Hostname: page-component-7b7567c8c-7pwfn Total loading time: 0 Render date: 2026-11-12T05:22:19.494Z Has data issue: false hasContentIssue false
  • English
  • Français

Botched-Up Elections, Treaty Amendments and Judicial Independence in the East African Community

Published online by Cambridge University Press:  04 March 2010

Henry Onoria
Rights & Permissions [Opens in a new window]

Abstract

This article examines developments in the East African Community from October 2006 to April 2007, against the background of the challenge to the “elections” of members of the East African Legislative Assembly. The article also examines the saga over the Kenyan regional court judges, emanating from the decision to grant an injunction restraining the nine Kenyan nominees to the Assembly from taking office and to dismiss a recusal application brought against the court's Kenyan judges. The article explores the hurried amendments to the Community treaty in a largely political response to the regional court's decisions and the implications for the future of the court and the Community. The haste involved in amending the treaty itself raises concerns over the growing tendency to flout processes and procedures at the national and community levels for the sake of political expedience on the part of the partner states.

Information

Type
Research Article
Information
Journal of African Law , Volume 54 , Issue 1 , April 2010, pp. 74 - 94
Copyright
Copyright © School of Oriental and African Studies 2010

INTRODUCTION

The East African Community (the Community) represents an attempt at economic integration at a regional level. Such attempts are not new to the region, with cooperation in the same mould and name having previously existed from 1967–77; in effect, the Community was re-established under the 1999 Treaty for the Establishment of the East African Community (the Treaty). The Community was officially launched in January 2001.Footnote 1 Its institutional structure is constituted by the Summit (consisting of the heads of state of the partner states),Footnote 2 the Council of Ministers (as the major policy organ),Footnote 3 the East African Legislative Assembly (the Assembly) (as the legislative organ)Footnote 4 and the East African Court of Justice (the Court) (as the judicial organ).Footnote 5 Additional institutional elements include the Coordination Committee,Footnote 6 Sectoral CouncilsFootnote 7 and Sectoral Committees.Footnote 8 Over the past seven years, the various organs have been involved in activities aimed at fostering integration. Notably, these have resulted in the conclusion of several protocols on combating drug trafficking,Footnote 9 standardization and quality assurance,Footnote 10 inter-university cooperation,Footnote 11 the Lake Victoria Basin,Footnote 12 and a customs union,Footnote 13 as well as agreements on road transport,Footnote 14 inland waterway transport,Footnote 15 and search and rescue,Footnote 16 and rules of procedure for the AssemblyFootnote 17 and the Court.Footnote 18 These endeavours and the fast tracking of the political federation, undertaken primarily by the Assembly, Council of Ministers and Sectoral Councils, have nonetheless been painstakingly slow. On the other hand, the Court received its first case in 2005 and, between October 2006 and April 2007, rendered decisions that brought the Community to a crossroads: from December 2006 to May 2007, the Community was paralysed by a challenge before the Court to the election of Kenya's members of the second Assembly. The second Assembly was only inaugurated on 4 June 2007, over six months after the expiry of the term of office of the inaugural Assembly. In March 2007, as the crisis over the inauguration of the second Assembly escalated in the wake of the Court's decisions, several controversial amendments to the Treaty were adopted. Meanwhile, the election of Uganda's members to the Assembly was challenged before the Constitutional Court, which rendered its decision on 28 May 2008.

This article examines the implications of decisions that were handed down by the Court as well as by national courts from 2006 to 2008, touching on the election of members of the second Assembly. It also examines the implications of the March 2007 amendments to the Treaty. Together, the decisions of the courts (in particular the Court) and the Treaty amendments have prompted questions about the relationship between the various key Community organs. Crucially, the Court, whose task is to interpret and apply the Treaty, has been placed at the centre of controversies that have emerged over the separation of powers (or institutional balance) and the limits to the surrender of sovereignty. These developments also highlight the difficulties in operationalizing the Treaty and, even more significantly, flaws in internal political processes both within the Community and in its partner states.

“ELECTIONS” OF MEMBERS OF THE SECOND LEGISLATIVE ASSEMBLY

The background to the fracas that enveloped the Community in the past two years is the election of members to the second Assembly. Under the Treaty, the Assembly is constituted of nine members from each of the Community partner states and five ex officio members.Footnote 19 The inaugural Assembly was sworn in on 30 November 2001 and its five year term expired on 29 November 2006. The Treaty requires the legislative organ of each partner state to undertake the election of members to the AssemblyFootnote 20 and, to that end, each partner state has provided a legislative framework for the purposes of the electoral process.

In Kenya, the legal framework, first used for electing its members to the inaugural Assembly, is the Treaty for the Establishment of the East African Community (Election of Members of the Assembly) Rules of 2001 (2001 Rules). Pursuant to the 2001 Rules, on 25–26 October 2006, the National Assembly carried out the “election” of Kenya's members for the second Assembly. The electoral process entailed the approval of lists of nominees put forward by the major political parties: the Kenya African National Union (KANU), the Forum for the Restoration of Democracy-People (FORD-P) and the National Rainbow Coalition (NARC). The controversy that resulted in a reference being filed before the Court arose from two lists of nominees for NARC: one submitted by the party leader to the clerk to the National Assembly as required by the 2001 Rules, and another presented to the Committee of the National Assembly by the government chief whip on 25 October 2006. The committee adopted the latter list that, with the exception of one NARC nominee who appeared on both lists, excluded the other nominees on the party leader's list. The names on the chief whip's list, together with those of the KANU and FORD-P nominees, were forwarded to the Community secretary general as the Assembly members elected by Kenya. In the aftermath, officials from various political parties in Kenya, including Professor Peter Anyang' Nyong'o and four of the NARC nominees on the party leader's list, filed a reference to the Court regarding the non-compliance of the electoral law and process with article 50 of the Treaty.Footnote 21 On 27 November 2006, the Court granted an interim injunction to prevent the nine “elected” Kenyan members from taking office, pending determination of the main reference. The Court rendered its decision on the main reference on 30 March 2007.

