[22]
Article 123
[23]
Article 123(3)
[24]
Article 6
[25]
Article 7
[26]
Article 8(1) (c)
[27]
Article 122
[28]
Article 122(f)
[29]
The Kenyan Standard Newspaper, December 4th 2012.
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