CHALLENGES TO FAST TRACKING THE EAST AFRICAN POLITICAL FEDERATION

CHALLENGES TO FAST TRACKING THE EAST AFRICAN POLITICAL FEDERATION

RESEARCH REPORT

Qualitative Research commissioned by Justice Forum (JEEMA)

Policy Development Advisory Committee

Funded under NIMD Bilateral support 2015

Researcher:

Omar D. Kalinge-Nnyago

August 2015

LIST OF ACRONYMS AND ABBREVIATIONS

EAC          East African Community/Cooperation

EACJ         East African Court of Justice

EACSO      East Africa Common Service Organization

EADB        East African Development Bank

EALA         East African Legislative Assembly

EDS           East African Cooperation Development Strategy

GDP          Gross  Domestic Product

GNP          Gross National Product

IUCEA       Inter-University Council for East Africa

JEEMA      Justice Forum (Political Party, Uganda)

KACITA     Kampala City Traders Association

MEACA      Ministry of East African Community Affairs (Uganda Government)

NIMD         Netherlands Institute for Multiparty Democracy

PDAC        Policy Development Advisory Committee

RECs         Regional Economic Communities

UMA          Uganda Manufacturers Association

UN            United Nations

EAPF         East African Political Federation

1.0     EXECUTIVE SUMMARY

The justification for dedicating attention to the issue of fast tracking regional integration in East Africa is not difficult to discern. A united East Africa is important for development as markets would become larger, resources easier to mobilize and security of member states enhanced through complementary efforts. Labour would move freely across borders, thus alleviating the scourge of youth unemployment in the region, Uganda in particular. 

In August 2004, the summit of the heads of state of the East African Community (EAC) appointed a committee of six experts, two from each partner state, to conduct a study on the possibilities of fast tracking EAPF. The summit invoked Article 123, paragraph 6, which empowers the heads of state “to initiate the process towards the establishment of a political federation … by directing the Council to undertake the process.”   The committee submitted its report in November 2004, after conducting a three-month study.  

The study concluded that the support for the EAC political federation project by Ugandans has provided the Museveni presidency with an opportunity to push integration of the region within the framework of the summit. However, the 27 December 2007 Kenyan electoral debacle and the support President Museveni gave Mwai Kibaki during the crisis had negatively impacted on the project, particularly Museveni’s intentions in the region. Uganda was the only EAC member state that immediately recognized the outcome of the elections in Kenya.

This particular study we have undertaken eleven  years after the first one posts almost the same findings - that Fast Tracking East African Political Federation, is not an attractive proposal to the majority East Africans.

Findings

The following Challenges to East African federation were identified

1. Relatively young, fragile democracies;

2. Weak shared vision

3. Poorly harmonized (regional and national) policies, laws and regulations

4. Poor and imbalanced infrastructure

5. Weak national currencies and financial systems

6. Dependence on donor funding

7. Marginalization of grass-root level stakeholders

8. Limited institutional capacity

9. Tardiness in implementing decisions

10. Weak Monitoring and Evaluation Mechanisms.

The following threats to the East African Cooperation were identified

1. Marked differences in the economies of Partner States

2. Weak competitiveness at the global level

3. Multiple membership in Regional Economic blocks or RECs and resultant competing interests

4. Weak linkage between development strategies and democratization;

5. Global Warming and Environmental Degradation;

6. Brain Drain; and

7. Terrorism

Most respondents agreed that the disparity in levels of democracy in the partner states and the differenced in state structures and political history make cooperation fast tracking the cooperation difficult.

According to an EALA legislator interviewed, Uganda’s democratic record is despised in the region. The lifting of presidential term limits, the sole candidate project of the NRM makes other East African wary of accepting even lofty proposals that originate from Uganda.

He also pointed to Uganda’s turbulent political history, nine presidents since independence none of whom having handed over power to another peacefully- as sticking point in Uganda-and East African relations. This coupled with Ugandans interventionist policies in the region have not helped the situation.

Conclusion and recommendation

When we read EAC documentation on ‘Fast Tracking’, and compare it with the respective EAC Treaty provisions relating to the modus operandi on rolling out integration, we are left in serious doubt whether the two are in harmony.  

It is our recommendation, therefore, that if we are genuinely concerned with the slow pace with which the integration process is taking, that in itself cannot serve as a sound basis for ignoring the pacta sunt servanda rule. (Pacta sunt servanda is Latin for "agreements must be kept"). It would seem to us, the only conventional and legitimate course of action is to amend the Treaty, so as to replace the gradualism and pragmatism engraved in the EAC Treaty of 1999. 

2.0     INTRODUCTION

The justification for dedicating attention to the issue of fast tracking regional integration in East Africa is not difficult to discern. A united East Africa is important for development as markets would become larger, resources easier to mobilize and security of member states enhanced through complementary efforts. Labour would move freely across borders, thus alleviating the scourge of youth unemployment in the region, Uganda in particular.

Contemporary international law, politics and economics have all come to accept the reality of sub-regional and regional intergovernmental mechanisms, of which regional economic blocs seem to be the most pervasive.

