ASSESSMENT CRITERIA

The three areas of focus in examining the legitimacy of the Community may be grouped into “output” and “input” legitimacy.Footnote ¹¹ Outputs refer to the achievement of the substantive purposes of an organization, while inputs refer to the processes by which decisions are reached and whether those processes have certain attributes regarded by the audience as important.Footnote ¹²

The twin issues of “formation of the Community” and “its organs” by their nature provoke concerns for input legitimacy. The legitimacy of the formation of the Community is determined by the processes by which the decision was reached. On the other hand, the legitimacy of the organs of the Community depends on the legitimacy of their structures, composition and administration.

Input legitimacy must meet three main standards: inclusiveness; decisiveness; and epistemic reliability.Footnote ¹³ To be inclusive, an organization's decision-making process must represent all valid interests. Those interests must be ascertained by an open, accountable and effective process that ensures that the representatives have the capacity to represent the various interests.Footnote ¹⁴

Decisiveness means that an organization can take effective action even where there is opposition from a powerful member state or other interested parties. There should be no possibility that one member state or a group of member states may veto a decision agreed by a majority of members.Footnote ¹⁵

Epistemic reliability requires that the decision-making process is transparent and open to criticism from insiders as well as outsiders. There must be provisions for accountability and for the rules and practices to be revised in the light of experience. The officers of the organization must be guided by clear standards of behaviour and publicly available information about their performance, and the activities and operations of the organization. Revisability requires that rules and practices do not unduly favour the status quo. There must be room for institutional change to keep pace with changing circumstances,Footnote ¹⁶ without compromising the purposes and objectives of the organization. The institutions and instruments of a regional framework must be flexible, recognizing the variability of the interests of member states and stakeholders.

Therefore, to be legitimate, the formation of the Community must have been both inclusive and decisive. Further, the established Community must be epistemically reliable. The organs of the Community must likewise be inclusive, decisive and epistemically reliable.

A look at the activities and operations of the Community will determine the extent to which it meets the standards of output legitimacy. This article will examine the extent to which the activities and operations of the Community have resulted in its purposes and objectives being met.

THE FORMATION OF THE COMMUNITY

Following the collapse of the original East African Community in 1977, the three founding member countries signed the East African Community Mediation AgreementFootnote ¹⁷ in May 1984 to provide for the division of the assets and liabilities of the defunct organization.

Under article 14.02 of the Mediation Agreement, the three states agreed to explore and identify further areas for future cooperation and to work out concrete arrangements for that cooperation.

According to article 14.01 of the agreement, the Soroti Civil Flying School and the Inter-University Council of East Africa, being institutions of the defunct organization, would continue to operate as common service institutions of the member states. Likewise, the East African Development Bank was to continue as a joint institution of the member states. These institutions ensured that cooperation and collaboration would continue between the three countries, and served as a constant reminder of the positive attributes of regional integration and its potential for betterment of the region as a whole.

Coupled with the worldwide movement towards regional groupings,Footnote ¹⁸ it was no wonder that in November 1993, pursuant to article 14.01 of the Mediation Agreement, the three East African heads of state signed an agreement establishing a Permanent Tripartite Commission for East Africa (the Commission).

The Commission was composed of a Body of Ministers of the governments of the member countries, a Coordination Committee of permanent secretaries of the ministries, a Secretariat and Sectoral Committees on administration and finance, fisheries and livestock, energy, environment, defence, education and culture, fiscal affairs, monetary affairs, immigration, legal and judicial affairs, security, tourism, trade and investment, transport and communication, and meteorology. The Sectoral Committees represented areas of cooperation to be explored between the three countries.

The Commission was charged with the task of initiating, planning and implementing cooperation programmes in the stated sectors, so as to foster development and find an appropriate mode of cooperation between the countries.

The Commission developed and launched a draft Treaty for the Establishment of the East African Community in 1998. The Treaty was eventually signed on 30 November 1999 by the three heads of the member states.

The Treaty establishes the Community under article 2(1). It is a body corporate with perpetual succession; it has the power to sue and be sued in its own name, coupled with the power to acquire, manage and dispose of property in any of the member states.Footnote ¹⁹ The Community has the power to perform any of the functions conferred upon it by the Treaty and to do all things necessary or desirable for the performance of those functions.

The members of the Community are the three contracting state parties and any other state granted membership in accordance with article 3 of the Treaty.