The Court's decision centred on whether the Kenyan National Assembly had undertaken an election and, in that respect, whether the 2001 Rules complied with article 50 of the Treaty. The Court addressed the question of compliance with regard to both the electoral rules and the actual electoral process that took place. In the Court's view, article 50 of the Treaty constitutes the national assemblies of the partner states into “electoral colleges” for the purpose of electing members of the Assembly.Footnote 22 The representative character of the elected members and the procedure for their election is left to the discretion of the national assemblies. Nonetheless, the Court found that neither the electoral law nor the process that took place on 25–26 October 2006 complied with article 50 of the Treaty. First, the Court determined that, although the 2001 Rules provided for proportional representation (of parties in the National Assembly), that only “partially” complied with article 50 of the Treaty.Footnote 23 This was because the 2001 Rules did not provide for a real but only a fictitious “election” of members to the Assembly.Footnote 24 Furthermore, although not in issue, the Court regarded that the absence of any provisions in the electoral rules to cater for “gender and other special interest groups” led to a “significant degree of non-compliance”.Footnote 25

Secondly, in order to determine whether the process that took place on 25–26 October 2006 was an “election”, article 50 needed, in the Court's view, to be interpreted in the context of the Treaty as a whole.Footnote 26 In that regard, although the literal interpretation of “election” is “choice” or “selection”, a contextual interpretation, bearing in mind the intention of the partner states, did enjoin the idea of a process of “voting”.Footnote 27 Reflecting on the fact that the partner states could not have intended to attach no meaning to the words “election” and “to elect”, the Court addressed their likely intentions as follows:

“[I]t [is] unlikely that in adopting Article 50, the parties to the Treaty contemplated, let alone intended, that the National Assembly would elect the members of the Assembly other than through voting procedure … [A]n election through voting may be accomplished using such diverse procedures as secret ballot, show of hands or acclamation. The electoral process may or may not involve such preliminaries as campaigns, primaries and / or nominations. An election may be contested or uncontested … [T]he bottom line for compliance with Article 50 is that the decision to elect is a decision of and by the National Assembly”.Footnote 28

Considering the 2001 Rules and the process that took place on 25–26 October 2006, it was at best a selection and, at worst, an appointment of Kenya's members of the Assembly. To that end, the Court determined that the 2001 Rules did not comply with article 50 of the Treaty and that the Kenyan legislative body did not “undertake or carry out an election within the meaning of article 50 of the Treaty”.Footnote 29

As was the case in Kenya, the election of Uganda's members was wrought with controversy, save that the legal challenge to elections there was presented before the national courts rather than the Court. Having reverted to the multi-party system of governance in 2006, Uganda adopted a new legal framework regarding the election of members to the Assembly: the 2006 Election of Members of the Assembly Rules (2006 Rules). On the basis of the 2006 Rules, on 24 August 2006 the Parliament of Uganda undertook what was purportedly an election of Uganda's members, with slots allotted to political parties on the basis of their numerical strength in Parliament; this resulted in seven slots for the National Resistance Movement-Organisation (NRM-O) and two for the Forum for Democratic Change (FDC). The question of the representation of “independents”, who had a similar numerical strength to the FDC, was ignored. On the day of the election, the process of electing the nine members from Uganda involved the clerk to Parliament receiving the names of individuals (who had been internally “elected” by the political parties and forwarded to the speaker) from the NRM-O and FDC party whips.Footnote 30 The speaker of Parliament then announced that the individuals listed had been duly elected to represent Uganda in the Assembly.

The provisions of the electoral law and the election itself were challenged in a petition filed before the Uganda Constitutional Court by Jacob Oulanyah, a former member of Parliament who had sought unsuccessfully to stand for the election as an independent.Footnote 31 The court found in the petitioner's favour, holding that the “other shades of opinion”, as stipulated under article 50 of the Treaty, included “independents”.Footnote 32 It also held that barring “independents” from participating and contesting elective office infringed the right to freedom of association.Footnote 33 More crucially, deferring to the decision of the East African Court of Justice in Prof Anyang' Nyong'o, the Constitutional Court determined that, in light of the procedure adopted by Parliament, there had been no election of Uganda's members to the Assembly. Justice Mpagi-Bahigeine stated:

“Even if the rules decided to define ‘election’ as ‘the approval of names’ by the House, this appears not to have been carried out. The process clearly omits the process of election, though voting might take different forms … by show of hands, secret ballot or acclamation. The Court … is thus left in doubt as to how this ‘process approval of names’ took place. [We] would thus hold that no elections ever took place.”Footnote 34

The court expressed concerns over Parliament's failure to undertake the role that was required of it under article 50 of the Treaty, observing that “[i]t delegated its functions to the political parties”,Footnote 35 with the result that “[t]he internal election conducted by the political parties was not … the election of Parliament as the electoral college”.Footnote 36

Experiences with the elections of members to the second Assembly show a failure to comply with the provisions of the Treaty.Footnote 37 Even in Tanzania the elections were challenged before the Court, although the Court felt that the challenge as to whether two of the nine members were lawfully elected fell within the jurisdiction of the Tanzanian courts.Footnote 38

RESPONSES TO REFERENCE AND DECISION IN PROF ANYANG' NYONG'O

The responses of the partner states occurred long before the determination of the reference in Prof Anyang' Nyong'o. In fact, they occurred immediately after 27 November 2006, when the Court granted the injunction to stop the “elected” Kenyan members taking office pending determination of the reference. The responses were largely political in the form of attacks on the Court, particularly from the Kenyan government, through its president and minister for East African and regional cooperation who alleged bias in the Court, purportedly stemming from the Court's Kenyan judges.Footnote 39 The Summit also condemned the Court on 30 November 2006.Footnote 40 Two key developments occurred that particularly highlight the political underpinnings of the responses. First, the partner heads of state adopted, in an extra-ordinary summit held in December 2006, several amendments to the Treaty. The amendments mainly regarded the Treaty provisions concerning the Court and, following ratification by the partner states, came into effect on 20 March 2007. Secondly, Kenya filed an application in the Court on 22 January 2007 imputing bias and lack of impartiality in the Court's Kenyan judges and, as of consequence, sought to have set aside the 27 November 2006 ruling granting the interim injunction. The Court delivered its ruling on that application on 6 February 2007. The implications of these two responses are evident in the context of the timing and political manoeuvring of the partner states.

