Treaty Amendments and Access to Justice at the East African Court
On 31 March 2017 the East African Court of Justice (‘the Court’) handed down its judgment in the case of Steven Deniss v The Attorney General of Burundi et al.. This judgment deals with important questions regarding the Court’s power to assess the legality of amendments to the Treaty for the Establishment of the East African Community 1999 (‘EAT Treaty’) and guarantee individuals’ access to justice.
The applicant in this case was Steven Deniss, a Tanzanian national, who alleged that he was shot, stripped of his property and forcibly expelled from his home in the Kigara Region of Tanzania by State security forces. He claimed that these acts breached provisions of the Treaty; however, he maintained that he was unable to lodge a claim at the Court as his action was time-barred by virtue of section 30(2) of the EAT Treaty. S.30(2) was introduced as an amendment to the EAT Treaty and provides that individuals have a period of two months from the date of the unlawful state action, or knowledge of it, to make a claim.
The applicant instituted a claim at the Court against the Attorney Generals of all the East African Community States, arguing that s.30 runs counter to Articles 6(d) and 7(1)(a) of the EAT Treaty. These provisions concern fundamental Community principles such as the need for accountability and the need for the Community to be people-centred in its operations. The Applicant also claimed that the 2 month time period was unduly short and consequently obstructed individuals’ access to justice. The applicant argued that s.30 therefore amounted to an unlawful amendment which should either be declared void by the Court, or extended to not less than a period of 6 months. The respondents argued that the applicant’s claims should be struck out as only states have the power to amend the EAT Treaty. They also argued that s.30 provides ample time for making applications before the Court.
In its decision, the Court first dealt with the issue of jurisdiction. The key issue in relation to jurisdiction was whether or not the Court had subject-matter jurisdiction to hear the case. The Court reasoned that it had subject-matter jurisdiction because, in its view, the essence of the applicant’s claim concerned a question of treaty interpretation. As the interpretation of any “act” of a Community State is part of its judicial mandate as laid down in Articles 27(1) and 30(1) of the EAT Treaty, the Court concluded that it had subject-matter jurisdiction. The Court’s reasoning that the amendment was an “Act” that it could interpret was certainly creative and interestingly, in the absence of express provisions granting them power to do so, many national jurisdictions have adopted similar reasoning in order to rule on the legality of treaty amendments. S.27(1) however, is expressly qualified by the provisio that the Court’s jurisdictional remit “shall not include the application of any such interpretation to jurisdiction conferred by the Treaty on organs of Partner States” and Article 150(1) explicitly states that the EAT Treaty “may be amended at any time by agreement of all the Partner States.” Taken together, these articles appear to place rulings on treaty amendments outside the remit of the Court and it could have elaborated more on how it nevertheless deemed itself to have jurisdiction over this case.
The Court further found that the time-limit presented no obstruction to access to justice nor infringed on other fundamental provisions of the Treaty because it merely regulated the procedure for applications to be made and was neither capricious nor unreasonable. It is difficult to see how a period of just two months from the date or knowledge of the action can be held to be objectively reasonable. Other international courts, such as the African Court of Human and Peoples’ Rights and Caribbean Court of Justice have no set time limits for bringing claims, and many of the Courts that do impose time-limts, such as the Inter American Court of Human Rights and European Court of Human Rights, set them at 6 months from the date of exhaustion of domestic remedies.
Whilst the Court’s holding that its powers of review extend to treaty amendments provides it with greater ability to ensure the rights of Community citizens are upheld, its justification for a time-bar completely out of step with most other international courts was dubious and the Court should re-visit the legality of this amendment in future cases.