Time for EAC to lower its sights; throw out federation dream

The 18th East African Community Heads of State Summit finally took place in Dar es Salaam last week, after being put off three times.

At one point, Burundi requested postponement to remember the assassination of president Cyprien Ntaryamira, when the plane of Rwanda’s Juvenal Habyarimana was shot down near Kigali in 1994. Another was put off to allow Kenya to complete its party primaries ahead of the General Election in August.

The reasons sound plausible, but Burundi’s “Assassination Day” and the dates for party primaries in Kenya were known well before the Summit dates were set. So, were these the real reasons for rescheduling? Sceptics suspect deeper problems. Interpersonal relations between the EAC heads of state seem uneasy, if not sour.

Rwanda feels that Burundi’s Pierre Nkurunziza is stoking a regional crisis. A majority of the nearly 400,000 people said to have fled Burundi are Tutsis, and many have gone to Rwanda. President Nkurunziza’s practices echo — rather uncomfortably and personally for President Paul Kagame — the Hutu-led anti-Tutsi pogroms in the late 1950s and early 1960s in Rwanda that forced him and his family into exile.

President Uhuru Kenyatta was miffed that the EAC was lukewarm— even hostile — to Cabinet Secretary Amina Mohamed’s candidacy for the chair of the African Union Commission. Kenya suspects that Burundi and Tanzania abandoned Amina while Uganda says it stuck with her. Nairobi is sceptical.

Blowing hot and cold

Tanzania and Kenya have been in a zero-sum race for the infrastructure corridor of the EAC. But Nairobi recently lost that race, when Kigali and Kampala abandoned the previously agreed rail and pipeline routing through Kenya for the Tanzanian alternative.

In foreign policy, the Community is sharply divided: Rwanda and Kenya have signed the Economic Partnership Agreement with the European Union while Tanzania and Uganda are holding out, citing national interest. Burundi is under EU sanctions, and is presumably EPA-ineligible as a result. When the talks with the EU began, South Sudan was not a member of the bloc.

For reasons personal to Presidents Kenyatta and Nkurunziza, Kenya and Burundi do not like the International Criminal Court (ICC): Burundi has pulled out; Kenya threatens to pull out; Tanzania says it won’t pull out; Uganda attacks the Court but President Museveni has referred Joseph Kony and the high command of the Lord’s Resistance Army to the court — suggesting he is hot for one purpose and cold for another, as it suits him. Rwanda is not party to the Rome Statute.

In this web of sometimes over-lapping and conflicting interests, common ground is hard to find. It will not get any easier when Somalia joins the bloc. Ethiopia, which needs larger markets for its growing economy, is waiting backstage and regularly observes EAC meetings. If it does join, its complicated relationship with Somalia would add stress to an already strained Community.

Ebullient versus brusque

To put the EAC’s strains into perspective, consider how the Summit’s communiqués have changed in a decade. In the early days, they were ebullient and exultant; now they are brusque, even despondent.

Start, randomly, with the communiqué from the 8th summit in 2006. It is a 10-page document ringing with positive and vigorous words like “historic,” “commendable” and “successful.” “Highly commended” appears eight times; “applauded” four times and “noted with satisfaction” 10 times. This was a summit on a roll, happy with its achievements and so self-assured that it admitted two new members at a go — Rwanda and Burundi.

Their one “serious concern” was a then live lawsuit in the Dar High Court between the East African Development Bank and Blueline Enterprises. Blueline had sued the EADB, and two months to the summit it had got a court order to attach $68,546,653 of EABD’s money in a Standard Chartered account in Dar es Salaam.

The High Court rejected EABD’s plea that it had immunity under its founding instruments and it is this that was causing the “serious concern.” EADB won the case on appeal in 2011.

Imploring language

Contrast the optimism of 2006 with the communiqué that came out of the 17th Summit 10 years later. It was a muted, even despondent document. Where the summit once jubilated, it now merely recorded “the steady progress made.” In dispirited tone, it noted that “Council decisions” and “directives” had “remained outstanding for many years”; that there had been “delays in ratification of protocols” and that there were “Bills enacted by the East African Legislative Assembly” that had not been assented to. The vigour was gone.

Unequivocal language had been replaced by imploring. Partner states were directed “to implement all the outstanding decisions” and to “report the status to the next summit of the heads of state.” Elsewhere, partner states were asked to “consider” taking action on a range of issues: Raw hides and fast-tracking the vertical integration of the textile and leather industries, and many other matters that should have been done earlier.

The good news was the admission of South Sudan, the launch of the e-passport and the EAC Vision 2050, and the approval of senior appointments, including Secretary-General Liberat Mfumukeko. A report on the political federation was tabled but deferred.

Further action was urged — but no agreement was reached — on the automotive industry and on used clothes, among other things. The change in tone is not merely a change in writing fashion. It is symptomatic of a deeper malaise. There are two reasons for thinking so.

Undermining the “realistic”

First, the strains on EAC integration suggest growing political pushback by member states. That means that any closer union could unleash an anti-EAC backlash similar to the anti-EU sentiments in Britain and France. Much remains to be done on the Common Market and yet the EAC has expanded, with the entry of South Sudan. Somalia is in the pipeline and Ethiopia seems just a matter of time.

