Abstract:
The article exposes the difficult position in which the East African Court of
Justice (EACJ) finds itself when faced with matters containing human
rights allegations, which the Court is barred from deciding as such. The
EACJ is often called upon to draw a line between what might constitute a
human rights case and a claim relating to an East African Community
(EAC) norm which is not barred under article 27(2) of the East African
Community Treaty. As the main judicial mechanism of the EAC, the EACJ is
primarily mandated to interpret and apply EAC law, of which human
rights form part. Despite the existing limitations, the EACJ has clearly laid
down its position that it cannot ‘abdicate’ exercising its interpretive
mandate, even if a matter before it contains allegations of human rights
violations. In doing so, the EACJ has indirectly protected human rights in
the EAC through other forms of cause of actions, such as the rule of law
and good governance. This contribution advances two key arguments:
First, the EAC Treaty contains human rights norms that the EACJ cannot
escape from interpreting. Second, due to the continuing restrictions in
adjudicating human rights, as well as the existing human rights norms in
the EAC Treaty, the EACJ is trapped in precarious attempts to balance the
advancing of EAC norms, on the one hand, and adhering to the Treaty
restrictions in adjudicating human rights, on the other.
Description:
This article is based on the author’s LLD thesis prepared at the Centre for Human
Rights, Faculty of Law, University of Pretoria.
