The EAC Secretary General, Dr. Richard Sezibera

Arusha, 27 January, 2012 (EANA) -In a dramatic turning of events, a Tanzanian has filed a case at the East African Court of Justice (EACJ)in Arusha seeking to declare null and void aspects of the East African Community (EAC) Summit communiqué released in Bujumbura last November that mandated the Secretariat to spearhead the establishment of a regional political federation, claiming the directive breached the Treaty.

In an application filed on January 20, 2010 and given court reference number 01 of 2012, Dar es Salaam resident Timothy Alvin Kahoho also claims that the summit grossly breached the EAC Treaty in particular articles 6,7 and 123(6) by mandating “the Secretariat to produce a road map for establishing and strengthening the institutions identified by a Team of Experts  as critical for the functioning of the Customs union, Common Market and Monetary Union.”

Mr Kahoho also strongly contests the directive to the Secretariat to “formulate an action plan for the purpose of operationalising the other recommendations in the report of the Team of Experts, and (to) propose an action plan on, and a draft model of the structure of the East African Political Federation for consideration by the summit at its 14th ordinary meeting.”

A journalist and activist, Mr Kahoho also argues that “the summit approved the protocol on Immunities and Privileges for East African Community, its organs and institutions for conclusion in breach of Articles 73 and 138 of the treaty.”

He further wants the court to declare that “the Summit has no mandate under the treaty to exclude partner states and the Council (of ministers) from performing functions vested to them by the Treaty and which have an impact in the integration process.”He also prays for the costs of the application and any other reliefs that the court may deem fit to grant.

The court gave the Secretariat 45 days to respond to Mr Kahoho’s application, which no doubt will set a number of precedents in regional administrative law since it is the first time that a citizen has come forward to challenge the decision of the heads of state, otherwise referred to as the Authority of the regional body.

Mr Kahoho argues further that the protocols on Immunities and Privileges for East African Community employees, its organs and institutions and Monetary Union have not yet been negotiated and their establishment agreed upon by the partner states. He therefore sees the move as an usurpation of the powers of partner states and vest them in the Secretariat, which is against the letter and spirit of the EAC treaty, argues.

The applicant further pleads that he is aggrieved by the directives of the Summit and believes that if they are not rectified, the Treaty for the Establishment of the East African community shall be irrevocably breached “setting a very dangerous precedent for the future decisions and directives of other organs of the Community” given the fact that they were made by the highest organ of the regional grouping.

Mr Kahoho has petitioned the court on the strength of Article 30(1), which states: “Subject to the provisions of Article 27 of this Treaty, any person who is resident in a Partner State may refer for determination by the Court, the legality of any Act, regulation, directive, decision or action of a Partner State or an institution of the Community on the grounds that such Act, regulation, directive, decision or action is unlawful or is an infringement of the provisions of this Treaty.”

The case will no doubt stir debate and attract attention particularly in Tanzania where political federation has evoked considerable resentment and the directive by the Bujumbura summit is seen in some quarters as an attempt to federate the region via the back door. Whichever way, the court’s opinion shall be as landmark a decision as Mr Kahoho’s case too stands to test democracy and rule of law even in a federated East Africa.

Efforts to get comments on the case from the EACJ Registrar, Dr John Ruhangisa proved futile yesterday.