Push and pull

Application of Community law in the Partner States of the East African Community

Abstract

The Treaty for the Establishment of the East African Community (the EAC Treaty) was signed on 30 November 1999 between the Republics of Kenya, Uganda and the United Republic of Tanzania. Burundi and Rwanda acceded to the Treaty in 2007 and South Sudan in 2016. The East African Community (EAC) is the fastest growing Regional Economic Community (REC) in Africa, with a comparatively well-functioning Customs Union, a partly functioning Common Market, a fast-approaching Monetary Union, and an ultimate destination of a Political Federation. The EAC Treaty is an international treaty and its international status has been canvassed both by the East African Court of Justice (EACJ) – the EAC’s judicial organ – and the national courts of Partner States. As might be expected, the former has been progressive and supranationalist in its interpretation of the Treaty while the latter have dabbled in a ‘push and pull’ approach attempting, on the one hand, to limit the application of the Treaty in order to protect constitutional supremacy while fully accepting, on the other hand, its application in regard to ordinary national legislation. Amidst this discourse, an appreciation of the generally binding nature of ratified international treaties has emerged among national courts so that EAC law (herein referred to as Community law) – itself a manifestation of an international Treaty – could be a major beneficiary.