The road to certainty: demarcation of the East African court of justice’s jurisdiction

Kiboi, Barclay Momanyi
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Strathmore University
Since the amendment of the EAC Treaty in 2007, the EACJ lacks the jurisdiction to preside over human rights matters. This is due to the unwillingness of the partner states to give up on their sovereignty and to be supervised by a higher Court. Consequently, the EACJ judges have been left exercising judicial activism in some cases while others judicial restraint. As a result, this has led to legal uncertainty as litigants are unable to predict the admissibility status of their petitions and denial of access to justice due to fear of the Court declaring it lacks jurisdiction or the illegitimacy from its judgement. This dissertation examines the EACJ jurisdiction regarding human rights matters and concludes it lacks. Relying on decided cases by the Court, interpretation by relevant scholars, and comparative analysis using the ACHPR, the dissertation finds that the EACJ lacks a well-defined human rights jurisdiction while the ACHPR has a comprehensive jurisdictional and admissibility framework. The research concludes that the EACJ should emulate from the ACHPR when coming up with a jurisdictional protocol to enable legal certainty and access to justice. Moreover, the research recommends that an extended jurisdictional protocol regarding human rights is imperative to legal certainty and access to justice. Consequently, the partner states should ratify an extended jurisdictional protocol that promotes human rights protection that is also in line with margin of appreciation doctrine and principle of subsidiarity
Submitted in partial fulfilment of the requirements of the Bachelor of Laws Degree, Strathmore University Law School