President Jakaya Kikwete
By Dr. Khoti Kamanga
The justification for dedicating attention
to the issue of regional integration in East Africa is not difficult to
discern. Contrary to thinking prevalent in the early decades of the
last century, contemporary international law, politics and economics
have all come to accept the reality of sub-regional and regional
intergovernmental mechanisms, of which regional economic blocs seem to
be the most pervasive.
The UN Charter, 1945 explicitly recognises
the role and significance of regional mechanisms, and in turn, regional
instruments like the African Union Constitutive Act, 2000 does
acknowledge the existence of “regional economic communities (RECs).
The EAC serves an attractive subject
matter of research for the additional reason that there exist divergent
interpretations or lacuna on several important issues. For instance,
while the prevalent approach is to trace regional integration to the
British colonial initiative in linking Uganda to the port of Mombasa by
rail (1894 - 1901), the truth of the matter, is that, ‘functional
integration’, along with other forms of socio-economic intercourse among
communities inhabiting the East African region, is of far more older
vintage. In other words, integration is not only a visible
characteristic of the region, but the scale of the integration and its
impact has been fairly considerable and stretches back to pre-colonial
times.
At the other extreme is the tendency of
presenting the contemporary EAC as having been launched on a clean
slate, as tabula rasa. To the contrary, the 1967 EAC ‘bequeathed’ to the
contemporary EAC of 1999, a number of institutions. These are what are
termed as “surviving institutions of the former East African Community”,
in particular, the East African Civil Aviation Academy; East African
Development Bank; East African School of Librarianship; and the
Inter-University Council for East Africa (IUCEA). We need also bear in
mind that embedded in the mechanisms (the 1984 Mediation Agreement, in
particular) set up to wind up the 1967 EAC, was the ‘Umbricht Clause’, a
pledge by EAC Partner States for continued dedication in the search for
cooperation. And, in this way, set the stage, so to say, for the
revival of the EAC we know today.
This ‘organic link’ between the two
distinct communities raises issues about ‘continuity and change’, an
issue, which has barely received sustained scholarly attention.
Besides these legal and historical
considerations is a socio-economic one, and draws parallels from western
Europe. It is now a widely acknowledged fact that the fate of countries
such as Ireland, Greece, Spain or Portugal, recorded astonishing
prosperity, largely on account of joining the European Union (EU).
In these more contemporary times, East
African regional integration calls for even far more attention given its
well established potential in confronting under-development, poverty
and marginalization while and thereby setting them on the road to
sustainable growth, prosperity and relevance in the global economy.
What lessons if any does this EU experience have for the EAC?
The colonial integration system,
bequeathed to the newly independent States of Kenya, Tanzania and
Uganda, in the form of the East African Common Services Organisation
(EACSO), was highly sophisticated, in terms of the institutional stage
of economic integration it had achieved. This study makes two broad
observations from that experience.
Firstly, that colonial policies and
practices were essentially propelled by the dual goals of subjugation
and exploitation, and were inherently discriminatory and unequal.
Secondly, and arising from this, it would have been out of the ordinary
for the colonial integration model to address (social, economic let
alone, political) inequities, nor be a people-centred, upstream
mechanism. Indeed, practically all studies of that period in time, the
unequivocal verdict was the glaring inequity in distribution of
benefits among Partner States.
When the three Partner States of Kenya,
Tanzania and Uganda revived regional integration by adopting the East
African Community Treaty in 1967, they set up an integration mechanism
with no comparisons in independent Sub-Saharan Africa, nor Western
Europe. However, it would appear that the ‘colonial legacy’ had not been
totally shed off from the post-independence Community established in
1967.
And the Treaty Establishing the East
African Community of November 30, 1999, acknowledges as much. Its
preambular section, points to “the main reasons contributing to the
collapse of the East African Community [in 1977], and among which, we
find “the continued disproportionate sharing of benefits of the
Community among Partner States”.
With what success has the contemporary EAC addressed the factors responsible for the collapse of the 1967 Community?