Imputing “bias” and lack of impartiality in the Court's Kenyan judges

The application imputing bias in the Court's Kenyan judges was filed on the date set for the scheduling conference on the reference in Prof Anyang' Nyong'o.Footnote 41 It followed a call by Kenya's solicitor general and his legal team upon Kenyan judge, Justice Moijo M ole Keiwua, in his chambers, that the judge and Justice Kasanga Mulwa, the other Kenyan judge in the Court, disqualify themselves from hearing the reference. In the application before the Court, the disqualification or recusal of the Court's Kenyan judges was sought on the premise that they failed to disclose their suspension from judicial duties in Kenya pending an inquiry into judicial misconduct. It was contended that the judges' participation in the reference had given rise to a perception of bias on their part, and that the judges had a duty to recuse themselves from participating in the hearing of the application for the injunction which, in the circumstances, should result in the Court's ruling of 27 November 2006 being set aside. Subsequently, during the hearing, the application for recusal by reason of perceived bias was withdrawn against Justice Kasanga Mulwa and was thus limited only to Justice Moijo M ole Keiwua.

In considering the application for recusal, apart from appraising the law and practice on the matter, the political subterfuge on the part of Kenya and the other partner states was not lost on the Court. Invariably, the Court found itself defending the amendments to the Treaty against what it perceived as intimidation in the wake of the hostile response to its ruling of 27 November 2006, and the politicking and insinuations of Kenya's solicitor general and his legal team before the Court. These factors were in the background as the Court addressed the law, the procedure on recusal and the facts surrounding the application. First, the Court noted that besieging the judge with a recusal application and its subsequently being rushed to “open court” amounted to intimidation, and was at variance with the normal procedure in such applications, which entailed a meeting in chambers with the judge in the presence of the other party.Footnote 42 The Court observed: “[T]he Solicitor General's call on the President [Justice Moijo M ole Keiwua] in the morning of 22 January 2007, fell far short of the accepted practice for it was more akin to intimidation than an effort to discover the judge's response to alleged apprehension concerning his impartiality.”Footnote 43

Secondly, the Court felt that Justice Moijo M ole Keiwua had no obligation to disclose the facts regarding his suspension from judicial activity in Kenya, given that such facts were matters of public knowledge.Footnote 44 Thirdly, the Court reflected on the delay in raising concerns as to the perception of “bias” arising from perceived “animosity” against the Kenyan government, when there had been the opportunity to do so when the judge was part of the coram for the case on 24 November 2006.Footnote 45 This was more so, since the judge's suspension and investigation had been in the public domain and media since October 2003. Once again, the Court was awake to the political manoeuvrings that followed the ruling granting the interim injunction on 27 November 2006. The Court voiced its concerns about the manoeuvrings behind the belated objections to the judge in no uncertain terms:

“[T]he applicant's position is exacerbated by the events following the granting of the interim injunction. The applicant did not only file the response to the reference within the abridged time he had undertaken to the Court, but according to the information disclosed in his application, he was involved in a parallel process of amending the Treaty. We note that clearly the amendment is a direct reaction to the impugned ruling of the Court. In his response to the reference filed on 30 December 2006, the applicant continues to protest the Court's jurisdiction … but does not hint, let alone raise, any objection to the sitting of any member of the Court on ground of any appearance or perception of bias. He chooses to do so now when the case is moving close to hearing and uses the opportunity to inform the Court through … affidavit … that the amendments to the Treaty have been ratified by the Republic of Kenya and awaits [sic] ratification by the other two Partner States to come into force.”Footnote 46

The concern over the solicitor general alluding to the proposed amendments to the Treaty in an affidavit underscores how this ploy only highlighted the political cloud hanging over the Court. The Court expressed its concerns on the ploy while trying to steer clear of the politics:

“While we are anxious to refrain from commenting on the merits and / or demerits of the process of amending the Treaty in reaction to an interim Court order, we are constrained to say that any reasonable court would conclude, as we are inclined to do, that this application was brought more out of a desire to delay the hearing of the reference than a desire to ensure that the applicant receives a fair hearing. In our view, this is tantamount to abuse of court process, and we would be entitled to dispose of the application on that finding alone.”Footnote 47

In the end, the Court dismissed the recusal application and counselled that the Community's principles included the rule of law, of which one of the cardinal rules is “respect of court decisions”.Footnote 48

March 2007 amendments to the Treaty

Although they did not come into force until March 2007, the Treaty amendments were introduced and adopted in December 2006.Footnote 49 The amendments were adopted within weeks of the Court's ruling of 27 November 2006 granting the interim injunction in Prof Anyang' Nyong'o, and it is evident from the ruling on the recusal application that the amendments were a reaction to the grant of that injunction.

The amendments primarily relate to the Treaty provisions regarding the Court, and can be stated as follows. First, they introduced a two-tier court structure, with the first instance division and an appellate division of the Court: the amendments detail the jurisdiction and composition of the two divisions.Footnote 50 Secondly, they introduced limits to the Court's jurisdiction to exclude any jurisdiction conferred on, or matters reserved to, organs and institutions of the partner states.Footnote 51 Thirdly, a limitation was introduced with regard to access to the Court, providing that cases can only be lodged with the Court within two months from the date of commission, or knowledge, of the impugned act or conduct.Footnote 52 Fourthly, and perhaps most significantly, additional grounds were introduced for the removal of judges, beyond misconduct and infirmity; these include allegations of impropriety from partner states as the basis for suspension from the exercise of judicial functions at the Court, with the new grounds allowing partner states to appoint temporary judges in the place of suspended judges.Footnote 53

Given that the Treaty amendments target the Court, this poses questions about institutional balance and the relationship between the key Community organs and, more critically, the independence of the Court vis-à-vis the potential politicization of the judicial process in the Community.Footnote 54

IMPLICATIONS OF JUDGES' SAGA AND AMENDMENTS ON THE FUTURE OF THE COURT AND COMMUNITY

Judicial independence and security of tenure

The condemnation of the Court by the Summit and the Kenyan government following the granting of an interim injunction was unnecessary. This only served to ridicule and tarnish the Court's image and, coupled with the filing of the recusal application imputing bias in the Court's Kenyan judges, sought to undermine the Court. First, by imputing bias, the integrity of the Court's judges was put into question. Secondly, the Court's independence was placed at a crossroads by what, in the Court's view, amounted to “veiled intimidation” and an attempt to influence its decisions.Footnote 55 Thirdly, the responses were disrespectful of court decisions and, as the Court noted, undermined the rule of law as a fundamental principle of the Community.Footnote 56

