Case Watch: East Africa's Fledgling Court Feels its Way

The East African Court of Justice is not, strictly speaking, a human rights court.  It was created back in 2001 to oversee the interpretation and application of the treaty of the East African Community, whose members are Kenya, Uganda, Tanzania, Rwanda and Burundi.  But in the past year or so it has received a series of new cases that raise important issued of human rights and accountability for abuses.

The treaty which established the East African Court of Justice did not give it jurisdiction over human rights cases:  Article 27(2) says that states might extend the jurisdiction of the court to cover this later, and a recent conference recommended that they do just that; but for the moment, the court’s jurisdiction is limited to the interpretation and application of the East African Community Treaty. As a result, many of the court’s early cases have centered on administrative questions, such as how the states allocate and elect their representatives to the East African Community Legislature. However, a few years ago one enterprising group of lawyers noticed that the East African Community Treaty also committed its member states to abide by the rule of law. They took Uganda to the court over an incident where the army surrounded the High Court, detained a man that the judges had released on bail, and then prosecuted him before a military tribunal. And they won: surrounding a court with soldiers in order to circumvent an order of that court was not surprisingly found to violate the rule of law.

Over the past year, more cases have been filed with the East African Court raising violations of the rule of law that also touch on human rights issues, many brought by the East African Law Society.  In one case, the society's lawyers are suing the Ugandan government again, this time for arbitrary arrest, destruction of property, and killing of innocent people during the “walk to work” protests in March 2011.  In another, they accuse the Kenyan government of violating the rule of law by sending a number of its citizens, who were accused of involvement in the July 2010 Kampala bombing, to Uganda through irregular rendition instead of following the ordinary and legal extradition process.

A further case, again against Kenya, although this time brought by the Independent Medico-Legal Unit, claims that the government failed to prevent or to investigate over 3,000 cases of murder, torture or inhumane treatment committed by its security forces while combatting a local militant group in the Mount Elgon region. The obligation to investigate and prosecute serious crimes, especially those committed by state agents, would appear to be fundamental to the rule of law and the court agreed that it could hear this case. However, the Kenyan government has appealed. The outcome of this appeal will have a huge impact on whether this nascent venue for the people of East Africa to vindicate their rights and to hold their governments to their promises of the rule of law flourishes or withers on the vine.

The rule of law and the protection of human rights are inextricably linked, as the developments in this new forum highlight. The evolution of the case load of the East African Court of Justice also reminds us that those who seek to promote human rights through the legal process must sometimes look beyond traditional forums in order to seek justice.