Achievements
The EAC Development Strategy 2006 – 2010 (EAC-DS) lists down 6:
1. Growing political commitment on the part of Partner States;
2. Established and functional organs and institutions;
3. Vast natural resources, friendly climate, rich cultural heritage;
4. Experience with regional integration and cooperation;
5. High Population; and
6. Relatively skilled human resource base.
One has to view this list with caution
especially in view of the “weaknesses” as well as “threats” which
continue to confront the EAC, and as acknowledged in the EAC-DS itself.
Never the less, what can be safely put down as the major achievements of
the new Community, since its inception in 1999? The most obvious, and
not totally irrelevant, is the sheer fact of survival.
The present economic community has just celebrated its 11th anniversary,
as opposed to the 1967-1977 initiative. Parallel to the issue of its
continued existence, is the fact that the EAC has remained remarkably
faithful to its integration projectory and time frame. From a Customs
Union, the EAC is now, at the stage of a Common Market, having
successfully negotiated and concluded two successive Protocols.
Noteworthy, initiatives towards creating a Monetary Union, are seemingly
underway.
Thirdly, and associated with the previous
two factors is, general political will. An intergovernmental initiative
which has survived its eleventh year and is seemingly growing, plausibly
is doing so because it enjoys the attention and support of the
respective governments of the Partner States. This is worth stressing
given the widely held position which attributes deficit of political
will as contributing to driving the erstwhile Community to its
ignominious death barely a decade into its existence.
Fourthly, is the expansion in its
membership, which saw Burundi and Rwanda join the existing founder
Partner States of Kenya, Tanzania and Uganda. Membership enlargement in a
way is a ‘vote of confidence’ in the EAC enterprise on the part of new
entrant States, to the extent that it is inconceivable for a State to
seek admission into an institution with unclear benefits.
Fifthly, is institutional growth,
especially of the Secretariat and of such key organs as the East African
Court of Justice (EACJ) and the East African Legislative Assembly
(EALA). Sixthly, has been the enactment of statutes (as exemplified by
Kenya’s Treaty for the Establishment of the East African Community Act,
2000) by the respective national parliaments, whose effect is to
‘domesticate’ the EAC Treaty, thus laying a sound legal basis for the
implementation and enforcement of EAC Law. Hand in hand has been the
establishment of a government Ministry with special mandate for EAC
matters.
It was pointed out to me by the Secretary
General that this situation contrasts the arrangement under the terms of
the 1967 EAC Treaty, in which, the respective Ministers with
responsibility for Community matters were permanently hosted in Arusha.
One of the resulting constraints of this situation was the absence of
political synergies with the centres of power back home in the capital,
in contrast to the contemporary set up in which the Minister is a
Cabinet member in addition to sitting in Parliament.
As a backdrop to examining the constraints
of besetting the EAC today, it may be instructive to also bearing in
mind, what seem to be the most pertinent lessons and best practices
emerging from Western Europe’s experience with economic integration. And
they are following:
Five lessons emerge from the European experience.
Firstly, Europe took the gradual approach.
Membership began with a humble 6 States, and expansion came in measured
doses over a period stretching nearly four decades.
Secondly, gradualism also finds reflection
in the legislative approach to the integration trajectory. No major
transformation leap was ever undertaken, without full scale
negotiations, consensus and adoption of a fresh treaty. There was
absolutely no haste, in popping champagne bottles.
Thirdly, through its integrationist
judgements such as Van Gend en Loos, and Costa, the European Court of
Justice, contributed in an invaluable manner in shaping the direction
and dictating the pace of integration.Fourthly, a major driving force
and determinant to the integration process and subsequent prosperity,
was the existence of an identifiable and shared fear and core interests,
which not only made integration attractive, but an absolute necessity.
Fifthly, was the presence of a passionate,
dedicated ruling elite, especially in the early years of the EEC, right
across all the founding States.
The Challenges
Understandably, accomplishments cannot be
separated from the numerous and quiet key challenges confronting the
integration process.
The EAC Development Strategy for 2006-2010
(in short, EAC-DS) offers unique insights to the general issue of
achievements, challenges and prospects. The section dealing with
‘Strengths, Weaknesses, Opportunities, and Threats’ (SWOT) is
particularly enriching.