The UN Charter, 1945 explicitly recognized  the role and significance of regional mechanisms, and in turn, regional instruments like the African Union Constitutive Act, 2000 does acknowledge the existence of “regional economic communities (RECs).

The EAC serves an attractive subject matter of research for the additional reason that there exist divergent interpretations or lacuna on several important issues. For instance, while the prevalent approach is to trace regional integration to the British colonial initiative in linking Uganda to the port of Mombasa by rail (1894-1901), the truth of the matter, is that, ‘functional integration’, along with other forms of socio-economic intercourse among communities inhabiting the East African region, is of far more older vintage. In other words, integration is not only a visible characteristic of the region, but the scale of the integration and its impact has been fairly considerable and stretches back to pre-colonial times.

In August 2004, the summit of the heads of state of the East African Community (EAC) appointed a committee of six experts, two from each partner state, to conduct a study on the possibilities of fast tracking EAPF. The summit invoked Article 123, paragraph 6, which empowers the heads of state “to initiate the process towards the establishment

of a political federation … by directing the Council to undertake the process.” Article 123, paragraph 7, on the other hand, provides that the summit may order a study to be  first undertaken by the council. Kenya’s Attorney General, Amos Wako was appointed chairman of the committee. The committee submitted its report in November 2004, after conducting a three month study. [Policy Brief 4; Fast Tracking East African Political Federation: A View from Uganda Korwa G. Adar, 2008]

The study concluded, that the support for the EAC political federation project by Ugandans has provided the Museveni presidency with an opportunity to push integration of the region within the framework of the summit.

However, the 27 December 2007 Kenyan electoral debacle and the support President Museveni gave Mwai Kibaki during the crisis had negatively impacted on the project, particularly Museveni’s intentions in the region. Uganda was the only EAC member state that immediately recognized the outcome of the elections in Kenya.

Problem Statement

The five EAC member states are not moving at the same pace towards political federation. Uganda’s   leadership seems sold to the idea of fast tracking the political federation. Kenya’s and Rwanda leaderships are moderately committed to political federation but more to economic federation. Tanzania’s leadership (which greatly influences Burundi) is less enthusiastic on both, indeed it is the most cautious partner. The citizens in all partner states are at the periphery of decision making. Why is the idea of fast tracking not attractive to all? Is fast tracking achievable? What are the bottlenecks to achieving  East African Political Federation?

  Definition of Terms

Fast Tracking

  Fast Tracking means accelerate the development or progress of (a person or project

With regard to fast tracking EAC federation  in general, Uganda as early as 2004,  recommended overlapping  of the four stages of integration provided for  in Article 5(2) of the treaty namely, a Customs  Union, a Common Market, a Monetary Union  and a Political Federation. This would enable parallel activities to take root and be achieved adequately overtime.

People-centered institution in the East African context,  means, primarily, an  EAC ‘known and owned’ by the people for whose benefit the Community was established.

The Summit

The Summit is composed of the Heads of State or Government, whose main mandate is to   ensure that the organization is pursuing its objectives in conformity with the obligations of the treaty.

The Council

The Council is the main policy organ of the EAC with statutory responsibility to, inter alia, oversee and promote the implementation of the EAC’s vision and mission; give directions to the EAC organs, except the Summit, the EALA and the EACJ;  

The Coordination Committee

The Committee consists of Permanent Secretaries of Ministries of regional cooperation of the partner states.  

The Sectoral Committees

Sectoral Committees consist of experts on a specific sector.  

The East African Court of Justice

The EACJ is the judicial organ of the Community responsible for ensuring adherence

to the law, that is, interpretation and application of the treaty.  

Customs Union

A state when customs tarrifs are uniform for all goods across the member states.

Monetary Union

A state when the whole East African union will have a single currency

Political Federation

State when the whole of the East African region will have  a unified political structure- an East African Government.

Objectives of the Research

1.    To establish the status of the Cooperation, against agreed objectives and timelines of the EAC

2.    To identify the challenges to the fast tracking of the East African Political federation

3.    To identify ways and means of mitigating

a)    the implementation of agreed  upon objectives

b)    Obstacles to the Fast tracking of the East African political federation

4.    To generate recommendations for mitigating the challenges of the cooperation   

Hypotheses

1.    Without political will a political Federation for East Africa will remain a distant dream.

2.    Unless skepticism between partner states is managed an East African Political federation will take long to achieve.

3.    Unless substantial financial resources are committed by partner states a speedy progress towards political federation to elections is not possible.

4.    Unless the legal frameworks relating to elections are harmonized by the partners, a political federation will not be realized in the near future.

5.    Unless the citizens of the partner states are fully integrated in the decision making processes of the East African Community, a political federation will be very difficult to achieve and   once achieved it might not be sustainable.

Literature Review

History of East African cooperation

Regional co-operation efforts within East Africa dates back to 100 years whereby a first Customs Union was formed by Uganda and Kenya in 1917 and later joined by Tanganyika, now Tanzania in 1927. In 1967 the first attempt at forming an East African Community by Kenya, Tanzania and Uganda started but later failed in 1977, the reason being a number of important political and economic issues could not be agreed on by three states.