The implications of the Treaty amendments regarding the Court are even more far-reaching. Although the establishment of the two-tier court is laudable, the timing of the initiation of the amendments is suspect. In fact, the amendment to establish an appellate division seems to have been intended, given the insinuations by Kenya's solicitor general to the envisaged amendments during the hearing of the recusal application,Footnote 57 to intimidate the Court. The amendments render the existing Court as the first instance division of the revamped Court; its judgements and rulings, including those that granted the interim injunction and dismissed the recusal application, are in effect appealable.Footnote 58 Those insinuations seem to have been intended to remind the Court of this fact. In a reference filed to challenge the treaty amendments,Footnote 59 the Court remarked with regard to the amendments and the recusal proceedings against the Kenyan judges: “[t]he only reasonable and irresistible inference from these provisions is that, while they may be of general application, they were designed to suit the circumstances of the two Kenyan judges on [the] Court”.Footnote 60 The Court further observed that the move to amend the Treaty could have been “capable of unduly influencing the pending judgment in Anyang' Nyong'o case”Footnote 61 but noted that: “[t]he fact that it did not have that effect is credit to the sense of independence on the part of the two judges together with the other judges on the panel, and to their resolve to uphold the principles of judicial integrity and judicial independence”.Footnote 62

Ultimately, the amendments will have the effect of weakening, rather than strengthening, the Court as an organ of the Community. This is evident when one considers the additional grounds introduced for the removal or suspension of judges of the Court, and the powers of the Summit over the Court which underlie the amendments. These undermine the security of tenure of the judges and ultimately the Court's judicial independence. First, the introduction of additional grounds for the removal of judges beyond misconduct and infirmity to include allegations of impropriety militates against security of tenure. This is especially so where the alleged misconduct, dishonesty, fraud or moral turpitude arises from within the partner states as the basis for suspending a judge from the exercise of judicial functions at the Court. In fact, the amendment to article 26 of the Treaty is intended to address the kind of problem faced during the recusal application in Prof Anyang' Nyong'o. To that end, the perception of bias in a judge facing an inquiry over misconduct or impropriety within a partner state is to be dealt with by suspending him / her from the exercise of judicial functions at the Court. More damaging to security of tenure is the fact that the suspension and removal of judges on the basis of the new additional grounds is without any recourse to a tribunal, as is the case with the grounds of misconduct and infirmity. In East African Law Society, the Court considered, on its own motion, this dilemma posed by the amendment to article 26 of the Treaty, albeit from a slightly different angle:

“Article 26 of the Treaty established a mechanism for the removal of judges for misconduct and inability to perform as determined by an independent tribunal appointed by the Summit, obviously applying uniform standards. When read together with article 43(2) it becomes apparent that the objective of the Treaty is for judges of the Court to be independent of the Partner States they originate from. The introduction of automatic removal and suspension of judges on grounds raised or established in the home State, and applicable to only those in judicial or public office, makes possibilities of applying un-uniform standards to judges of the same court endanger the integrity of the Court as a regional court.”Footnote 63

In fact, under the amendments, it is unnecessary to require a judge to recuse or disqualify himself or herself; that task is now out of the hands of the judge and lies solely with the Summit. In practical terms, under the amendments, Justice Moijo M ole Keiwua could have legally been removed from the Court by the Summit on the basis of a pending anti-corruption inquiry against him, dating back to 2003.

Secondly, the amendments allow the partner states to appoint temporary judges, in the place of the suspended judges, for the duration of the suspension. This is liable to abuse in a manner that compromises the Court's independence and impartiality. A partner state may commence an inquiry into the alleged misconduct or impropriety of a sitting judge simply to have a more complacent temporary judge appointed to the Court to do that state's bidding on a matter before the Court. In effect, it offers partner states and the Summit the opportunity to handpick agreeable judges and to weed out troublesome judges. Furthermore, with the manner in which inquiries are conducted (and the time they take) in African states, a temporary judge is likely to become a major misnomer. Overall, the amendments raise the likelihood of the politicization of the appointment and removal of judges of the Court. Notably, in East African Law Society, the Court called upon partner states to revisit the amendments to article 26 “at the earliest opportunity of reviewing the Treaty”.Footnote 64

Jurisdiction of the Court vis-à-vis limits to surrender of sovereignty

The amendments to articles 27 and 30 of the Treaty introduce limitations to the jurisdiction of the Court; first, the Court's interpretative jurisdiction shall not extend to “jurisdiction conferred by the Treaty on organs of Partner States”; and secondly, the Court's jurisdiction to receive references on the legality of acts or the conduct of a partner state or Community organ shall not extend to matters “reserved under [the] Treaty to an institution of a Partner State”.Footnote 65 These amendments are in themselves a reaction to the Court's decisions in Prof Anyang' Nyong'o. They highlight the objections raised by Kenya's attorney general to the Court's jurisdiction during the hearing of both the application for the grant of an interim injunction and the reference; the challenge to the Court's jurisdiction was on the premise that “internal party mechanisms” or “national courts” should resolve any dispute over the NARC nominees. It was argued that national politics should be sheltered from scrutiny by the Court and, most importantly, aggrieved persons should have first engaged national political or judicial processes. The Court rejected the objection, which was interlaced with assertions of sovereignty of partner states over certain matters, and rightly so. First, as the Court pointed out, the dispute related to the compliance of the electoral law and process with article 50 of the Treaty.Footnote 66 The Court rejected what it viewed as an attempt to “strait-jacket this reference into the parameters of article 52(1) [of the Treaty]”;Footnote 67 the reference, according to the Court, did not regard whether the third intervenersFootnote 68 were “elected members” in terms of article 52 of the Treaty but rather whether there had been an “election” as envisaged under article 50 of the Treaty.Footnote 69 The latter raised a question of compliance with the Treaty and, therefore, of its interpretation under the provisions of articles 23 and 27(1).Footnote 70 Secondly, the Court highlighted the primacy of its jurisdiction with regard to interpretation of the Treaty, in spite of the fact that, under articles 33 and 34, the Treaty “obliquely envisages interpretation … by national courts”.Footnote 71 Regarding the perceived jurisdiction of national courts to interpret provisions of the Treaty, the Court explained:

“Article 33(2) appears to envisage that in the course of determining a case before it, a national court may interpret or apply a Treaty provision. Such envisaged interpretation, however, can only be incidental. The Article neither provides nor envisages a litigant directly referring a question as to the interpretation of a Treaty provision to a national court. Nor is there any other provision directly conferring on the national courts the jurisdiction to interpret the Treaty.”Footnote 72