As for major ‘Weaknesses’ afflicting the
Community, the EAC-DS isolates a far bigger number of factors than it
does in respect of ‘strengths’. It identifies the following:
1. Relatively young, fragile democracies;
2. Weak shared vision
3. Poorly harmonised (regional and national) policies, laws and regulations
4. Poor and imbalanced infrastructure
5. Weak national currencies and financial systems
6. Dependence on donor funding
7. Marginalisation of grass-root level stakeholders
8. Limited institutional capacity
9. Tardiness in implementing decisions
10. Weak Monitoring and Evaluation Mechanisms.
Interestingly, some of these factors have
been confirmed by independent, external assessors. In 2008, for
instance, the European Commission had commissioned a team of consultants
to examine the EAC system in respect of internal control, internal
audit, and procurement. While acknowledging EAC efforts to reverse the
trend in respect of the 3 areas identified, the consultants concluded by
stating:“We cannot provide reasonable assurance that should a
contribution agreement be signed between the European Commission and the
EAC, there are mechanisms and controls in place to ensure that the
funds will be used for their intended purpose”
Finally, the EAC-DS addresses itself to the critical and sobering issue of ‘Threats’. The following are cited:
1. Marked differences in the economies of Partner States
2. Weak competitiveness at the global level
3. Multiple membership in RECs and resultant competing interests
4. Weak linkage between development strategies and democratisation;
5. Global Warming and Environmental Degradation;
6. Brain Drain; and
7. Terrorism.
As one reads the EAC-DS, and at a general
level, one encounters difficulties in reconciling the declared
achievements with the weaknesses and threats confronting the institution
and integration process, by extension. On the one hand, the EAC prides
itself for a “growing political commitment” on the part of EAC Member
States, with well “established and functional organs and institutions”,
along with a rich “experience in regional integration and cooperation”.
On the other, we learn that the EAC is
dependent on donor funding to an unsustainable level with an equally
untenable membership subscription mechanism. To compound the problem, it
also emerges that the EAC has an “inadequately operationalised
regionally shared vision”, besides the marginalisation of grass-root
level stakeholders. The last two factors (weak shared vision, and
popular participation) are particularly striking, given the fact they
constitute part of the broad range of factors responsible for the demise
of regional cooperation in 1977.
Funding
This is a particularly acute problem. It
is instructive that in my interview with the EAC Secretary General,
bankrolling the EAC emerges as a challenge of considerable magnitude.
This was confirmed as I screened a number of key EAC documents,
including the EAC Annual Report, the EAC Budget Speech by the
Chairperson of the Council of Ministers, the EAC Development Strategy
2006-2010, and more notably, the EAC Partnership Fund Annual Report for
the Financial Year 2009/2010.
In the considered opinion of the Secretary
General, the current arrangement in which Partner States, contribute in
‘equal’ amounts is simply untenable, and a major determinant of one
(“limited financial resources and budgetary constraints”) of the ten
major weaknesses identified in the EAC Development Strategy.
It was revealed to me that, in the present
financial year, 48% of the EAC budget is derived from donations from
foreign governments and institutions, in particular, the EU. And, that
membership subscriptions barely suffice in covering staff remuneration
and related administrative costs, leaving no funds for running
development orientated programmes and projects.
A recent caption in a respectable regional
weekly paper captured the tragedy succinctly when it stated that: ‘EAC
Secretariat Starved of Cash, Facing Massive $325 Budget Shortfall’.
Relying on official documents presented at the recently ended Council of
Ministers in Arusha, on the status of Partner State contributions, hits
us with the astonishing news that each of the 5 Partner States, is in
significant arrears on their individual subscriptions, and which we have
indicated, hardly reflect the genuine needs of the organisation.
Membership
Parallel, or rather, related to the
challenge of predictability and adequacy in bankrolling the Community’s
programmes and projects, is the question of membership enlargement. In
the few days that I was at the Secretariat, I was unable to obtain any
specific, nor comprehensive information, as regards the financial
implications for the EAC arising from the accession by Burundi and
Rwanda.
