A recent case decided in the East African Court of Justice (EACJ) raised issues related to human rights jurisdiction in the EACJ, the judicial body of the East African Community. The human rights community considers Samuel Mukira Mohochi v. Attorney-General of Uganda as the most recent addition to the EACJ’s evolving human rights jurisprudence. Despite the petitioner’s assertions of human rights jurisdiction, the Court emphasized that it does not have jurisdiction to hear human rights cases. Yet, the Court nevertheless found violations of the Treaty for the Establishment of the East African Community (EAC Treaty), which provided de facto protection for the plaintiff’s human rights.
Samuel Mukira Mohochi, petitioner and human rights activist, attempted to enter Uganda in April 2011 for a scheduled meeting with the Chief Justice of the Ugandan Supreme Court. Mr. Mohochi, however, was stopped by immigration officials, detained, and sent back to Kenya without notice as to why Uganda refused him entry or a chance to contest the denial of entry. After Uganda denied him freedom of movement, a right guaranteed under the EAC Treaty and the African Charter on Human and Peoples’ Rights (the African Charter), Mr. Mohochi brought the case to the EACJ.
The complaint alleged violations of both the EAC Treaty as well as the African Charter, the main human rights treaty under the African Union. The Court, however, has not been granted jurisdiction to hear claims based on violations of the African Charter. Under Article 27 of the EAC Treaty, human rights jurisdiction may be granted in the future at the discretion of the Council of Ministers, an organ of the EAC. The Council has yet to grant this jurisdiction to the Court. Accordingly, the Court did not rule on violations of the African Charter, but it did hold Uganda to its obligations under Article 6(d) of the EAC Treaty, which obligates Member States to uphold good governance and to protect human and peoples’ rights under the African Charter. Additionally, the Court found violations of Article 104 of the EAC Treaty and Article 7(1) of the Protocol on the Establishment of East African Community Common Market, both of which establish the Member States’ obligation to ensure freedom of movement of citizens between States.
In 2005, the Council of Ministers undertook initiatives to extend jurisdiction of the EACJ. However, these initiatives were not adequately implemented. The Council approved a draft Protocol to Operationalize Extended Jurisdiction of the East African Court of Justice in July 2005. At the conclusion of its meeting in June 2012, the Council directed the EAC Secretariat to write up a report on policy and legal implications of extended jurisdiction. Extension of jurisdiction remains on the Council’s agenda.
While the Council of Ministers continues to debate the extension of jurisdiction, members of the human rights community argue that the EACJ already has the jurisdiction to hear human rights cases. They assert that Article 27(2) of the EAC Treaty does not clearly deny the EACJ human rights jurisdiction, and when Article 27 is considered together with the reference to human rights in Article 6(d), the EACJ has jurisdiction to hear human rights cases. Proponents of this view cite cases such as Mohochi, in which the EACJ has effectively ruled on human rights violations as evidence of the court’s human rights jurisdiction. The EACJ, however, remains firm in declaring its lack of human rights jurisdiction.
Although resisting explicit classification of the Court’s decisions as “human rights cases,” — nevertheless indirectly based on human rights principles — the EACJ repeatedly hears certain human rights claims and circumvents potential jurisdictional issues. However, the Council’s final confirmation of extended jurisdiction is the only way to ensure future adjudication based on human rights provisions. Other Sub-regional Economic Communities (SECs) have added human rights jurisdiction to their judicial organs later in their history. For example, the Economic Community of the West African States (ECOWAS) Community Court of Justice, established in 1991, originally only had jurisdiction to interpret the ECOWAS Treaty, but extended its jurisdiction to include human rights cases in 2005. The EAC may follow suit and grant human rights jurisdiction to the EACJ rather than continue to create its own limited jurisprudence on individuals’ rights.