Mission Creep or a Search for Relevance: The East African Court of Justice’s Human Rights Strategy

TABLE OF CONTENTS INTRODUCTION I. THE HUMAN RIGHTS JURISPRUDENCE OF THE EACJ A. The Katabazi Case B. Post-Katabazi Human Rights Cases II. EXPLAINING THE RISE OF THE EACJ'S HUMAN RIGHTS JURISPRUDENCE A. The Early Years: Constructing the Role of the EACJ in the EAC B. Backlash Following Nyong'o C. The Role of the Judges and the Registrar in Promoting the EACJ D. The Role of Interest Groups in Mobilizing the EACJ III. IMPLICATIONS OF THE EACJ'S EXPERIENCE FOR THEORIES OF DELEGATION A. Principal-Agent Theory B. ICs as Trustees C. The Altered Politics Framework D. Constrained Independence Theory E. Bounded Discretion Theory F. How the EACJ Defies IC Theories CONCLUSION INTRODUCTION The East African Court of Justice (EACJ) was inaugurated in 2001 following its establishment as the judicial organ of the East African Community (EAC). (1) A primary objective of the EAC is to establish a customs union, a common market, a monetary union, and ultimately a political federation. (2) In 2005, the EAC became a customs union, and in 2010 it became a common market. (3) Rwanda and Burundi became members of the EAC ten years after its establishment. (4) Therefore, including the original members (Kenya, Uganda, and Tanzania), the East African Community has five members. When the EAC was founded, its executive organs did not contemplate an active role for the EACJ in the regional integration process, much less so with respect to human rights.'1 As a result, they did not adequately fund the court in its initial years--or subsequently--or give much attention to establishing it as an independent judicial organ. (6) Notwithstanding these challenges, the EACJ exemplifies a new trend in African regional human rights enforcement. Rather than serving as a tribunal to resolve trade disputes, as envisaged by its original designers, the court has evolved into one that seeks to hold member governments accountable for violations of human rights and to promote good governance and the rule of law. Like its counterparts the Economic Community of West Africa Court of Justice (ECCJ) and the now-suspended Southern African Development Community (SADC) Tribunal, the EACJ has become an important human rights court. The human rights jurisprudence that these courts have produced so far stands in sharp contrast to the general reluctance of national courts in EAC member states to enforce human rights guarantees. (7) Remarkably, these courts have construed their powers broadly to allow them to decide human rights cases even though their respective constitutive treaties--in the case of both the EACJ and the SADC Tribunal--do not include a specific grant of jurisdiction to entertain human rights cases. (8) The EACJ's growing human rights case law is part of a new form of rights-based legal mobilization that must be seen in the shifting normative context in which trade agreements include human rights in their preambles. This mobilization by lawyers, legal groups, and political actors has allowed courts to become new forums for political struggle and the vindication of rights claims. (9) In addition, the judges have engaged in a strategy to gain, promote, and then protect their institutional power. The EACJ has capitalized on this shifting context and in the process has redefined its role as conceived in the Treaty for the Establishment of the East African Community. The court has decided important human rights cases, including a case involving the military arrest and detention of fourteen individuals after they had been granted bail by the High Court of Uganda; the failure to investigate over 3,000 cases of murder, torture, cruelty, and inhumane or degrading treatment committed by security forces against the government of Kenya; and incommunicado detention by the government of Rwanda. The EAC member states, however, perceive the EACJ's self-proclaimed human rights jurisdiction as a subversion of their sovereignty. …