Nevertheless, from the Partnership Fund
Approved Budget for 2009/2010, one encounters project code 4.00 entitled
‘Fast Tracking Integration of Rwanda and Burundi into EAC’, at a cost
of $600,000.00. At the same time, there is information to the effect
that Rwanda has honoured its subscription commitment by a margin of only
50 per cent whereas Burundi has paid only 7 per cent of its
subscription. Otherwise, the table below captures the extent to which
Partner States are in arrears in respect of their pledges of financial
commitment, raising justifiable questions about political commitment.
PARTNER STATE ARREARS
(Mil of USD)
1. Burundi 11,461,131.00
2 Tanzania 8,629,775.00
3 Kenya 6,160,510.00
4 Rwanda 6,150,674.00
5 Uganda 3,106,458.00
TOTAL
Finally, is the unique situation of the application for membership from the Democratic Republic of Congo (DRC) and the Government of South Sudan (GoSS). I was informed by the EAC Secretary General, that the DRC enjoys Observer Status at the EAC, with which around 70% of the country’s GDP is associated. To complicate matters even further, I was informed that, two EAC Partner States occupy exceptionally important economic ties with GoSS. Uganda is the leading trading partner while Kenya leads the list of investors.
Finally, is the unique situation of the application for membership from the Democratic Republic of Congo (DRC) and the Government of South Sudan (GoSS). I was informed by the EAC Secretary General, that the DRC enjoys Observer Status at the EAC, with which around 70% of the country’s GDP is associated. To complicate matters even further, I was informed that, two EAC Partner States occupy exceptionally important economic ties with GoSS. Uganda is the leading trading partner while Kenya leads the list of investors.
Accessibility/People-Centred EAC
OObservers, and indeed, the EAC Treaty of
1999 acknowledge how the downstream, top-down architecture of the 1967
Community, proved to be an Achilles heel for integration, and ultimately
contributed to the Community’s collapse in 1977. In a welcome
departure, the 1999 EAC Treaty repeatedly commits itself to create a
“people-centred” institution. I understand “people-centred” to mean,
primarily, an EAC ‘known and owned’ by the people for whose benefit the
Community was established. At the technical level, it should entail,
putting in place publicly visible and accessible, and even more
importantly, its policy and decision-making process genuinely, entails
popular participation.
In the course of my visit to the EAC
Secretariat, it came rather as a surprise to discover that the premises
(2nd Floor Ngorongoro Building at the AICC Complex) of the newly
established Directorate of Corporate Communications and Public Affairs,
is physically far removed from the public eye. Access to the
Directorate’s corridor and offices is only possible for those in
possession of special card keys, ironically placing the ‘public face’ of
a “people-centred” institution, in a ‘no-go area’ for the common man
and woman of East Africa.
It is instructive that the EAC-DS openly
takes cognisance of the unfortunate fact that a “people-centred” EAC has
yet to come into being. The EAC-DS admits how “key stakeholders
especially the grass-root stakeholders” have been marginalised from
policy design to the implementation.
One respondent went further to associate the notion of a “people –centred” EAC with that of an “East African Citizen” or “East African Identity”. His pessimism is founded on the argument that for “East African-ness” to take root and blossom there needs to be a generation raised around shared aspirations, values and a common education curriculum.
Even if this had not been achieved in the erstwhile EAC arrangement, there at least existed the ‘Common Services Organisations’ and the associated free movement of EAC staff. He continued by pointing out that if an institution such as the IUCEA was created but with a mandate extending to lower levels of the education ladder, it would begin becoming possible to groom persons who would with justification identify themselves as ‘East Africans’. And it is at that point, we can without hesitation be referring to the EAC as truly “people-centred”.
One respondent went further to associate the notion of a “people –centred” EAC with that of an “East African Citizen” or “East African Identity”. His pessimism is founded on the argument that for “East African-ness” to take root and blossom there needs to be a generation raised around shared aspirations, values and a common education curriculum.
Even if this had not been achieved in the erstwhile EAC arrangement, there at least existed the ‘Common Services Organisations’ and the associated free movement of EAC staff. He continued by pointing out that if an institution such as the IUCEA was created but with a mandate extending to lower levels of the education ladder, it would begin becoming possible to groom persons who would with justification identify themselves as ‘East Africans’. And it is at that point, we can without hesitation be referring to the EAC as truly “people-centred”.
And this assessment is hardly far fetched, because even the physical accessibility of key EAC organs is quiet limited.
