Striking a balance between community norms and human rights : the continuing struggle of the East African Court of Justice

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Authors

Possi, Ally

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Juta Law

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.

Keywords

Human rights, Jurisdiction, Sub-regional courts, African economic communities, East African Court of Justice (EACJ), East African Community (EAC)

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Citation

A Possi ‘Striking a balance between community norms and human rights: The continuing struggle of the East African Court of Justice’ (2015) 15 African Human Rights Law Journal 192-213 http://dx.DOI.org/ 10.17159/1996-2096/2015/v15n1a9