Unfortunately, the formation of the Community was not inclusive. The people of the three founding states were not consulted before a decision was made to form the Commission in November 1993. This decision was made by the executive arms of the three governments without even the involvement of their legislatures.Footnote ²⁰ Thus the trend of non-inclusiveness in the formation of the Community was set. This trend was entrenched and maintained up to the signing of the Treaty. The people's consent was not obtained before the Treaty was signed by the three heads of state. The Commission allegedly opened the draft Treaty for public debate from May 1998 to April 1999.Footnote ²¹ However, the debate was not organized and structured so as to be effective, and was at best limited to a few professional societies and non-governmental organizations which by their nature had information on government activities regarding regional integration.Footnote ²² There were no fora for the general public to participate, nor was the draft circulated widely enough to be accessed by ordinary people. No structures or mechanisms for feedback were put in place, nor were there systems to ensure that the public's views were taken into account in finalizing the draft Treaty. None of the three states held a referendum on the draft Treaty. In essence, the people gave no consent for the establishment of the Community.

It is also noteworthy that the Commission which drafted the Treaty had no elected representatives from various interest groups such as farmers, trades unions, manufacturers, professionals and civil society. Commission members were mere government appointees with no popular mandate. The formation of the Community was therefore a decision of the governments of the region, to the exclusion of the individuals who would be affected.Footnote ²³

As a government activity, the process of forming the Community was neither open nor transparent. Its architects were civil servants guided by rules and regulations of secrecy applying to every government activity.Footnote ²⁴ The public had hardly any information about the Commission's activities and performance following its establishment. As such, there was no opportunity to criticize the Commission's work and performance, including the process of preparing the Treaty establishing the Community. This accordingly rendered the process epistemically unreliable.

The formation of the Community therefore fails the test of input legitimacy. It was neither inclusive nor epistemically reliable. It was illegitimate. Despite these shortcomings, the Community was born and with it its organs.

THE COMMUNITY'S ORGANS

Chapter 3 of the Treaty establishes the Community's organs and institutions. Article 9(1) lists the Summit, the Council, the Co-ordinating Committee, Sectoral Committees, the East African Court of Justice (the Court), the East African Legislative Assembly (the Assembly) and the Secretariat as organs of the Community. Any other organ may be established by the Summit.Footnote ²⁵

The institutions of the Community are those bodies, departments and services that the Summit establishes,Footnote ²⁶ over and above the East African Development Bank, Lake Victoria Fisheries Organization and all other surviving institutions of the former East African Community.Footnote ²⁷ The Community's organs and institutions perform the functions and act within the limits of the powers conferred on them by the Treaty.

For reasons of space, this article only discusses the organs of the Community.

THE COMMUNITY'S ACTIVITIES AND OPERATIONS

After the Treaty came into force on 7 July 2000, the Community was officially launched on 15 January 2001. This was followed by the inauguration of the Assembly and the Court, when the Assembly members and judges of the Court were sworn in at Arusha, Tanzania. On 2 March 2004, the Community's member states signed the Protocol on the Establishment of the East African Customs Union (the Protocol). It entered into force on 1 January 2005.

Under article 5 of the Treaty, the Community's main objective is to develop policies and programmes aimed at widening and deepening co-operation among member states for their mutual benefit, in political, economic, social and cultural fields, research and technology, defence, security, and legal and judicial affairs. The Treaty provides for a customs union, common market, monetary union and political federation to be established in pursuit of this objective. It was envisaged that these measures would strengthen and regulate industrial, commercial, infrastructural, cultural, social and political relations between member states, and ensure accelerated, harmonious and balanced development coupled with the expansion of the economic activities of all member states.Footnote ⁸⁹

The Treaty boldly declares that the achievement of its objectives will be guided by, among others, the principle of good governance. This demands adherence to principles of democracy, the rule of law, accountability, transparency, social justice, equal opportunities, gender equality, and the recognition, promotion and protection of human and peoples’ rights in accordance with the African Charter on Human and Peoples’ Rights.Footnote ⁹⁰

The activities and operations of the Community were to be informed by eight principles. They would be people centred and market driven, and the member states would provide an adequate and appropriate enabling environment for their realization. The Community would create export oriented economies for member states, underpinned by the free movement of goods, persons, labour, services, capital, information and technology.Footnote ⁹¹