A close examination of at least three
organs of the EAC, quiet readily confirms the conclusion of even, the
EAC-DS. The three are: the Secretariat; East African Legislative
Assembly (EALA) and the East African Court of Justice (EACJ). The
Secretariat, according to the EAC Treaty of 1999, is “the executive
organ” occupying a role not too dissimilar to that of the European
Commission with the EU.
It is, even in the admission of the EAC
Secretariat, often, initiating practically all major most strategic
programmes and projects. Besides the problem of financial sustainability
and human resource adequacy, one finds no windows through which the
general public is able to input, in a predictable manner into the policy
initiatives & decision making of the EAC Secretariat.
The EALA is an equally vital organ with
regard to policy and decision making within the EAC. As the principal
“legislative organ” of the Community, its potential for giving effect to
the “people-centred” EAC, is real and considerable. However, if the
EALA is to accomplish this a number of hurdles have to be recognised and
addressed. First, is the circumscribe manner in which the Parliament’s
functions are set out in the EAC Treaty, especially in respect of
safeguarding Parliament’s autonomy and effectiveness in the context of
separation of powers. Secondly, is the manner in which EALA members are
elected, which is not, by direct, popular ballot.
A third, and related constraint, is the ‘representativeness’ of the EALA. The EAC Treaty is quiet clear it seems, to the extent that it does not confine representation in EALA to “various political parties represented in the [respective National Assemblies of Partner States]”. Rather, the EAC Treaty calls for inclusion on the basis of “shades of opinion, gender, and other special interest groups” found in Partner States. Not surprisingly, the ‘unrepresentativeness’ (and therefore, legitimacy) of EALA, has already been the subject of one of the petitions filed at the EACJ.
A third, and related constraint, is the ‘representativeness’ of the EALA. The EAC Treaty is quiet clear it seems, to the extent that it does not confine representation in EALA to “various political parties represented in the [respective National Assemblies of Partner States]”. Rather, the EAC Treaty calls for inclusion on the basis of “shades of opinion, gender, and other special interest groups” found in Partner States. Not surprisingly, the ‘unrepresentativeness’ (and therefore, legitimacy) of EALA, has already been the subject of one of the petitions filed at the EACJ.
Another organ, with the potential of
projecting the EAC as a genuinely “people-centred” institution is the
EACJ. In my interview with the EAC Registrar, the Court’s numerous
achievements were pointed out.
They included staff recruitment,
specialised training for judges (on arbitration and ICT) and staff,
acquisitions for the library, to ultimately, delivering judgments over
two separate substantive cases. Indeed, in my interview with the EACJ
Registrar, he was emphatic: Thus far, the Court has discharged itself
honourably, in fact, “with impartiality, independently and assertively”.
And he added, “without fear or favour”. But an equal amount of time was
dedicated to challenges. To begin with, and this has particular
relevance for the “people-centred” argument.
As matters stand today, the Court’s
Registry is located in Arusha, which means that petitioners and other
aggrieved parties are compelled to trek down to this Northern Tanzanian
town from wherever within the EAC they are located. The curiosity and
resultant difficulties of parties who are both not Tanzanian residents,
leaving their respective national territory, to make it to Arusha cannot
be overlooked.
Secondly, in a legally and politically
controversial (and hastily made) amendment to the EAC Treaty, 1999, the
Court not only has assumed a bifurcated structure (First Instance and
Court of Appeal), with the immediate and expected cost implications as
well stretching the amount of time spent before concluding a case. I was
reminded that the entire amendment proceedings lasted no more than 14
days. No less, intriguing have been the alterations to the ‘hiring and
firing’ procedures for judges.
Following the amendment, the appointment
of judges to the EACJ (by a Partner State) has been left entirely to the
discretion of the Head of State. Besides the possibility of arbitrary
exercise of power, which in itself is sufficient harm, there is the
possibility of disharmony in the procedures leading to appointment,
exacerbating further the existing incongruity in the policies and
practices in the region.
