OKUBO: EAC court limping along under difficult conditions

Yufnalis Okubo, the outgoing registrar of the East African Court of Justice, spoke to Luke Anami on the challenges the court has faced and how to make it better

Critics say the EACJ has not performed to the best of its ability. What are the challenges facing the court on the dispensation of justice?

The turnaround time of a single case should not be used as a yardstick measure of best performance. There are other indicators like quality of the judgement and the jurisprudence developed.

Moreover, judges of EACJ serve on ad hoc basis. Only the president of the Court and the principal judge are in Arusha; even then, more to do with administrative issues than judicial functions. That means cases can only be handled when the judges are on session.

Second, the sessions are once in every four months. Given the process of getting a case to maturity for hearing, it runs to more than a year, for something that could have been concluded in six months if the judges were all permanently in Arusha.

Granted that justice delayed is justice denied just as justice hurried is justice buried, a balance must be struck.

Another issue is the tenure of judges. A judge will exit after seven years from the date of appointment or when the judge attains the age of 70 years. The Court experienced situations when good-grounded judges had to leave the Court upon attaining age 70 in less than seven years from the date of appointment. Most of those were senior judges with a wealth of experience but exited.

It would have been of great help if all judges were appointed and serve for seven years irrespective of age. By the time new judges are inducted, time is lost, leading to delays in concluding cases. I would also have loved to see retired chief justices with all their experience come to serve on a regional court.

Another problem that contributes to delays of cases is when judges are exiting. The appointment of replacements is sometimes drawn out until the Summit makes appointments. This could be avoided if new appointments were made six months to the end of tenure of judges about to complete their contract.

The court has suffered from poor enforcement of its judgements by partner states. What are your thoughts and proposals on this?

I will not call it poor enforcement but maybe slow enforcement of EACJ judgements. In 2019, a study was conducted by Pan African Lawyers Union jointly with East African Law Society on implementation of the decisions of EACJ and it was found that 64 percent of the decisions were complied with.

The remaining 36 percent were declaratory orders that did not require any enforcement and of course a few decisions where there has been no implementation.

Some of those judgements require legislative changes in partner states to implement but takes time to go through the parliamentary process but at the end of the day you will find they have actually been implemented.

In the future, sanctions could be imposed on partner states that do not implement the decisions of the Court. That would greatly enhance the rule of law which they undertook to uphold.

What are some of the proposals you would have wished to see made to grant the court more powers?

First, jurisdiction can only come as provided for in the Treaty and nowhere else. So I would wish the Treaty could be amended to extend the jurisdiction of the Court on the scope of those who can be sued. Currently, only partner states, the Community and its organs and institutions can be sued. But those are not the only players in the integration playfield such as the private sector and NGOs that play a big role in integration matters yet wherever private sector players are found to be frustrating efforts of integration they cannot be brought before the EACJ.

Additional jurisdiction may be on cross-border crimes and even crimes against humanity within the region.

Funding of the court has remained a thorny issue. How can this be resolved?

An analysis of the Court’s budget over the past four years will show you that it has been on the decline instead of an increase to cope with the increased workload. That has on occasion led to cancellation of Court sessions, affecting the delivery of justice.

In the overall EAC budget, it is the Court that gets the least, less than 10 percent of the overall budget.

Moving forward, maybe a revolving fund for the Court will save partner states from annual contributions. We have seen it work with the Caribbean Court of Justice.

What were your achievements while serving as registrar of the EACJ?

They include enforcement or implementation of the use of technology which made the court work seamlessly even during the Covid-19 lockdowns. It was an uphill task getting everyone to embrace the use of technology for proceedings but everyone came through.

We spearheaded revision of the Rules of Procedure of the Court that came into force early 2019. The rules brought new impetus by clarifying procedures and made it simple for even litigants not represented to access the Court.

Another milestone was enabling the training of judges and staff especially in ADR to the level of Fellows as the Treaty specifically provides for arbitration as one of the jurisdictions of the Court. Being a Judge on its own does not make one an arbitrator or mediator so I had to ensure Judges have the necessary skills to handle arbitration and mediation.

I did a lot in sensitisation of the Court to its stakeholders across the region.

I also trained judicial officers across the region on preliminary rulings thus enlightening them on the relationship between the EACJ and the national judiciaries.