Threat posed by the National Legislations to the East African Community Treaty: The Case of Kenya

East African Community (EAC) integration continues to be put to test by the various national laws enacted by the member states.  The main objective of the EAC as provided for under Article 5(1) of the East African Community Treaty (hereinafter the Treaty) is to develop policies and to come up with programs that are intended at expanding and deepening co-operation among the member states for their mutual benefit. The co-operation is aimed to be in various fields such as political, economic, social, cultural, research and technology, security, defense and on legal and judicial affairs.  However, some of the provisions of the legislations passed by the member states pose a threat to the prospects of the integration.

It is important to note that Chapter 24 and more specifically Article 126(1) of the treaty make provisions regarding co-operation in the area of legal and judicial affairs. The Treaty recommends various steps to be undertaken by the partner states to promote the realization of the objective of the community as set out in Article 5 of the treaty.  The partner states are required to use their appropriate national institutions and to take all necessary steps for the realization of the objectives of the community. One particular action the partner states are required to undertake as per Article 126(2) (b) of the Treaty is to harmonize all their national laws pertaining to the Community. However, some of the laws legislated by the member states are not in harmony with the Treaty hence posing a threat to the integration.

For instance, Article 8 of the Treaty makes provision for the general undertaking as to implementation by the member states.  Of interest at this point and more specifically is the provision of Article 8(4) which states that Community Organs, Institutions, and laws shall take precedence over similar national ones on matters of the implementation of the Treaty.  Pursuant to this provision, the Treaty is the supreme law of the land in all the countries which are signatories to the Treaty, Kenya being one of them.

The Treaty also requires all the partner states to make any necessary legal instruments that will make the community organs, community laws, and institutions as being superior to the national ones of the partner states. In contradiction, Article 2 of the Constitution of Kenya equally makes provision for its supremacy over all other laws of the Republic of Kenya. This is in total disregard to the provision of Article 8 of the Treaty that gives the Treaty supremacy over any other legislation of the member states. Article 2(6) of the Constitution of Kenya makes any convention or treaty ratified by Kenya as forming part of the laws of Kenya under the constitution. Therefore, as per Article 2(6) of the Constitution of Kenya, the Treaty forms part of the laws of Kenya under the Constitution, which means that the constitution is superior to the East African Community Treaty.

The Courts have equally developed jurisprudence that confers supremacy to the Constitution of Kenya as opposed to the Treaty. A case in point to demonstrate this position is the case of Okunda and Another v Republic In this case, the learned Judge held that the Constitution of Kenya is the only legal instrument that created the entire Republic of Kenya and all the machinery of the government, and, therefore, it prescribes the foundation for the social and economic institution within the Republic of Kenya.  The Courts further cemented this position of the supremacy of the Kenyan Constitution over the treaty in the case of Njoya & 6 others v Attorney General & 3 others The court ruled that the Constitution of Kenya is supreme over all other laws. The learned Judge further stated that the reasoning of the court emanated from the relationship between the Constitution itself as well as the powers of the government given by the constitution which is a derivative power that can be compared to a relation of an original and a dependent a superior and a subordinate.

In the case of Prof. Peter Anyang’ Nyong’o & 10 Others vs The Attorney General of The Republic of Kenya and 5 others,the East African Court of Justice was called upon to make a decision on the legal position in a situation where the Treaty conflicts with the national laws of the member states. The learned judges in their decision stated that the Treaty does not make provision for instances where there is a conflict of legislation. This position is in total disregard to Section 8(4) of the Treaty, which gives precedence of laws of the community over national laws of the partner states. The court in their decision instead considered the various principles of international laws.

These above provisions of the national legislation and the interpretation by the courts clearly demonstrate the threat posed by the national legislations to the East African Community (EAC) integration. In order to protect the integration, it is necessary to prevent these threats.  This therefore calls upon all the member states to undertake necessary steps of harmonizing all their national laws appertaining to the community as required by the treaty. Harmonizing the national laws with the Treaty is important for the realization of the objectives set out in the treaty that is to develop policies and programs that are intended at expanding and deepening co-operation among the member states for their mutual benefit.  Failure by the member states in urgently taking the necessary steps begs the question whether or not total integration of the EAC in all aspects is a pipe dream.