There is a parallel problem, at least the real potential for that to happen. Not only is the appointment of a judge exposed to the whims of the Executive arm. So too is the judge’s tenure, and for the simple reason that a judge may be suspended for infringements of his respective country’s laws, infringements which have been defined in the most broadest fashion imaginable. If the present framework is left unchecked it is not difficult to foresee a scenario in which (for variety of reasons), the executive appoints a far less senior judge within the national system to the apex of the EACJ.
There is a parallel problem, at least the real potential for that to happen. Not only is the appointment of a judge exposed to the whims of the Executive arm. So too is the judge’s tenure, and for the simple reason that a judge may be suspended for infringements of his respective country’s laws, infringements which have been defined in the most broadest fashion imaginable. If the present framework is left unchecked it is not difficult to foresee a scenario in which (for variety of reasons), the executive appoints a far less senior judge within the national system to the apex of the EACJ.
A final fall out of this seemingly
arbitrariness, disharmony and possible cronism, in the ‘hiring and
firing’ system, is to open up the possibility of finding oneself with a
‘weak’ bench. A bench whose occupants lack the qualities to deliver
judgements which are unpalatable to sections of the Executive (as was
the case in Anyang’ Nyong’o in a bench comprised of JJ Warioba,
Ramadhani, Mulenga, Bossa/Alachi), Lekeiwa, and Mulwa) but otherwise,
fair and just. Fourthly, are the continued divergences between Partner
States with regard to the remuneration and entitlements for those
appointed to the bench. Such a discrepancy, if not checked, could create
a situation where judges from Partner States with comparatively more
attractive remuneration packages would find it difficult to accept
sitting on the bench of the EALA, thus creating difficulties in
maintaining a geographically representative EALA bench with all the
attendant consequences.
Fifthly, is a pervasive, and an expected
(given an earlier discussion on the matter of funding at the EAC)
constraint within the EAC – budgetary constraints. The position of the
Council of Ministers is that the EACJ’s budget cannot be allowed to
increase in any one financial year, by more than 10%.
In the view of the Registrar, this
possibly would have been justified for an organ which has grown to full
strength and has stabilised in terms of needs. Now, that hardly is the
case with the EACJ, which began with a skeletal staff of 3 (Registrar,
Secretary and Driver) only a couple of years ago, and before reaching
‘maturity’ found itself being transformed into a 2-tier court.
Fifthly, in a remarkable revelation, the
Registrar raised the issue of “sovereignty syndrome”, which is reflected
in a seemingly consistent pattern of reluctance to acknowledge the EACJ
as the principal adjudicatory forum for matters pertaining to the
Customs Union and Common Market. Without offering any specific
illustrations, the Registrar maintained that it was his position that
several Partner States have proceeded to vest jurisdiction over EAC
Customs Union and EAC Common Market in quasi-judicial national bodies.
The conclusion from this he concluded, was that Partner States
confidence in the EACJ remains questionable.
Sixthly, and not too unrelated with the
previous challenge is that of ‘parallel jurisdictions’. This, the
Registrar explained is largely on account of the multiple membership to
RECs (for instance, COMESA and SADC), one finds among EAC Partner
States. In the event of dispute this gives raise to what is termed
‘forum shopping’.
However, the challenge the Registrar was
at pain to share, was the following, and the seventh in line. It is
associated with the EACJ’s “ad hoc” status. According to the EAC Treaty,
judges appointed to the EACJ “shall serve on an ad hoc basis” and this
situation shall continue “until such time as the Council determines”
otherwise.
It is instructive to note that indeed, the
EAC Treaty not only repeatedly affirms its commitment to a
“people-centred” EAC, but also pledges to create an “enabling
environment” for civil society. However, when one subjects the EAC
Treaty to more intense scrutiny, it emerges that, the notion of a
“private sector-driven EAC” has received far greater attention as
compared to commitment to a “people-centered” EAC.
This is particularly the case when we bring into spotlight chapter twenty five of the EAC Treaty. Of the 3 Articles comprising the chapter, two are exclusively dedicated to the “private sector”. The remaining Article is also dominated by matters (and, quiet elaborate) directly related to the ‘private sector’. The only provision pertaining to ‘civil society’, attempts to commit Partner States “to promote an enabling environment for the participation of civil society in the development activities within the Community”.