Significantly, however, the amendment to article 27 of the Treaty goes against the grain of the principles of international law; the interpretation of treaties is the function of international judicial bodies and national organs cannot arrogate to themselves the power to interpret provisions of a treaty. Determining whether an election relative to the national law of a partner state complies with article 50 of the Treaty remains within the purview of the Court; it cannot be left to the unilateral interpretation by the partner state or its organs and institutions. The Court did note in Prof Anyang' Nyong'o that, had the issue concerned whether the nominees were lawfully “elected” (as opposed to whether there was an “election”), then the matter would properly be reserved to the national courts under article 52 of the Treaty.Footnote 73 This was indeed the position it took regarding the reference brought challenging the election of Tanzania's members to the Assembly in Mtikila. The election of two of Tanzania's nine members to the Assembly was contested on the grounds that the term of two members of the Assembly, elected in a by-election in March 2006, had not yet expired. The Court ruled that it had no jurisdiction, holding that: “the declaration that two persons were improperly elected and that they are not members of the Legislative Assembly is the domain of the High Court of Tanzania and not this Court”.Footnote 74

The amendment to article 27 of the Treaty is actually superfluous when it is considered against articles 33(2) and 34 of the Treaty; the latter provisions, while not denying the jurisdiction of national courts to interpret and apply Treaty provisions, reaffirm the primacy of the Court's interpretation of the Treaty. In East African Law Society, that primacy is reiterated by the Court as imperative to the harmonious and uniform interpretation of the Treaty:

“By the provisions of Articles 23, 33(2) and 34, the Treaty established the principle of overall supremacy of the Court over the interpretation and application of the Treaty, to ensure harmony and certainty. The new … proviso to Article 27 and … paragraph (3) of Article 30 … have the effect of compromising that principle and / or contradicting the main provision. It should be appreciated that the question of what ‘the Treaty reserves for an institution of a Partner State’ is a provision of the Treaty and a matter that ought to be determined harmoniously and with certainty. If left as amended the provisions are likely to lead to conflicting interpretations of the Treaty by the national courts of the Partner States.”Footnote 75

Notably, although the Court and the Ugandan court found similarly in Prof Anyang' Nyong'o and Oulanyah respectively that there had been no election in the terms envisaged under article 50 of the Treaty, that could have resulted in altogether different decisions.

Furthermore, the amendments would undermine the basic premise under which the Community is founded, that is, the principle of subsidiarityFootnote 76 or “delegation of powers”. In Prof Anyang' Nyong'o, the Court deferred to the principle of delegated powers with regard to the election of Kenya's members of the Assembly in these terms:

“[T]he National Assembly made the [2001] rules not in exercise of sovereignty inherent in a State, but in exercise of a discretionary power conferred on it by the Treaty. It was bound to make rules that conform to the primary purpose of the Article that conferred the power, which primary purpose is to provide for the election of nine members of the Assembly by the National Assembly of each Partner State.”Footnote 77

The Court emphasized the need to balance “individual state sovereignty with integration”.Footnote 78 In fact, the supposition that the amendments to articles 27 and 30 of the Treaty should afford primacy over certain matters to national organs and institutions of the partner states is a dangerous one; under the principle of subsidiarity, this could hinder activities of, or within, the Community, with a partner state violating a provision of the Treaty or its protocols and pleading that the matter is reserved to its national organs or institutions. This would particularly be the case with the customs union. In that event, not only would the Court have no jurisdiction over the matter, but neither would other Community organs, such as the Assembly.

Access to the Court by East African residents

The additional amendment to article 30 of the Treaty introduces a limit to the period in which cases can be lodged with the Court. Article 30 of the Treaty confers on the residents of East Africa what, in Prof Anyang' Nyong'o, the Court referred to as the “right of direct access to the Court” to challenge the legality of impugned acts or conduct of partner states or Community organs.Footnote 79 In effect, this is a provision which confers locus standi [the right for a litigant to act and be heard] and, as the Court further pointed out, in itself, it “creates a cause of action”.Footnote 80 As the Court also noted, the right of direct access by residents negates the requirement to exhaust any local remedies.Footnote 81

The amendment introduces a limitation period by requiring matters to be lodged before the Court within two months from the date of commission or knowledge of the impugned act or conduct.Footnote 82 Invariably, this new requirement constitutes a major constraint on the right of access to the Court. Whatever its immediate objective in the overall scheme of the other amendments (the previous references having been filed not so long after the commission of the impugned acts),Footnote 83 two months is manifestly a short period. It seems intended to dissuade residents from challenging the conduct or acts of partner states or Community organs. Too often it is difficult for the average resident to know or be appraised of what is happening within a partner state, not to mention the region or the Community. In fact, this is the undoing of the amendment. First, there is great difficulty in determining when the two month period starts to run. It is necessary to ascertain when an enactment, publication or directive comes into being or a decision or action occurs. In the case of the election of Assembly members, as in Prof Anyang' Nyong'o and Mtikila, the period would run from either the date of the election or the date the names are sent to the secretary general of the Community. On the other hand, the enactments, directives or decisions of Community organs come into being, unless provided otherwise, on the date of publication in the East African Gazette.Footnote 84 How readily available and accessible the Gazette is to East African residents is a serious question.Footnote 85

Secondly, the impugned acts or conduct coming to the “knowledge” of an East African resident is similarly a fluid notion. This calls for the ascertainment of the point at which the resident becomes aware not only of the act or conduct but also of the fact that it contravenes the Treaty. The “knowledge” test would lead to an absurd situation where East Africans are obliged to keep abreast of the actions of partner states and be required (and placed under an undue burden) to peruse all Community laws to ascertain whether any action or legal provision is or may be inconsistent with the Treaty or its protocols. This would stifle the right of access to the Court. Furthermore, the “knowledge” test under article 30(2) of the Treaty is likely to run into difficulties given that, as is well recognized under limitation law, an exception obtains in situations where there is a “continuing breach” arising from the impugned act or conduct.

Process of amendment of Treaty and ratification

Apart from the substantive implications of the amendments to the Treaty, the process and procedures adopted in the making of the amendments and in their ratification by the partner states is a major concern. The amendments to the Treaty were rushed through in the month of December 2006. First, within a week of the Summit meeting of 30 November 2006 condemning the Court over its 27 November 2006 ruling granting the interim injunction, the staff of the three attorneys general and the EAC Secretariat had produced a draft of the amendments to the Treaty. Within two days, 7–8 December, the draft was approved by the attorneys generalFootnote 86 and cleared by the Council of MinistersFootnote 87 which, following responses from partner states between 11 and 13 December largely accepting the amendments, forwarded them to the Summit, which adopted them on 14 December 2006.Footnote 88 The hasty amendment of the Treaty was invariably characterized by politicking during the meeting of the Council of Ministers on 7–8 December 2006, as reflected in the opinion of one commentator: “According to the official report of the 12th Extraordinary Meeting of the Council of Ministers of the Community held in Arusha on December 7, the Kenyan Attorney General is said to have secretly prevailed on his counterparts from Uganda and Tanzania to agree to the amendments, which were passed [by] the Council of Ministers the next day.”Footnote 89 In effect, less than a fortnight after the Court's ruling, amendments to the Treaty had been adopted and set for ratification.

