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

Abstract

Although created as a court for an economic union, the Court of Justice of the East African Community has assumed a prominent role promoting respect for human rights. 3This project considers two related questions. First, I ask why the East African Court is pursuing this strategy, and what the opportunities and risks are for doing so? Second, the project tests the EACJ’s experience against prevailing theories of delegation to international tribunals: (i) ICs as Agents (ii) ICs as Trustees (iii) the Altered Politics Framework (iv) Constrained Independence Theory and (v) Bounded Discretion Theory. A major insight that emerges from this paper is the lack of a theory of delegation to account for international courts in developing countries. This paper points to the gap in the literature in appreciating how regional courts in developing countries with poorly functioning political systems where Executives and Legislatures have little or no legitimacy have assumed broad powers otherwise left to the political branches in developed democracies. To the extent that the conditions for application of contemporary delegation theories do not exist in developing countries, this poses a major challenge to delegation literature. I argue that the EACJ’s human rights jurisprudence is best understood against the fact that EAC governments have not been strong in their adherence to protecting and promoting human rights. They have been reluctant if not sometimes hostile to judicial enforcement of human rights even within their own domestic courts. This is a major reason why EAC governments have chosen not to confer human rights jurisdiction on the EACJ.As such, the EACJ’s human rights jurisprudence is creating new understandings of legality that these states do not subscribe to at home. On their part, EACJ judges have engaged in such decisions, in part, as a strategy to gain, promote and then protect their institutional power. In so doing, EACJ judges have made it a priority to make the court more effective and accessible to East Africans. They entrepreneurially built the EACJ’s role in the integration process through innumerable formal and informal contacts with lawyers, civil society groups, governmental agencies of EAC member States among others. As a result, the EACJ has developed a strong reputation within multiple networks of civil society, professional and other groups at the national and regional levels as a defender of human rights, the rule of law and good governance. These groups have in turn served as an insurance mechanism against extensive clipping of the EACJ’s jurisdiction or its suspension. They have also provided a continuing stream of cases that have demonstrated that there is a demand for the EACJ’s human rights case law. In exercising its power to decide human rights cases, the EACJ has done so with caution. This caution is necessary because there is no history or tradition of courts and law serving as a restraint or constraint on the exercise of state power in East Africa. Without the historical and cultural underpinning that gives courts and law legitimacy and authority to rule against powerful actors, the EACJ is heralding the recent arrival of political accountability through judicial review mobilized in large part by lawyers and lawyer-groups.Ultimately, this paper argues that human rights litigation in the EACJ is best seen as part of a broader strategy of judicial institution building by its Judges and Registrar together with the political mobilization by lawyers, lawyer groups and other civil society organizations. This litigation is giving voice to actors who did not have such legal recourse to advance their claims in the past. This mobilization is particularly important because discredited political institutions – parties, legislatures and executives – are not regarded as avenues of addressing the concerns of ordinary citizens in their own national jurisdictions.