This is particularly the case when we bring into spotlight chapter twenty five of the EAC Treaty. Of the 3 Articles comprising the chapter, two are exclusively dedicated to the “private sector”. The remaining Article is also dominated by matters (and, quiet elaborate) directly related to the ‘private sector’. The only provision pertaining to ‘civil society’, attempts to commit Partner States “to promote an enabling environment for the participation of civil society in the development activities within the Community”.
In a further development, lending
additional weight to the seemingly disproportionate attention given to
the ‘private sector’ as opposed to the ‘people-centred’ notion, is the
existence of an EAC Private Sector Development Strategy, with no
equivalent instrument for civil society.
Fast Tracking the East African Federation
I consider this to be an independent and
distinct challenge, and concerned that it does not feature as such,
neither in EAC official publications, nor in writings by fellow
observers of the EAC and integration process in general. Since my views
and arguments have been captured at length in a separate research report
under the ARRF Sabbatical Fellowship, only the highlights will be
presented here.
Firstly, without sounding legalistic, it
is an imperative duty to commence with the acknowledgement that the EAC
is above all else, an intergovernmental organisation, thus coming under
the regulation of international law, and its constituent instrument, the
Treaty Establishing the East African Community, of 1999, subject to the
regulation of both, general International Law and the Law of Treaties,
in particular. And it is to this constituent instrument we should seek
guidance at all times and more so when at stake is a rather sensitive,
far reaching development, as ‘fast tracking the East African
Federation’.
Secondly, of all the basic principles of
the Law of Treaty none is as fundamental, as the rule imposing the
obligation to fulfil one’s treaty obligations in good faith, the pacta
sunt servanda rule. Thirdly, that until such time treaty obligations
are, through mutual consent and legitimate process, been amended, the
duty to unfailingly comply with one’ treaty obligations, subsists.
Fourthly, in the contest of the EAC Treaty
of 1999, one of the obligations I would isolate as coming under the
pacta sunt servanda rule is the provision which spells out how East
African integration shall be rolled out. On this, the EAC Treaty is
elaborate, repetitive and consistent, and, Article 5 (2) is only one
amongst several illustrations. Progression through the ‘institutional
stages of economic integration’ which is to say, Customs Union, Common
Market, Monetary Union, Political Federation, shall not only be attained
in measured steps. That, each progression shall be negotiated, and
articulated through the instrumentality of a Protocol.
Fifthly, when I read EAC documentation on
‘Fast Tracking’, and compare it with the respective EAC Treaty
provisions relating to the modus operandi on rolling out integration, I
am left in serious doubt whether the two are in harmony. That is also
the impression, when I take into account the western European experience
with integration.
Sixthly, it is my recommendation,
therefore, that if we are genuinely concerned with the seemingly
tardiness with which the integration process is taking, that in itself
cannot serve as a sound basis for ignoring the pacta sunt servanda rule.
It would seem to me, the only conventional and legitimate course of
action is to amend the Treaty, so as to replace the gradualism and
pragmatism engraved in the EAC Treaty of 1999.
Prospects
The word ‘prospects’ has been invariably
defined to mean “chances of success” or, more simply as “the possibility
of something occurring”. It is this general conception of the term that
we bring to this discussion. What are the chances of attaining a
mutually beneficial “widening and deepening of cooperation”? Will we
ever live to witness the creation of a “Political Federation”, the
penultimate objective, of the EAC Treaty?
As we have attempted to show, official EAC
documentation is upbeat. The EAC-DS for an example, not only sees
“weaknesses” and “threats”. It lists about half a dozen “strengths” and
nearly an equal number of “opportunities”. In particular:
1. Growing political commitment on the part of Partner States;
2. Established and functional organs and institutions;
3. Vast natural resources, friendly climate, rich cultural heritage;
4. Experience with regional integration and cooperation;
5. High Population; and
6. Relatively skilled human resource base.
But also, the following:
1. Supportive global initiatives (MDGs, NEPAD, WTO);
2. Possibilities for Further Membership Enlargement;
3. Supportive multi-lateral and bi-lateral development partners;
4. Collaboration and cooperation with other regional integration blocs; and
5. Large market and economies of scale.
I should also add the weight of
conventional economic theory which identifies expansion of trade,
enhanced competition, and changes in terms of trade and scale effects,
as the most commonly cited advantages of regional integration. This is
besides, the widening of the total export markets of individual Partner
States.
