East African Court settles Customs Union dispute

The East African Court of Justice (EACJ) has delivered its judgment in which the East Africa Law Society had filed a reference seeking declaratory orders that Article 24 of the Protocol on the Establishment of the EAC Customs Union is inconsistent.

The article establishes the EAC Trade Remedies Committee to handle matters pertaining to rules of origin, anti-dumping, subsidies and countervailing measures and safeguard measures.

While, Article 54 of the Protocol on the Establishment of the EAC Common Market (which provides, inter alia, that national constitutions , laws and administrative procedures, and competent national authorities shall handle disputes under the Common Market).

The complainants were seeking the EAC court to declare that the provisions of the article are inconsistent with the Treaty for the Establishment of the East African Community.

According to a statement from the secretariat, in its judgment, the Court stated that it has jurisdiction to interpret disputes arising out of the Customs Union and Common Market protocols since these protocols are annexes and integral parts of the Treaty.

“The Court, however, decided that the dispute settlement mechanisms created under the Customs Union Protocol and the Common Market Protocol do not exclude, oust or infringe upon its interpretative jurisdiction and that the impugned provisions (Article 24 of the Customs Union Protocol and Article 54 of the Common Market Protocol) are not in contravention of or in contradiction with the relevant provisions of the Treaty,” notes the statement.

The protocol envisages enhancement and strengthening of partnerships of governments with the private sector and civil society in its implementation in order to achieve sustainable socio-economic and political development.

The EAC is grounded on a number of operational principles, which include: people-centred and market driven co-operation; the principle of subsidiary with emphasis on multi-level participation; and involvement of a wide range of stakeholders in the process of integration.

The treaty also emphasizes in its objective the principle of sustainable development and equitable economic development.

Cooperation in trade liberalisation and development is one of the fundamental pillars of the East African Community (EAC).

For this purpose, the EAC Partner States agreed in the EAC Treaty of 1999 ‘to establish among themselves a Customs Union, a Common Market, subsequently a Monetary Union and ultimately, a Political Federation.

The East African Community Customs Union (Eaccu) commenced its operations within Kenya, Tanzania and Uganda on 1 January 2005. Burundi and Rwanda acceded to the EAC in July 2007.

Customs is, for instance, deeply involved in controlling goods which cross borders, determining goods’ nomenclature and origin, and collecting revenue as well as administering trade policies.

Hence, the manner in which Customs operates highly affects international trade either negatively or positively. In other words, the manner in which Customs operates can either complicate or simplify the international trade in goods. And this introduces us to the concept of trade facilitation.

Kenya and Tanzania appended their signatures to the Protocol Establishing the East African Customs Union on the 2nd March, 2004.

The East Africa Law Society was represented by Prof Frederick Ssempebwa, Mr Richard Onsogo and Mr Humphrey Mtuy.

The Counsel to the East African Community, Hon Wilbert T.K. Kaahwa represented the Secretary General who was the Respondent in the Reference.
Source: The Citizen, www.thecitizen.co.tz, reported from Arusha
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