Secondly, in early January 2007, about six weeks after the ruling, Kenya ratified the amendments to the Treaty, a process that was followed by Uganda in February and Tanzania in March. The question is whether the process of amending the Treaty accords with not only the principle but also the spirit of article 150 of the Treaty. In principle, the six weeks from drafting the amendments to the first ratification may well accord with article 150. However, in envisaging a period of 120 days (as stipulated in article 150(3) and (4)) from the submission of amendment proposals to the secretary general of the Community and the receipt of comments from partner states, the spirit of this provision is to allow for consultation with local people and stakeholders. In fact, popular participation and consultation is a key ideal of the Community.Footnote 90 The haste involved in the amendment process is inimical to that ideal. In East African Law Society, the Court addressed the question of popular involvement and consultation. Acknowledging that “the text of the Treaty is not explicit on the requirement of people's involvement in its amendment”,Footnote 91 the Court nonetheless drew on the subsequent practice of partner states in applying the Treaty when it determined that such involvement was necessary with regard to Treaty amendments. The Court observed this extensively:

“[N]either article 150 nor any other provision of the Treaty specifies the modality and extent of people's participation in cooperation activities in general and in the amendment of the Treaty in particular. Ideally, it would have been easier for this Court to uphold and apply the proposition that every amendment of the Treaty must involve prior consultation of the people, if the draftsman had provided the measure for determining such involvement or participation … [W]e … take judicial notice of two major activities subsequent to the Treaty coming into force, which were preceded by extensive consultations. We do take judicial notice of the fact that consultation on the Zero Draft Protocol to operationalize the Extended Jurisdiction of the Court is still on-going. We also take judicial notice of the fact that the proposal by the Summit to fast-track political federation of the partner States was subjected to extensive consultations of diverse categories of the people in the Partner States, and ended in a determination that there was no consensus among the people to alter the sequence of events set out in Article 5(2) of the Treaty for the gradual phasing of the integration process towards the ultimate stage of political federation … [T]he two sets of consultations … undoubtedly reflect agreement among the Partner States that the principle of people-centred cooperation is also applicable to the Treaty amendment process … [W]e also take judicial notice of the consultations that precede the conclusion of the Protocol on the Customs Union and the on-going consultations on the Common Market, which is the next stage in the integration process … [W]e take into consideration the said series of consultations as having established agreement among the parties to the Treaty that in seeking to apply or alter the provisions of the Treaty, the people shall be consulted … We think that construing the Treaty as if it permits sporadic amendments at the whims of officials without any form of consultation with stakeholders would be a recipe for regression to the situation lamented in the preamble of ‘lack of strong participation of the private sector and civil society’ that led to the collapse of the previous Community.”Footnote 92

Reflecting on the events of December 2006, the Court observed that “[i]t is evident … that no serious widespread consultations on the amendments within the Partner States were intended let alone carried out”,Footnote 93 and it went on to regard the “failure to carry out consultation outside the Summit, Council and Secretariat” as “inconsistent with a principle of the Treaty [which] therefore constituted an infringement of the Treaty within the meaning of Article 30”.Footnote 94 Ultimately, the Court felt that any infringement of the Treaty in this respect had not been a conscious one and was rectifiable;Footnote 95 in the end, it invoked the doctrine of prospective annulment, stating that “the requirement of involvement of people in [the] Treaty amendment process shall have prospective application”.Footnote 96

Additionally, the process and procedures for the national ratification of the amendments raise significant questions. In Kenya, less than two weeks after their adoption by the Summit, the Cabinet purported to ratify the amendments without taking them to the National Assembly as required by law.Footnote 97 In Uganda, although the amendments were similarly discussed at only Cabinet level, that may have sufficed as domestic ratification, in the light of Uganda's ratification law.Footnote 98 In any event, non-compliance with domestic ratification procedures may only raise issues of domestic legality, while it is the international act that signifies expression of the consent to be bound by a treaty. Nonetheless, these incidents raise pertinent concerns about tendencies to flout processes and procedures, both at national and Community levels, for the sake of political expedience.

SOME CONCLUDING OBSERVATIONS

Prof Anyang' Nyong'o and Oulanyah, involving the election of Kenyan and Ugandan members to the Assembly, highlight the pre-eminence of politics over the observance of proper electoral procedure. These two cases, coupled with the row over Tanzania's members in Mtikila, highlight the political undertones of electing Assembly members. The lobbying and politicking within political parties inevitably resulted in the divergence of electoral procedures in the partner states (and, even more unsurprisingly, the flouting of those procedures).Footnote 99 As the process of harmonizing laws proceeds in the Community, it should extend to the electoral laws regarding the election of Assembly members. The electoral laws and procedures of partner states should prescribe the carrying out of genuine elections of Assembly members and the reflection of democratic ideals and representation.Footnote 100

The hurried amendments to the Treaty also illustrate the extent to which politicians will go to settle scores with the Court at the expense of adherence to the principle of the rule of law embodied in the Treaty. The tampering with judges' security of tenure and with access to the Court does not augur well for the fair dispensation of justice for East African citizens. This generally undermines the “institutional balance” or separation of powers that is expected to define the roles and functioning of the various Community organs.

Footnotes

Ibid.
Ibid.
Ibid.

References

1 The Treaty entered into force on 7 July 2000. The original partner states of the Community are Kenya, Tanzania and Uganda. Burundi and Rwanda were admitted under treaties of accession during the fifth extraordinary summit of East African Community heads of state held in Kampala, Uganda on 18 June 2007, and became full members of the Community on 1 July 2007. It is envisaged that the integration process will ultimately result in a political federation: see art 5(2) of the Treaty.

