ARUSHA II

During the hearing last week, I thought the judges' questions indicated that they were likely to uphold their jurisdiction to determine the matter before it. It was not clear whether they would grant the injunction. The court delivered its ruling on 27^th November 2006 upholding its jurisdiction and issuing an injunction restraining the speaker and the clerk of the Legislative Assembly from recognizing the Kenya representatives or permitting them to participate in any function of the EALA until final determination of the reference.

The court held that it had jurisdiction to entertain the application as it was empowered by Article 27(1) of the treaty which provides, “The Court shall initially have jurisdiction over the interpretation and application of this Treaty.” The court also relied on Article 30 of the treaty which states, “Subject to the provisions of Article 27 of this treaty, any person who is resident in a Partner State may refer for determination by the Court, the legality of any Act, regulation, directive decision or action of a Partner State or an institution of the community on the grounds that such Act, regulation, directive, decision or action is unlawful or is an infringement of this Treaty.” Based on these two provisions the court concluded that it had jurisdiction to determine whether the process by which Kenya's representatives to the EALA were nominated and the Elections Rules under which the process was undertaken were unlawful or an infringement of Article 50 of the the Treaty. Article 50(1) of the Treaty provides, “the National Assembly of each Partner State shall elect, not from among its members, nine members of the assembly ......”The court concluded that, “On the face of it therefore, in order to determine the reference the court has to decide what the expression “each Partner State shall elect” means and whether what transpired fits or does not fit within that meaning. We are satisfied that this is an issue that falls within the jurisdiction of the court.”It is instructive to note that the court did not refer to Article 52 of the Treaty which provides, "Any question that may arise whether any person is an elected member of the Assembly or whether any seat of the Assembly is vacant shall be determined by the institution of the Partner State that determines questions of the election of members of the National Assembly responsible for the elections questions."

Had the court considered that the matter before it was a “question concerning elections” it would have declined jurisdiction. When this Article 52 is read with Article 50, it becomes clear that it is the intention of the treaty to leave all matter of election within the province of the partner states. Article 50 leave the matter of election procedure to the local institutions . It provides that the election of members shall be “ in accordance with the procedure as the National Assembly of each Partner State may determine.”

The Court will now have to determine whether constitutes an “election” within the meaning of the treaty. Any definition adopted by the court should seek to promote the treaty objectives of good governance, participatory democracy and representation of gender and other interests while leaving space for each partner state to adopt rules peculiar to the circumstance of the particular partner state. During the hearing, the respondents expressed the fear that the court will be involved in long drawn out disputes on membership of the EALS originating from the partner states. I do not think this fear is well founded as the states will have to adopt rules that meet the courts expectation. Once this is done, disputes would be left to the local courts to resolve.

Let's wait for the political fallout....

LEGAL BLOGS

Check out these two blogs here and here. Enjoy.

ARUSHA

I won’t make any excuses for not posting. It’s been a busy term. I was at Arusha last week attending a matter at the East Africa Court of Justice. The case concerned Kenya’s nominated MP’s to the East Africa Legislative Council. While the substance of the case basically deals with the political fallout between the NARC coalition partners, the legal issues raised are interesting.

Under the Treaty, all questions concerning elections are left to “an institution of the partner state.” It was the contention of the Attorney General that sovereignty of in respect of elections had not been ceded to the community. The thrust of the applicants arguments was what had occurred was not an “election” as envisaged by the treaty. They argued, that court could decide what constituted an election after which the domestic court would deal with the elections as defined by the court. The applicants also argued that they did not a proper an adequate remedy within Kenyan law. They argued that they could not challenge the election with the National and Presidential Elections Act. The respondents countered this argument by stating that Act could accommodate disputes relating to EALC members. If authority were needed for this, it is to be found in the case of Kipkalya Kones vs Kimani Wanyoike and Others where, notwithstanding the fact that the National and Presidential Elections Act deals only with elected members of Parliament, the Act was read to include nominated members. Moreover, even where a right is granted by the treaty, which forms part of the laws of Kenya, then a party can approach the High Court by any procedure that is acceptable to the High Court.

The court would have to answer the whether the definition of elections amount to a “question corning elections” and therefore a matter subject of the jurisdiction. If the court is of the view that it can interpret the word “elections” then its jurisdiction over elections over the member states will be extended. We will all look forward to seeing more electoral disputes before the court.

The learned judges of the court had tough questioning for the parties. Justice Warioba was particularly tough and incisive. I would also not that the Kenya Attorney General presented the case on behalf of the government. I think this is the first time the Hon. Wako has appeared before any court to argue a matter for the state. I was impressed by his command of the facts, the law and persuasiveness. I would also say that he put forth the political implications of the case very well.

More on the case later ……..

Lamy tells it as it is?

Ivo

On something that is dear to our sainted host’s heart, WTO Director-General Pascal Lamy has been making rounds in American universities of late holding court on globalisation, global governance, economic dominance etc. At the Fletcher School, for example, apparently amidst heckling and in between defending the governance structures of the WTO, he admitted that “the world has left behind political colonialism, but still suffers from what he termed "economic colonialism." This report of his talk does omits this reference but Professor Joel Trachtman, makes up for this.

At Harvard, Lamy’s oeuvre was somewhat larger, but unfortunately not quite as forthright.

Read both Trachtman’s post as well as Lamy’s speech and see if does anything that reassures us that not only are the formal ‘global institutions’ profoundly undemocractic, but as the grand (now aged) theorist of democracy, R. A. Dahl, has argued (‘Can International Organizations be Democratic? A Skeptic’s View’,. in I. Shapiro and C. Hacker-Cordon (eds), Democracy’s Edges), incapable of being democratized.

Ivo