In order to guarantee that the Community's objectives would be achieved, member states undertook to plan and direct their policies in line with Community objectives, coordinate their policies through the Community institutions and abstain from any measures that may endanger the attainment of the objectives. As a preliminary measure, each member state was required to enact whatever legislation was necessary to give effect to the Treaty in its territory. That legislation had to confer on the Community the legal capacity and personality to be able to perform its functions, as well as give the legislation, regulations and directives of the Community and its institutions the force of law within its territory.Footnote ⁹²

Article 8(4) of the Treaty expressly provides that Community organs, institutions and laws shall take precedence over similar national ones on matters pertaining to the implementation of the Treaty. For this reason, member states are obliged to enact any necessary legislation to give Community organs, institutions and laws precedence over similar national ones.Footnote ⁹³

Despite the clear and express provisions of article 8, member states have failed to comply fully with its requirements. They have declined to enact the necessary legislation to uphold the provisions of the article. To begin with, all three founding states gave effect to the Treaty in their territories by ordinary acts of parliament, thereby leaving the constitutionality of article 8(4) of the Treaty open to challenge in national courts.Footnote ⁹⁴ In fact, there is a standing precedent in Kenya declaring that, where a Community law conflicts with the Kenyan Constitution, the Community law is null and void to the extent of that inconsistency, in view of the clear and unambiguous provisions of section 3 of the constitution.Footnote ⁹⁵ The failure by member states to comply with article 8 poses a serious challenge to the Community's ability to enforce its laws and implement its activities within member states. Given the provisions of national constitutions, the national legal systems do not provide an adequate and appropriate environment for the implementation of Community programmes and activities. This has greatly undermined the achievement by the Community of its objectives and explains the failure to challenge in national courts various national measures, laws and regulations which contravene Community law.Footnote ⁹⁶

Since it came into force in January 2005, the enforcement and implementation of the Protocol have been beset with difficulty. Various measures, actions and omissions by member states concerning the Protocol evidence a total lack of political will in its enforcement and implementation.

The Protocol established a single customs territory and common customs laws. Three years later, the member states have still not eliminated non-tariff barriers and these continue to undermine trade within the Community. In all the member states, there are extensive customs and immigration procedures, work permit requirements, business registration and licensing procedures, police roadblocks and checks, highway weighbridge stations and quality standards inspections, and export certification procedures, all of which hinder trade.Footnote ⁹⁷ This is despite the fact that article 13 of the Protocol obliges member states to eliminate with immediate effect all existing non-tariff barriers on intra-Community trade and to refrain from introducing new ones.

There has also been little progress in harmonizing domestic and Community laws.Footnote ⁹⁸ This is particularly true regarding laws relating to the Community's customs union. Consequently, businesses do not operate on a level playing field. The result is trade distortions within the Community. Incidences of double taxation within the customs territory are yet to be dealt with decisively. National tax administration institutions still work independently, with each preoccupied with the administration of national tax laws. Although the three founding member states signed the East African Double Taxation Treaty in 1997, it has never been implemented because Tanzania and Uganda have failed to incorporate it in domestic legislation. Furthermore, the three founding member states apply different excise duty rates on similar products, such as tobacco and carbonated drinks. While Tanzania bases its rates of excise duty on tobacco products on the local content, Kenya looks at the price range and Uganda uses the brand name as the criterion to determine the rate of tax. For carbonated soft drinks, Kenya charges an excise duty rate of 10 per cent, Uganda 13 per cent and Tanzania 9 per cent. The differences in domestic taxes of the member states make the same products cheaper in certain countries within the same market. This scenario definitely undermines the objective of the customs union: the development of a single functioning market.