In reality however, few if any regional
integration schemes in Sub-Saharan Africa have been able to attain these
goals in any meaningful or sustainable manner. Experts have identified
the following as constituting “major limiting factors”:
1. Poor ratification record and implementation of the accords;
2. Low regard for incentives for Partner States;
3. Weak compensation arrangements where benefits unevenly distributed;
4. High similarity in endowments related to trade
5. Adopting trade policies without clear agent of restraint and no credible penalties for policy reversals
6. Poor infrastructure links pertinent to intra-regional trade
7. Pervasive shortage of foreign reserves
8. (Resultant) absence of proper regional trade credit facilities
9. Overdependence on foreign resources;
10. Multiplicity of integration objectives; and
11. Weak supra-national institutions.
Recommendations
1. Design and implement more robust and
elaborate strategies to operationalise the solemn commitment to the
notion of a “people-centred” EAC as a strategy in improving popular
ownership and sustainability of the integration process and
institutions. It would be pertinent for the EAC Treaty to give CSO/CBOs a
stature as prominent as that extended to the ‘private sector’.
2. Enhance the role and significance of
the East African Legislative Assembly (EALA) into a genuinely
“people-centred” governance institution by reconsidering the manner in
which its members are elected. One way of achieving this is through
direct ballot (a la European Parliament), but also by remaining faithful
to the directive of the EAC Treaty, demanding that the EALA is a true
reflection of the shades of opinion, gender, and other special interest
groups found in the Partner States.
3. Revitalise the Inter-University Council
for East Africa (IUCEA) and find ways and means of extending its
mandate to lower levels of the education system, namely, primary and
secondary so as to cultivate, through a shared curriculum, a generation
of genuine ‘East Africans’, the bulwark for a thriving EAC. Thus,
creating a generation with a truly shared regional vision.
4. Through a consultative process, design a
curriculum and oversee the teaching of the course ‘East African
Community Law’ in all public funded institutions of higher learning with
a mandate to offer the Bachelor of Law degree. Mainstream the teaching
of a course on the East African Community (and regional integration),
mutatis mutandis, into the entire education system.
5. Review and revise the present criteria
in determining the membership subscription fees away from the ‘equal
amounts’ to a more meaningful and realistic formula, including one which
tempers the liquidity of the economy, with a percentage collected by a
Partner State from intra-regional trade.
6. Accept
the vital importance of creating credible, robust, well equipped and
independent organs whose work must be facilitated and whose decisions
must be unfailingly executed and upheld. Among these, is the Council of
Ministers, the EAC Secretariat, EACJ and EALA.
7. Create forums, which is
institutionalised and predictable, from the grass-root to regional
level, of regular and purposeful consultations between policy makers on
the one hand, and other stakeholders, on the other. The launch of a
scholarly journal on matters of relevance to the EAC, is highly
desirable.
8. Re-examine the procedures of the
implementation of EAC Law provisions within and by Partner States
authorities with a view to streamlining the process. In addition, to
encourage aggrieved parties to petition before the EACJ regarding
infringements related to the EAC Treaty.
9. In combating what is generally referred
to as an unequal distribution of benefits within an integrated area
such as the EAC ( widely acknowledged as determinant of failure), it may
be high time to distinguish between economically highly developed
Partner States, and those which are less developed. Drawing from the
experience of the EU, we may want to instead to identify and isolate
“poorly developed regions” wherever they are found within the entire
jurisdiction of the EAC.
10. Having done so, create ‘structural
funds’ for the benefit of these marginalised areas, with the broad
objective of reversing considerable economic and social divergences
within the EAC, while also facilitating the enjoyment by these regions,
of the benefits regional integration is expected to bring.
11. Support initiatives and mechanisms,
internal to the EAC and without, committed to ensuring that Partner
States remain faithful to their treaty obligation in respect of good
governance, democracy, human rights and social justice.
Dr Khoti Kamanga, an expert in International Law, lectures at the University of Dar es Salaam
No comments :
Post a Comment