If the latter two join, there will additional strains. Consider, first, the difficulties of nearly doubling the EAC’s population and, second, integrating countries that do not share current “understandings” about the Community.

Second, the EAC has undermined the “realistic” by pursuing the “unattainable.” By keeping the maximal community goal of political federation permanently on the agenda, the EAC also, unwittingly, keeps alive the historically divisive “fears of dominance” that destroyed the old EAC in 1977. Always lurking in the background, those fears — though unspoken — make it harder to achieve more modest integration goals.

The Summit must take responsibility for these barriers. The presidents seem to have become slightly inebriated with their success from 1999 to 2010. The EAC Treaty was signed on November 30, 1999 and came into force in 2000. Rwanda and Burundi joined on July 1, 2007. The Customs Union was established in 2005, followed by the Common Market in 2010. Success this rapid can induce vertigo. No wonder, then, that by the mid-2000s, a federation seemed inevitable.

Free movement held hostage

And yet the fact that it has been so hard to make the Common Market work over the past six years should have forced the Summit to rethink the EAC and especially political federation.

Member states fear that the freedoms of the Common Market cannot embrace the civil and political freedoms of a federation. Right now, the EAC seems either deadlocked or deeply reluctant to implement fully the free movement of goods, people, services and capital that underpins the Common Market.

True, in law, goods are free to move across borders but non-tariff barriers — failing to apply Community laws, arbitrary application of quality and safety standards, corruption in transit and other in-country regulations — remain serious impediments. Cross-border services are constrained, and the right of establishment, on which the free movement of services depends, is blocked everywhere, in some places by law and in others by practice.

People can move reasonably freely, but free movement is hostage to unwritten rules and police and immigration attitudes. Capital can move but a new wave of nationalism, especially in Tanzania where a history of domination by Kenyan companies still rankles, is putting the brakes on this. None of the countries fully honours the principles of non-discrimination and equal treatment of member-state nationals, which the Treaty commands.

To that incomplete agenda, more has now been added. South Sudan must begin to harmonise its laws with those of the Common Market. The verification exercise to admit Somalia needs to be completed and then Mogadishu must begin the long process of joining and harmonising with existing laws and practices. All this will make the Common Market harder to achieve, what with new partners with such asymmetric state capacities and preparedness.

Regional security

The bad news then is that the step-wise process prescribed by the Treaty in which the Community integrates toward a political federation is a fairytale. The building blocks are not in place. The explicit preconditions set out in the Treaty have not been met and will not be met soon.

The political union would follow the earlier stages of integration. It would be buttressed by good governance and common foreign and security policies. On security and foreign policies, member states could not be further apart and the few policy issues on which they agree cannot form a platform for a federation.

So far, on security, the Community has agreed on four main areas: Implementation of the protocol on drug trafficking; interdiction of small arms and light weapons; co-operation on police matters; and bringing the East African Brigade into operation. These are important. But East Africa’s biggest security risk right now is the danger of state breakdown — in Burundi and, perhaps, in South Sudan.

On Burundi, the Summit has been complacent. It thinks that the worst of the crisis is over and that the country is stabilising, as the talks facilitator Benjamin Mkapa said in his latest report to the Summit. That view will please President Nkurunziza, but it will alienate an opposition that has been suspicious of Mkapa from the very start.

In coddling Mr Nkurunziza, the Summit forgets the history of the Great Lakes region. Every time a large number of people flee into neighbouring countries, they seed rebel movements within a decade or so. Remember Uganda, Rwanda, Burundi and South Sudan?

More bad news

So, on security, the EAC is far from ready for a federation. On foreign policy, it is even further away, as the disagreements on the ICC, Amina Mohamed candidacy’s for the AUC chair and the EPA clearly show. But, even without these alignment and co-ordination problems, there are sharp disagreements on tactics.

How fast, for example, should the EAC move towards federation? President Museveni, once thought to fancy the EAC presidency, wants to fast-track federation.

Everyone else wants to move more cautiously. And more bad news: Even if the EAC federation were plausible, history condemns such unions in Africa. In 1958, Egypt forged one with Syria and Yemen. This was phenomenally popular — supported and ratified by overwhelming majorities in Egypt and Syria.

When Yemen joined later in the year, the United Arab States was formed. It lasted only three years, collapsing in September 1961 following a military coup in Syria. Later, in 1981, Senegal and Gambia united to form Senegambia. The union collapsed in 1989, with Senegal frustrated that Gambia was stalling.

There were many problems at play: Conflicting legal and bureaucratic traditions — continental French versus Commonwealth British — and backstage games by the respective former colonial powers, France and Britain.

Tanganyika’s Union with Zanzibar may be thought an inspiration. But even here, the strains are deep. The ruling Chama cha Mapinduzi fears secessionist sentiment on the Isles and perpetually frustrates free and fair elections there, stoking the very thing it fears. This same fear was part of the reason why constitutional reforms in Tanzania stalled just before the 2015 polls.

There is no happy ending to this story. However you look at it, a political federation presents insuperable obstacles. It also provokes emotions that undermine integration on less ambitious matters. It is time the EAC lowered its sights, threw out the dream of federation and toiled to make the Common Market succeed.

Wachira Maina is a constitutional lawyer.