Member states have tended to disregard and undermine the certainty of the Community's customs union laws by taking unilateral customs decisions and altering common external tariff rates every year as part of national budgets. For instance, in its 2006–07 budget, the Tanzanian government granted another local company, NIDA Textile Mills Ltd, the Community's external tariff (CET) exemption amounting to $18 million for imported bleached fabrics, as an incentive to export 50 per cent of its products. This was contrary to Community law, as it was done before consultation and approval by the relevant Community organs.Footnote ⁹⁹

In their national budgets for the 2006–07 financial year, the member states reviewed a number of tariffs on several products which had been fixed at the inception of the customs union following lobbying by each state.Footnote ¹⁰⁰ For instance, a CET rate of 0 per cent was set for crude palm oil. This was changed to 10 per cent at the instance of Tanzania, presumably to protect local industries. In the same measure, duty for raw materials for the manufacture of printing and packaging paper was reduced to 0 per cent from 10 per cent.Footnote ¹⁰¹

As already noted, the first amendments to the Treaty were ill-informed, ill-advised and in bad faith. The events leading to the amendment of the Treaty in 2006 further demonstrate the statist nature of the Community. This marked a realization that national governments regard the Community as a government institution which must conform to the whims of the government of the day, notwithstanding the interests of the Community. At best, it showed that politicians, both presidents and ministers, were in charge of the Community. At worst, it displayed how the dreams of over 80 million east Africans lie in the hands of five men: their presidents.

It is therefore apparent that, despite the establishment of the organs and several institutions of the Community,Footnote ¹⁰² these bodies have delivered very little. To date, integration has primarily consisted of the negotiation of agreements, policies and strategies.Footnote ¹⁰³ As currently structured, the Community fits into the African regionalism straight-jacket that is state centric and non-participatory, a phenomenon that has been responsible for the failure of several other regional organizations in Africa.

In a nutshell, the Community's existence has always been characterized by the inability of its organs and institutions to hold member countries to account and to supervise and ensure the effective implementation of the Treaty. Partial national and individual political interests have taken precedence over Community interests, which take a backseat. As such, the Community is yet to resonate well with the ordinary people. It has remained an exclusive members club: the East African Governing Parties Club.

This analysis shows that the Community seriously lacks legitimacy. What then could be the necessary reforms?

REFORMS FOR LEGITIMACY

There is a general belief that the Community's objectives are ambitious and, as such, can hardly be achieved.Footnote ¹⁰⁴ This belief becomes more plausible when one looks at how the Community operates. To challenge this belief, it is paramount that deliberate reforms are undertaken urgently to ensure its legitimacy.

The reforms must be geared towards making the Community effective, transparent, democratic, representative, dynamic and stable.Footnote ¹⁰⁵ For it to be effective, it is mandatory that all decisions of the Community's organs and institutions are implemented. For this reason, there must exist clear procedures for the enforcement of such decisions. Transparency demands that all Community decisions, processes and activities are open, accessible and simplified in order that all individuals, stakeholders and interest groups in the Community are able to understand and follow them without the need for special expertise. Democracy requires that the people in the Community are at the very least involved directly or indirectly in those decisions of the Community's organs and institutions that affect their lives.

For the purposes of the future expansion of the Community and to accommodate new developments and contingencies, the Community's structure and framework must be flexible and dynamic, without compromising on stability. There must be proper systems to address conflicts and crises that may jeopardize the Community's existence. The reforms therefore will require sustained effort at both national and Community level.

As established, the Community does not possess an independent political will or effective political independence in the exercise of the functions delegated to it by member states under the Treaty. It is entirely governed by the governments of the member states. Legitimization of the Community is therefore a challenge to the practice of national governments, as underpinned by the theory of statehood and the doctrine of sovereignty in international law. As such, it is bound to be opposed by national governments. Under public international law, states are the primary players on the international arena and any secondary player such as an international organization is their delegate. These organizations are accordingly primarily accountable only to the constituting states. Legitimization of regional organizations therefore necessarily means a shift in the theory and practice of regionalism as it is conventionally understood.

For the Community, the need for a shift is founded on the premise that its functions, policies, activities and programmes affect the sovereign functions of member states and, by extension, the individual rights of the persons residing in those countries. This gives individuals the right of participation, representation, accountability and transparency in the Community's affairs. Indeed, under the Treaty, the Community has a life of its own. It is an independent body with an independent political and legal personality and the potential to shape the lives of millions of people in the member states through its policies, laws, regulations and directives. It must therefore address urgently the issue of legitimacy in order for it to succeed.

