East Africa: Justice in the Dock at Arusha-Based EA Court as Bench Empties

The wheels of justice at the East African Court of Justice in Arusha, Tanzania, could grind to a halt on November 30 when the terms of its two top judges end with no replacements in sight.

The EAC heads of state summit, which appoints the judges, has not met in two years during which time seven of the 11 judges at the appellate court have retired without being replaced.

Without judges, justice cannot be served. Among the cases at risk of not being heard include one against the lifting of presidential age limits in Uganda. It was filed in May but is yet to be heard less than six months before President Yoweri Museveni runs again in the country's general elections in February.

The Court's 11 judges, whose number can be increased to a maximum of 15, serve a seven-year non-renewable term subject to retirement at the age of 70.

"Currently there are only seven judges out of the expected 11. By November 30, two of the seven shall have retired leaving the court with only five judges," said Yufnalis Okubo, the EACJ Registrar.

"The Appellate Division shall have two judges only come November, yet it requires a minimum of three. The First Instance Division shall remain with three Judges, none of which is either a principal judge or a deputy, which is against the Treaty."

Warning fired

Unless new judges are appointed, court sessions at EACJ will cease from December 1, the registrar has warned.

"Note by November 30, the President (Appellate Court) and the Principal Judge (First Instance Division Court) shall exit and if not replaced it will mean there will be six vacancies of judges to be replaced and the Court will be non-functional in the absence of the President, the Vice President, the Principal Judge and the Deputy principal Judge," said Mr Okubo.

The term of Justice Dr Emmanuel Ugirashebuja, the current President of the Appellate Division, ends on November 30, 2020, as does that of Uganda's Justice Monica Mugenyi, currently Principal Judge at the First Instance Division. Without a principal judge and deputy, the court wouldn't operate.

There are only three judges instead of five in the Appellate Division. The quorum is three and the court wouldn't sit if any of the current judges was unavailable.

No delegation proviso

Treaty provides that every case in the First Instance must be presided by the Principal Judge or the Deputy Principal Judge. There is no provision for delegation.

The same provisions apply for the Appellate Division, which provides that all cases in the division must be presided by the President or the Vice President with no provision for delegation.

The Appellate Division Judges, Vice President Justice Liboire Nkurunziza and Justice Aaron Ringera ended their tours of duty on June 20 and 26, 2020 respectively.

They are yet to be replaced.

By the time of his retirement, Justice Liboire from Burundi had served seven years while Justice Ringera from Kenya served a five-year term. Both retired at 70.

Justice Faustin Ntezilyayo, the Deputy Presiding Judge, First Instance Division, and whose term ended in June 2020, has since been appointed Chief Justice of Rwanda. He, too, is yet to be replaced.

Justice Fakihi Jundu of the First Instance Division who retired in July 2019 is also yet to be replaced.

Denis Namara, EALA chairperson general purpose committee, sayscourt cases have increased leading to a backlog, with a limited budget to match. In the recent Budget Estimates, the EACJ was allocated $3.9 million this year.

The Court was established under Article 9 of the Treaty for the Establishment of the EAC Treaty and formally inaugurated on November 30, 2001.

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