Kevin W. Gray on “Taming States: Democratic Norms and Constituent Power in the East African Court of Justice”

Room 2027, Osgoode Hall Law School, Ignat Kaneff Building

Taming States: Democratic Norms and Constitutent Power in the East African Court of Justice

Dr. Kevin W. Gray

In my paper, I develop a theory of the uses of democratic norms in transnational settings, focussing on the East African Community (EAC). I argue that the East African Court of Justice’s (EACJ) expansion of its jurisdiction, by taking an expansive reading of the norms codified under Article 6 of the Treaty for the Establishment of the East African Community has created a space for democratic contestation in the states which make up the EAC.  It has done this through the creative  construction of its own jurisdiction.

From its earliest cases, the East African Court of Justice (EACJ) has found that although the Treaty does not grant human rights jurisdiction to the court, any violation of the principle of the rule of law (including a failure to provide remedies for human rights violations) is a violation of Article 6, and thus a violation of the treaty ipso facto over which the court has jurisdiction. In so doing, it has granted itself jurisdiction (albeit limited) over human rights violations. Thus, in Katabazi (2007), the court found that lack of judicial independence was a violation of the rule of law. Similarly, in Rugumba (2011), the court recognized a right of habeas corpus in the East African community, justiciable before the court.

In the area of election law, this jurisprduence has provided a space for opposition parties to mobilize. Thus, in Nyong’o (2007), Ariviza (2010), EACSOF (2015) and Jada (2017), the EACJ found that the rule of law and the terms of Treaty require states to conduct free and fair elections. This line of cases in the court’s jurisprduence constrained the exercise of power at the national level and created an arena for judicial supervision of the exercise of constitution- and law-making.


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