As has been shown, the Community is non-inclusive by being non-representative, non-participatory, opaque and unaccountable, thus making it illegitimate. As a first step towards legitimizing the Community, deliberate and intentional measures must be taken to ensure its transparency. The Community website must contain more than mere information about the organization, its organs, institutions, press statements and communiqués from the Summit. It must publish decisions of the Court as soon as they are delivered, annual reports and budgets, strategic plans, reports of committees, all statutes, directives and regulations, and any other important Community documents. The website must be up-dated regularly and incorporate important links. The Community must move with speed and declassify its documents. Access should not be restricted to any documents without good reason and, more importantly, any restriction should only be for a limited period of time. To facilitate the dissemination of information, the Community should establish a document information facility within its website.Footnote ¹⁰⁶ There should be an effective system for disseminating information in the Community, anchored on freedom of information legislation to entrench the right to information.

Due to the limited access to internet facilities in the region, the Community should establish independent public relations offices in all member states, where individuals can access and acquire Community information and documents available under the document information facility. This would greatly enhance openness and transparency within the Community.

The Community needs to go beyond the call for creating an enabling environment for the private sector and civil society, and legalize and formalize the participation of all stakeholders in Community activities. Various interests and stakeholders must be involved and consulted on all matters of the Community that affect them. The Community should develop a system that identifies all stakeholders and interest groups and ensures their full participation in all relevant Community matters.Footnote ¹⁰⁷

Such participation would require the expansion of the Community's organs to pave the way for the representation of various interest groups and stakeholders. The Summit, as a starting point, should include no fewer than three non-state representatives, elected through an open and democratic process by various constituencies. Likewise, the number of Assembly members from each member state should be increased to 15. To be truly representative and to avoid being influenced by governments, political parties and any other irrelevant interests, the members should be directly elected by the people under clear rules and regulations enacted by the Community. Assembly members would then be accountable to the people.

To avoid delays in reaching important decisions, a Summit troika should be established, comprising three individuals who would discharge the Summit's functions and powers between meetings.Footnote ¹⁰⁸ It is cumbersome to convene meetings of the heads of states and governments of the member states whenever there is an urgent Community issue requiring their attention; this is even less practical now that there are five Summit members.

The involvement and participation of the private sector, civil society and all other stakeholders and interest groups will ensure that the Community's fate is not left in the hands of member state presidents, a fact that saw the demise of the former East African Community in 1977.

To ensure total dedication to the Community and independence, all Community officers, including the secretary general and judges, should be short-listed competitively by the Council, appointed by the Summit from those short-listed and finally approved by the Assembly. This would ensure that only qualified persons fill these positions. The officers would also be dependent on and dedicated to the regional agenda. Such a system would also ensure the indirect involvement of the people in the appointment of senior Community officers where the Assembly members are directly elected by the citizens of the member states.Footnote ¹⁰⁹ The Secretariat and the Court are two important organs in the enforcement and implementation of Community laws and programmes. Given the actions of member states so far, it is important and urgent that these two organs are strengthened and empowered to discharge their functions effectively without fear or favour. In discharging their functions, the officers should always act in the best interests of the Community.

Unless checked, the impunity exhibited by the member states in handling Community matters may render the Community irrelevant. As things stand, any Community programme, activity or project is seen in the eyes of nationals of member states as a programme, activity or project of the national government. It is important that the member states be required to discharge all their obligations under the Treaty and that the Community be allowed to function and establish itself in the lives of the people.

In order that persons in the Community may identify with and own Community programmes, it is necessary that all amendments to the Treaty and basic protocols, as well as the enactment of new protocols, be subjected to a referendum of the people within the Community. A referendum should be preceded by public consultation, debate and comment on the subject. This will prevent political leaders from manipulating the Community to suit their short-term political interests.

These are some basic but fundamental proposals for reform, aimed at freeing the Community from the tight grip of governments. This grip has prevented individuals from being involved and participating in Community affairs. The suggested reforms would go a long way towards legitimizing the Community. Achieving this will however require immense political will from the governments of the member states.

A requirement for referenda on material Community issues and the expansion of the Community's organs and institutions may at first glance appear costly. However, it must be made clear that there is a price for building a viable and meaningful regional institution. Because member states finance Community operations, the suggested reforms may, despite their fundamentality, be suspended because of lack of funds. The Community must therefore establish systems to generate revenue, in order that crucial and urgent reforms are not left at the mercy of state governments.

Meanwhile, the Community must justify its existence and utility by demonstrating its potential for creating employment, realizing quality and affordable services and goods, developing better communications infrastructure and growth in the gross domestic product of member states, and ensuring the rule of law, peace and security and democracy in the region. This will lay a firm basis for advocating for the proposed reforms.