By LUKE ANAMI

More by this Author

Nestor Kayobera, the president of the East African Court of Justice, spoke to Luke Anami about the court’s performance and other related issues.

What is your top priority for the court as its president?

It is to ensure the mandate of the court is fully accomplished. By November, the court will be 20 years old yet it is hardly known by national judiciaries, government institutions, citizens of the community and worse still by practising lawyers. I will endeavour to ensure key stakeholders come to understand the court, its jurisdiction and what it stands for in the integration process through court sessions and raising awareness in partner states.

How many cases are pending before both the First Instance Division and the Appellate court to date? Are there any that have been overtaken by events? If so, which ones and how do you intend to handle them?

At the moment at the Appellate Division there are 19 pending cases. This is because not all cases decided at the First Instance Division are appealed against. With sufficient resources these are cases we can clear within three sessions only.

For the First Instance division, there are 142 pending cases. It’s in the First instance division where all cases commence hence the high number. We are just past half of the year so you can imagine by the end of the year and based on previous statistics, the number you are seeing today is likely to have doubled.

Yes, we have cases that are pending. In such cases the person who moved to Court may opt to withdraw the matter or may still wish to proceed.

The EACJ has continually been under funded by EAC Partner states. What plans have you put in place to ensure funding does not disrupt its performance?

The problem of funding runs across the Community and it’s not just for the Court. The partner states should consider increasing the budget of the court by taking into account the courts work and its output.

Secondly, we implore our partner states to consider that we do not have control of the number of litigants who file cases at EACJ. It’s possible to have even a 1,000 people file cases in one month and because we do not have control of that, the mere fact that the number of cases filed has been going up, they should consider increasing the budget of the Court to cope with the increased workload.

We are also looking at a trust fund for the Court as that may also reduce the burden on our partner states because it shall be funding all activities of the Court. It has been tried at the Caribbean Court of Justice and is working.

Some have questioned the enforceability of the court’s decisions. How do you ensure partner states adhere to court decisions?

Just like all other international courts, the EACJ does not have its own mechanism for enforcement of its decisions. However, execution of a judgement is enforced through the execution mechanisms in the country where one intends to enforce. The Treaty provides clear provisions on that.

Secondly by the provisions of Article 38(2) failure by a partner states to implement the judgement of the Court is in itself a violation of the Treaty. Remember once a court has rendered a judgement, it does not follow up to ensure that its decisions have been implemented; the Court may only become aware if the matter is brought back before it.

What is ailing the EACJ court and how do you intend to fix any challenges?

First is the ad hoc nature of the services of judges. The judges only come to Arusha once every quarter of a year meaning four times in a year yet the number of cases is increasing. The turnaround time of completing a case is now going up in as much as we are putting in a lot of efforts amid a lot of difficulties to have the matters determined in a short time.

If we had all judges residing in Arusha then the Court would be a real time Court and within three months, the cycle of a case would be finalised. I see no reason why partner states shouldn’t allow that since after all they appointed the judges.

Some cases are overtaken by events because judges are not on site yet the case is filed under certificate of urgency. We have been talking with the Council of Ministers and we are hopeful that they will appreciate the value of having judges serve their full term of seven years while residing in Arusha.

Second is the administrative and financial autonomy. Because the temporary seat of the Court is in Arusha, most of our administrative management is done collectively with the Secretariat. That does not afford us the flexibility we deserve to manage the affairs of the Court. We are also in negotiation with the Council of Ministers to grant the Court full administrative and financial autonomy without going against the staff rules and regulations of EAC. A typical example is Article 45 (2) of the Treaty which if the Court is permitted to implement it would solve a lot if staff issues.

Third is the shortage of staff. When work is increasing like has been happening, staff are overworked. We are hopeful that a new organisation structure of the Court can be approved soon so that we get more staff on board.

***

EXPERIENCE

Justice Nestor Kayobera previously worked as the director-general in charge of judicial organisation and director of resources in the office of the Attorney General, Burundi.

He is a judge at the Labour Court of Bujumbura. Principal legal advisor, Office of the Minister of Justice and holder of the republic seal, in charge of East African Community Affairs.

Education: Master’s degree, Public International Law (Hope Africa University, Bujumbura); Post-graduate diploma, Law, mediation and Arbitration (Institute of Social Work, Dar es Salaam); Multilateral diplomacy, (Graduate Institute of International Studies, Geneva)