November 8th, 2022

Bridging the Access to Justice Gap for Cross Border Trade Disputes (GIZ)

Discussion with the Private Sector and Civil Society on the Role of the East African Court of Justice.

The 2nd Annual East African Court of Justice Judicial Conference on Transformation of Justice in EAC was convened by the East African Court of Justice from the 26 to 28 October 2022 in Kampala, Uganda. The Support to East African Integration (SEAMPEC II) Programme supported the participation of non-state actors in a panelist session on adjudication of cross border-trade and investment in East Africa during the conference.

Participants in this discussion were Mr. John Kalisa, Executive Director of the East African Business Council, Hon. Sheilah Kwamara Msibambi, Executive Director of the East African Subregional Support Initiative for the Advancement of Women’s Right (EASSI), Ms. Brenda Anankunda, Coordinator of the Southern and Eastern Africa Trade Information and Negotiations Institute (SEATINI) Uganda, Hon. Kiryowa Kiwanuka, Attorney General of Uganda and Hon. Lady Justice Monica Mugenyi, former judge of EACJ.

Ms. Anankunda of SEATINI highlighted several factors that positively impact cross-border traders, such as the expansion of markets with the addition of DRC to EAC, commencement of trading under the African Continental Free Trade Area (AfCFTA), and the demonstrated political will to widen and deepen economic cooperation between EAC Partner States. However, according to Ms. Anakunda, there are still many negative factors that impede on the free movement of goods and services across borders. Examples are the different trade regimes in EAC, COMESA, and the Tripartite Trade Regime. Other factors include a growing number of bilateral free trade agreements that sometimes clash with regional integration efforts, the slow implementation of the Common Market Protocol and Single Customs Territory as well as the rise of tensions in EAC, e.g., border closures and dissent about the free trade of certain goods. These factors have a negative impact on intra-regional trade and give a disadvantage to locally produced goods against competitors from outside the EAC.

Hon. Sheilah Kwamara of EASSI agreed with SEATINI’s position and underlined that the cost of starting a trade dispute may be a deterrent to small and medium businesses to file a complaint with the Court. She alluded that the barrier to filing cases on cross-border disputes may lead to loss of revenue, and result in low intra-regional trade in EAC, which is currently at 20% and much lower than in SADC at 46% and the European Union at 67%.

Her Lordship Monica Mugenyi expanded on the role of the East African Court of Justice as the principal judicial organ of the Community and its responsibility is to ensure the adherence to law in the interpretation and application of and compliance with the EAC Treaty. She urged the national and regional Courts to understand the dynamics of the informal and formal cross-border traders. She noted that the ad hoc nature of the EACJ may pose a challenge to the speedy resolution and arbitration of commercial and trade disputes. Justice Mugenyi recommended to revisit EACJ’s rule of procedure to enable it to tap into the pool of qualified external arbitrators to arbitrate these cases, so that the Court could focus on its interpretation and policy decision-making function.

The Attorney General of Uganda also mentioned that the ad hoc nature of the EACJ needs to be addressed as it does not allow for effective dispensation of court cases for the Micro and medium size enterprises.

Resulting from the panel discussion, the following recommendations were submitted to the EAC Partner States:

• The EAC Partners States are urged to empower the border management and national courts to handle cross border trade disputes, digitalized cross border trade procedures and the national courts to improve documentation, information sharing to fasten and smoothen facilitation of trade; • Establish and strengthen partnership for awareness creation, visibility, and resource mobilization for the court with the private sector, development partners and Partner States; • EACJ to consider the variations in Partner States on issues of human rights and environmental issues and handle the cases at regional level; • EALA to come up with an Act on consumer protection to counteract some of the NTBs affecting cross border traders in East Africa; • Civil Society Organisations to develop a strategy to empower cross border traders to challenge national courts on non-tariff barriers to trade (NTBs) that continue to affect women and youth cross border traders in East Africa; • The Partner States to commit more resources to EACJ, fast track the EACJ Financial Bill to provide autonomy of EACJ and to strengthen its capacity to increase its financial and Human Resource to effectively dispense justice for East African citizens.

Find more information about the EACJ here.