2 The Treaty, arts 10–12.

3 Id, arts 13–16.

4 Id, arts 48–65.

5 Id, arts 23–47.

6 Id, arts 17–19.

7 Id, art 14(3)(i).

8 Id, arts 20–22.

9 Protocol on Combating Drug Trafficking in the East African Region, 13 January 2001.

10 Protocol on Standardization, Quality Assurance, Meteorology and Testing, 15 January 2001.

11 Protocol on the Establishment of the Inter-University Council for East Africa, 13 September 2002.

12 Protocol on Sustainable Development of Lake Victoria Basin, 29 November 2003.

13 Protocol on the Establishment of the East African Community Customs Union, 2 March 2004. See also East African Community Customs Management Act, No 1/2005.

14 Tripartite Agreement on Road Transport, 21 April 2001.

15 Tripartite Agreement on Inland Waterway Transport, 30 November 2002.

16 Search and Rescue Agreement, 13 September 2003.

17 Rules of Procedure for the East African Legislative Assembly, 2001.

18 East African Court of Justice Rules of Procedure, November 2004. See also East African Court of Justice Arbitration Rules, November 2004.

19 Art 48(1). The ex-officio members of the Assembly are the three members of the Council of Ministers, the secretary general and the counsel to the Community.

20 The Treaty, art 50. Art 50(1) provides: “The National Assembly of each Partner State shall elect, not from among its members, nine members of the Assembly, who shall represent as much as feasible, the various political parties represented in the National Assembly, shades of opinion, gender and other special interest groups in that Partner State, in accordance with such procedure as the National Assembly of each Partner State may determine.”

21 Prof Peter Anyang' Nyong'o & 10 Others v Attorney General of Kenya & 2 Others (with Abdurahin Haitha Abdi & 11 Others intervening), EACJ ref no 1/2006 (unreported) (Prof Anyang' Nyong'o).

22 Id at 29–30.

23 Id at 37.

24 Id at 37–38 and 42–43.

25 Id at 37.

26 Id at 30–31.

27 Id at 31 and 33–34.

28 Id at 34 (emphasis added).

29 Id at 34 and 43.

30 Parliamentary Debates, Hansard (24 Aug 2006) at 671.

31 Jacob Oulanyah v Attorney General constitutional petition no 28/2006 (unreported) (Oulanyah).

32 Id, judgments of Mpagi-Bahigeine JA at 14 and Mukasa-Kikonyogo DCJ at 11.

33 Id, judgments of Mpagi-Bahigeine JA at 14, Mukasa-Kikonyogo DCJ at 9 and Kitumba JA at 12. The court also noted that, given that independents were allowed to stand for election to international fora (such as the Pan-African Assembly) and locally (Parliament and local councils), the bar to stand for election to the Assembly constituted an infringement of the right to equal protection of the law: id, judgments of Mpagi-Bahigeine JA at 16–17, Mukasa-Kikonyogo DCJ at 10–11, Kitumba JA at 12 and Byamugisha JA at 11–12.

34 Id at 22. See also judgments of Mukasa-Kikonyogo DCJ at 15–16, Okello JA at 7-8, Kitumba JA at 16 and Byamugisha JA at 16–17.

35 Id, judgment of Kitumba JA at 16.

36 Id, judgment of Byamugisha JA at 17 (emphasis added).

37 In the aftermath of the Court's decision (and subsequent politically charged responses to it), the Kenyan National Assembly adopted new electoral rules, the East African Community (Election of Members of Assembly) Rules, 2007, on 23 May 2007. Under these rules, fresh elections were held for Kenya's members to the Assembly on 29 May 2007: “Election of members of the East African Legislative Assembly” Gazette Notice No 4873 (vol CIX no 37, 31 May 2007). The second Assembly was then inaugurated on 4 June 2007. In Uganda, the attorney general lodged an application for a stay of execution of the Constitutional Court decision pending an appeal to the Supreme Court: Attorney General v Jacob Oulanyah constitutional application no 1/2008. The Supreme Court granted an interim stay of execution on 23 June 2008: Attorney General v Jacob Oulanyah constitutional application no 2/2008 (unreported). The main application for stay of execution (application no 1/2008) was, as of 30 November 2008, yet to be heard. As of the same date, the attorney general had yet to lodge an appeal against the Constitutional Court decision.

38 Christopher Mtikila v Attorney General of the United Republic of Tanzania & Another (Dr George F Nangale & 8 Others intervening) EACJ ref no 2/2007 (unreported) (Mtikila). See also note 74 below and accompanying text.

39 See “Irate Kibaki clips wings of EAC judges” (18 December 2006) The East African 3.

40 EAC Official Communiqué of the Summit (30 November 2006).

41 Attorney General of the Republic of Kenya v Prof Peter Anyang' Nyong'o & 10 Others, EACJ application no 5/2007 (unreported).

42 Id at 14 and 15.

43 Id at 14.

44 Id at 19–20.

45 Id at 20 and 22–23.

46 Id at 22–23 (emphasis added).

47 Id at 23 (emphasis added).

48 Id at 26–27.

49 The then partner states ratified the amendments to the Treaty (and deposited instruments of ratification with the secretary general of the Community) on the following dates: Kenya, 8 January 2007; Uganda, 26 February 2007; and Tanzania, 19 March 2007.

50 See amendments to arts 1, 23, 24 and 35 of the Treaty (including the insertion of new paragraphs) and the insertion of new arts 35A (appeals) and 140(4A) (transition).

51 See amendments to arts 27 and 30 of the Treaty (including the insertion of a proviso to art 27 and a new para (3) in art 30).

52 See amendments to art 30 of the Treaty (by the insertion of a new paragraph (2)).

53 See amendments to art 26 of the Treaty (including the deletion of para (1) and its replacement with a new expanded para (1) and the insertion of new paras (2A) and (2B)).

54 It is to be noted that there were unsuccessful attempts before the Court and national courts to seek injunctive relief against the amendments becoming part of the Treaty or being implemented; see East African Law Society & 4 Others v Attorney General of the Republic of Kenya & 3 Others, EACJ application no 9/2007 (unreported); and Prof Peter Anyang' Nyong'o & 10 Others v Attorney General & Another, case no 49/2007 (unreported). The latter case was filed before the High Court of Kenya. See also below at note 97.

55 Above at notes 42–43 and accompanying text. This was evident in the unsubstantiated submissions by Kenya's solicitor general that the “people of East Africa had lost confidence in the Court”: Prof Anyang' Nyong'o, above at note 41 at 10 and 11.

56 Above at notes 47–48 and accompanying text. This was more so as the ruling of 27 November 2006 was only an interim order on the status of Kenya's nominees to the Assembly, and the Court had yet to determine the reference on its merits.

