c HA p TER 4
The Scope, Nature and Effect of EAC Law
John Eudes Ruhangisa
4.1 Introduction
4.1.1 The Aim
This chapter examines the scope and origins of EAC law as well as its
strength and validity with regards to the Partner States. It does so with a view to
analyz- ing the relevance of EAC law within the integration process. The
importance of law within a regional bloc cannot be overstated, as there
cannot be mean- ingful integration without a solid regulatory framework to
provide guidance to the process. Undoubtedly, EAC law is a regulatory
framework envisaged by the Partner States to direct and control the
integration process. However, having the law scribed on paper is one thing,
whereas giving effect to the law is another. This chapter, in the spirit of
studying this dichotomy, assesses the status and effect of EAC law bearing in
mind the fact that EAC has all the char- acteristics of a supranational
organization.1
4.1.2 The Structure
In this chapter we open the discussion by examining the various sources of
EAC law as provided by the Treaty which is the principal partnership accord
as well as the parent instrument of the Community. With this background
the study in this chapter goes on to analyze the range within which EAC law
exerts its operation. The influence and consequence of EAC law in the
national legal order is then evaluated before we proceed to look into the
hierarchical relation
* Hon. Justice Prof. John Eudes Ruhangisa, judge of the High Court of the United Republic of
Tanzania and former registrar of the East African Court of Justice.
1 For more and detailed discussion on the supranational character of EAC see John Eudes
Ruhangisa, “From Rules to Reality: Creating a Legal Community for the EAC”, A Key Note
Address to the Second LEAC Conference on East African Integration Through law,
organized by Leiden University in Collaboration with the East African Court of Justice, Held
at EAC Headquarters, Arusha, Tanzania 5th May, 2016. See also Mbembe Binda, “Good
Governance and Foreign Direct Investment: A Legal Contribution to a Balanced Economic
Development in the East African Community”, PhD Thesis, Utrecht University, The
Netherland, 25th August 2015, at page 89.
Downloaded from Brill.com07/23/2020
07:52:33PM
via free access
,© jOHn eUDES RUHAngISA, 20ı7 | dOI ı0.ıı63/9789004322073_008
This is an open access chapter distributed under the terms of the CC-BY-NC LicenseJ.ohn Eudes Ruhangisa -
9789004322073
Downloaded from Brill.com07/23/2020
07:52:33PM
via free access
, 140 EUDES RUHAngISA
of this law vis-à-vis national law. The chapter will conclude with a discussion
on how EAC law relates to other regional and international law.
4.2 Sources of EAC Law
In order to explain the scope of EAC law it is important to first consider
its sources. Each country or region has its own sources of law, which largely
influ- ence its legal system. The most common sources of law are
Constitutions, Parliamentary legislation (statutes), judicial decisions,
treaties, protocols and circulars issued by various policy organs. In the EAC
regime, the sources of law are: the Treaty for the Establishment of the East
African Community (the Treaty) which came into force on 7th July 2000,
following its ratification by the Partner States; Acts of the East African
Legislative Assembly; decisions of the East African Court of Justice;
Protocols; and formal directives and deci- sions of the policy organs of the
Community.2
Within the EAC framework, the Treaty is the main source of Community
law and it outlines the areas of cooperation on which the Partner States of the
Community have agreed to cooperate. Under the Treaty it is agreed that,
with a view to strengthening their cooperation, the Partner States are
resolved to adhere to the fundamental and operational principles that shall
govern the achievement of the objectives set out in the Treaty and to the
principles of international law governing relationships between sovereign
states. In this regard, the relevant provisions of the Treaty are: Article 5 on
the Objectives of the Community; Article 6 on the Fundamental Principles of
the Community; Article 7 on the Operational Principles of the
Community; and Article 8 on the general undertaking as to
implementation. For their mutual benefit, Partner States have agreed to
cooperate in the following fields: political, eco- nomic, social, cultural,
research, technology, defense, security, and legal and judicial affairs.
In modern democracies, the legislative function of the State is a preserve
of the legislature (Parliament). This power is normally enshrined in the
Constitution, which is the mother of all laws in a particular state.3 In the
EAC, the Treaty regulates the powers and functions of the organs and
institutions
2 According to the East African Community structure the policy organs of the Community
are mainly two: the Summit of Heads of State and the Council of Ministers.
3 For example Article 64 (1) of the Constitution of the United Republic of Tanzania, 1977 which
provides that “legislative powers in relation to all Union matters and also in relation to all
other matters concerning mainland Tanzania is hereby vested in Parliament”. Also Article
John Eudes Ruhangisa -
9789004322073 Downloaded from
Brill.com07/23/2020 07:52:33PM
The Scope, Nature and Effect of EAC Law
John Eudes Ruhangisa
4.1 Introduction
4.1.1 The Aim
This chapter examines the scope and origins of EAC law as well as its
strength and validity with regards to the Partner States. It does so with a view to
analyz- ing the relevance of EAC law within the integration process. The
importance of law within a regional bloc cannot be overstated, as there
cannot be mean- ingful integration without a solid regulatory framework to
provide guidance to the process. Undoubtedly, EAC law is a regulatory
framework envisaged by the Partner States to direct and control the
integration process. However, having the law scribed on paper is one thing,
whereas giving effect to the law is another. This chapter, in the spirit of
studying this dichotomy, assesses the status and effect of EAC law bearing in
mind the fact that EAC has all the char- acteristics of a supranational
organization.1
4.1.2 The Structure
In this chapter we open the discussion by examining the various sources of
EAC law as provided by the Treaty which is the principal partnership accord
as well as the parent instrument of the Community. With this background
the study in this chapter goes on to analyze the range within which EAC law
exerts its operation. The influence and consequence of EAC law in the
national legal order is then evaluated before we proceed to look into the
hierarchical relation
* Hon. Justice Prof. John Eudes Ruhangisa, judge of the High Court of the United Republic of
Tanzania and former registrar of the East African Court of Justice.
1 For more and detailed discussion on the supranational character of EAC see John Eudes
Ruhangisa, “From Rules to Reality: Creating a Legal Community for the EAC”, A Key Note
Address to the Second LEAC Conference on East African Integration Through law,
organized by Leiden University in Collaboration with the East African Court of Justice, Held
at EAC Headquarters, Arusha, Tanzania 5th May, 2016. See also Mbembe Binda, “Good
Governance and Foreign Direct Investment: A Legal Contribution to a Balanced Economic
Development in the East African Community”, PhD Thesis, Utrecht University, The
Netherland, 25th August 2015, at page 89.
Downloaded from Brill.com07/23/2020
07:52:33PM
via free access
,© jOHn eUDES RUHAngISA, 20ı7 | dOI ı0.ıı63/9789004322073_008
This is an open access chapter distributed under the terms of the CC-BY-NC LicenseJ.ohn Eudes Ruhangisa -
9789004322073
Downloaded from Brill.com07/23/2020
07:52:33PM
via free access
, 140 EUDES RUHAngISA
of this law vis-à-vis national law. The chapter will conclude with a discussion
on how EAC law relates to other regional and international law.
4.2 Sources of EAC Law
In order to explain the scope of EAC law it is important to first consider
its sources. Each country or region has its own sources of law, which largely
influ- ence its legal system. The most common sources of law are
Constitutions, Parliamentary legislation (statutes), judicial decisions,
treaties, protocols and circulars issued by various policy organs. In the EAC
regime, the sources of law are: the Treaty for the Establishment of the East
African Community (the Treaty) which came into force on 7th July 2000,
following its ratification by the Partner States; Acts of the East African
Legislative Assembly; decisions of the East African Court of Justice;
Protocols; and formal directives and deci- sions of the policy organs of the
Community.2
Within the EAC framework, the Treaty is the main source of Community
law and it outlines the areas of cooperation on which the Partner States of the
Community have agreed to cooperate. Under the Treaty it is agreed that,
with a view to strengthening their cooperation, the Partner States are
resolved to adhere to the fundamental and operational principles that shall
govern the achievement of the objectives set out in the Treaty and to the
principles of international law governing relationships between sovereign
states. In this regard, the relevant provisions of the Treaty are: Article 5 on
the Objectives of the Community; Article 6 on the Fundamental Principles of
the Community; Article 7 on the Operational Principles of the
Community; and Article 8 on the general undertaking as to
implementation. For their mutual benefit, Partner States have agreed to
cooperate in the following fields: political, eco- nomic, social, cultural,
research, technology, defense, security, and legal and judicial affairs.
In modern democracies, the legislative function of the State is a preserve
of the legislature (Parliament). This power is normally enshrined in the
Constitution, which is the mother of all laws in a particular state.3 In the
EAC, the Treaty regulates the powers and functions of the organs and
institutions
2 According to the East African Community structure the policy organs of the Community
are mainly two: the Summit of Heads of State and the Council of Ministers.
3 For example Article 64 (1) of the Constitution of the United Republic of Tanzania, 1977 which
provides that “legislative powers in relation to all Union matters and also in relation to all
other matters concerning mainland Tanzania is hereby vested in Parliament”. Also Article
John Eudes Ruhangisa -
9789004322073 Downloaded from
Brill.com07/23/2020 07:52:33PM