57 Attorney General of the Republic of Kenya v Prof Peter Anyang' Nyong'o, above at note 46 and accompanying text.

58 See arts 35A and 140(4A). See also above at note 50 and accompanying text.

59 East African Law Society & 4 Others v Attorney General of the Republic of Kenya & 3 Others, EACJ reference no 3/2007 (unreported) (East African Law Society).

60 Id at 34.

61 Ibid.

62 Ibid.

63 Id at 45 (emphasis added).

64 Ibid.

65 Above at note 51 and accompanying text.

66 Prof Anyang' Nyong'o, above at note 21 at 26.

67 Id at 19.

68 The third interveners, Saphina Kwekwe Tsungu, Catherine Ngima Kimura, Clarkson Otieno Karan, Augustine Chemonges Lotogo and Gervase Buluma Kafwa Akhaabi, were the five persons approved by the National Assembly as NARC nominees.

69 Prof Anyang' Nyong'o, above at note 21 at 29–30.

70 Id at 10, 19–21 and 26.

71 Id at 20–21.

72 Id at 21 (emphasis added).

73 Id at 19–20.

74 Mtikila, above at note 38 at 12.

75 East African Law Society, above at note 59 at 44–45.

76 Art 1 of the Treaty defines the principle of subsidiarity as “the principle which emphasises multi-level participation of a wide range of participants in the process of economic integration”.

77 Prof Anyang' Nyong'o, above at note 21 at 42–43 (emphasis added).

78 Id at 43.

79 Prof Anyang' Nyong'o, above at note 21 at 21.

80 Id at 18. The question whether art 30 envisages “public interest litigation” was not addressed by the Court in either Prof Anyang' Nyong'o or Mtikila, although in Prof Anyang' Nyong'o it noted that art 30 (as well as arts 28 and 29) did not require the claimant to show a “right or interest that was infringed and / or damage that was suffered as a consequence of the matter complained of in [a] reference”: id at 16–17 (emphasis added). In East African Law Society (the injunction case), the Court reiterated the “special causes of action” under art 30 of the Treaty and went a step further to adopt a liberal locus standi position that recognizes public interest litigation: “The applicants are Bar Associations in their respective Partner States and have a duty to promote adherence to the rule of law. We are … satisfied that the applicants are genuinely interested in the matter complained of, that is, the alleged non-observance of the Treaty by the Respondents”: above at note 54 at 7. In East African Law Society, the Court observed in the main reference that art 30 vests in residents of partner states the “right to access the Court for the purpose of challenging any infringement of provisions of the Treaty” and that it was “a deliberate provision to ensure that East Africans for whose benefit the Community was established participate in protecting the integrity of the Treaty”: above at note 59 at 14.

81 Prof Anyang' Nyong'o, id at 21.

82 Above at note 52 and accompanying text.

83 The Prof Anyang' Nyong'o reference was filed on 9 November 2006, about 15 days after the contested election of Kenya's members to the Assembly on 25–26 October 2006.

84 See for example as regards regulations and directives of the council: art 14(5) of the Treaty.

85 Interestingly, the East African Law Society filed the reference (and an application for an interim injunction) in respect of the Treaty amendments on 18 May 2007, on the basis of the publication of the amendments in the East African Gazette on 20 March 2007. 18 May 2007 was a Friday with the next Monday being 21 May 2007. Notably, the amendments were also gazetted within the partner states, for example Kenya, where they were published in legal notice no 38 in the Kenyan Gazette on 20 March 2007: legislative supplement no 20, 20 Mar 2007; the amendments are set out in the schedule to the supplement.

86 Report of the extraordinary meeting of the attorneys general (7 December 2006).

87 Report of the 12th extraordinary meeting of the Council of Ministers (7–8 December 2006).

88 Report of the 4th extraordinary meeting of the Summit of heads of state (14 December 2006).

89 “Irate Kibaki”, above at note 39.

90 The Treaty, arts 5(3)(g), 7(1)(a) and (d), and 127–29.

91 East African Law Society, above at note 59 at 43.

92 Id at 28–30 (emphasis original).

93 Id at 27.

94 Id at 31.

95 Id at 43–44.

96 Id at 44.

97 Although Kenya ratified the Treaty amendments by depositing the instrument of ratification with the secretary general of the Community on 8 January 2007, ratification by the National Assembly only occurred more than three months later; see “Motion for ratification of amendment to the East African Community Treaty by the National Assembly” (25 April 2007). The motion was adopted on 16 May 2007. For a critique of the process, see D Deya “An institutional analysis of the East African Community: Some initial reflections” (unpublished paper presented at a colloquium on the proposed amendments to the Treaty for the Establishment of the East African Community, held at Impala Hotel, Arusha, Tanzania on 16–17 May 2007) at 17. In fact, the amendments were challenged in the suit filed by Prof Anyang' Nyong'o before the High Court in Kenya on the premise that the National Assembly's authority to ratify or approve the ratification of treaties (or in this case amendments to the Treaty) was implicit in the legislative powers of the Assembly under arts 30 and 46 of the constitution. This was rejected by the court, which held that the acts leading to the ratification of the Treaty amendments were properly within the capacity of the minister of foreign affairs with regard to treaties under international law: Prof Peter Anyang' Nyong'o, above at note 54.

98 See Ratification of Treaties Act, cap 204 (Laws of Uganda 2000). Under sec 2(a) of that act, all treaties are to be ratified by Cabinet except for certain specific treaties that require ratification by Parliament. Of note, the Treaty was ratified by the Parliament of Uganda; see “Motion for a resolution of Parliament to ratify a treaty under section 3(b)(ii) of the Ratification of Treaties Act, 1998 (Act No 5 of 1998)” Parliamentary Debates, Hansard (27 April 2000) at 9632–45.

99 In Prof Anyang' Nyong'o, the Court observed that, while the electoral rules in Tanzania did provide for elaborate elections and those in Uganda were silent on the issue of elections (save to provide for successful nominees as “elected members”), there was, in effect, “no agreement of the parties regarding interpretation of Article 50” that could “be inferred from the said practice” and, in its opinion, “there is a glaring lack of uniformity in the application of Article 50” on the part of the partner states: Prof Anyang' Nyong'o, above at note 21 at 27.

100 At the 5th extraordinary summit of the heads of state held in Kampala, Uganda on 18 June 2007, it was reported that the Secretariat was working on a bill to regulate the election of members to the Assembly.