As a result of the dissolution of the organization, a mediation agreement on division of various assets and liabilities was agreed upon. One of the provisions of the mediation agreement was, the three states had to agree to explore areas of future co-operation and further make concrete arrangements on such co-operation.

Meetings that followed involving the three Heads of States ensured the signing of the Agreement that established the Permanent Tripartite Commission for East African Co-operation in November 1993. In March 1996, full East African co-operation efforts begun when the commission was launched at the EAC Headquarters in Arusha, Tanzania.

There was a need to consolidate regional co-operation, thus the Heads of States issued a directive for the Permanent Tripartite Commission to start the process of upgrading the Agreement establishing the commission for East African Co-operation into a Treaty. Later on, the three countries resolved to sign the Treaty re-establishing the EAC.

The current East African Community (EAC) is a rebirth of the one that was dissolved in 1977 due to political and managerial disagreements among the partner states. However, since its inception in the late 1890s when the Uganda Railway that linked the three countries was being constructed, the community struggled to survive.

The creation of the East African Community in 1967, soon after the three main countries of the community gained independence, had its seeds in the proposed East African Federation of the earlier days of British administration. Kenya and Tanganyika were for the federation but it was vehemently opposed by Buganda not wanting to be subjected to a wider confluence where the Kabaka’s power was not going to be acknowledged.

When the community came into existence on December 1, 1967, it was tasked to advance the old establishment of the Customs Union and a series of common services.

Before the treaty, there were other forms of economic association treaties. Efforts to modify the services were contained in a report from the Raisman Commission which carried out an extensive study of the relevancy of the common services and common customs to the community between 1960 and 1961. The Raisman Commission was followed by the Kampala Agreement of 1964.

The common market
During the 1950s when the three countries were still under the British administration, they cooperated on a number of fronts, including the common market with more or less a uniform external tariff.

Under this arrangement, there was virtually free trade of goods imported or those manufactured in any of the three countries.

Another area of association was the common currency issued by the East Africa Currency Board. The East African Shilling was freely convertible to the British Sterling, which during the 1950s and early 1960s was at par with the East African shilling.
Then there was no restriction on the movement of money across the three countries since most, if not all, banks in the region were subsidiaries of British-based banks.

The third common service was the jointly administered services under the East African High Commission which was later reorganized and became the East Africa Common Service Organization (EACSO). These services included posts, railways and airways. Some of these services were described as self-containing because they were financed from their own revenues.

Other common services, also called the general fund services, included the collection of direct taxes and the provision of a number of agricultural, medical and other research services financed by the British government, other overseas foundations and partly by the three East African governments. According to the Uganda Argus newspaper of May 13, 1960, “The expenditure on the services totalled to five per cent of the combined recurrent expenditure of the three countries by 1960.

About The EAC: Appointment and Governance Structures 

There are 7 organs of the EAC established under Article 9 of the treaty. Whereas the

Summit of Heads of State or Government; the Council of Ministers, the Coordination

Committee; the Sectoral Committee, and the Secretariat share executive powers, the East African Court of Appeal and the East African Legislative Assembly share federal judiciary and federal legislative powers respectively (Kamala 2006: 8). These organs are discussed hereinafter with the objective of underpinning their structural and operational functions.

1. The Summit

The Summit is composed of the Heads of State or Government, whose main mandate is to ensure that the organization is pursuing its objectives in conformity with the obligations of the treaty. In the absence of a member of the Summit, the member may appoint a Minister as a replacement. Unless an extraordinary meeting is requested by a member state, the Summit holds its meetings once a year, with the Office of the Chairperson held on a-yearly rotational basis. Decisions of the Summit are arrived at through a consensus. Its other operational functions include, among other things, reviewing progress on political federation; considering and approving annual reports; and assenting to Bills of the EALA. The Bills assented to by the Summit become the Acts of the Community. The treaty also confers legislative powers on the Summit, a statutory responsibility which has the potential of undermining the role of the EALA.

Article 11 (6) of the treaty provides that “An Act of the Community may provide for

the delegation of any powers, including legislative powers, conferred on the Summit by

this treaty or by any Act of the Community, to the Council or to the Secretary

General” (EAC Secretariat 2002).

2.The Council

The Council is the main policy organ of the EAC with statutory responsibility to, inter alia, oversee and promote the implementation of the EAC’s vision and mission; give directions to the EAC organs, except the Summit, the EALA and the EACJ; scrutinize the budget and submit reports to the Summit; establish Sectoral Councils and Sectoral Committees for purposes of proper operations of the EAC; and initiate Bills to the EALA. As in the case of the Summit, the legislative responsibility conferred on the Council has the potential of usurping the role of the EALA, particularly in a situation where the two organs disagree on policy issues. The Council of the EAC comprises of the Ministers who are in charge of regional cooperation in each of the partner states.

The Council meets twice a year, with one of its meetings held in advance before the Summit meeting. The Council is the organ that directly reports and advises the Summit on the implementation and development of the EAC objectives. This is not to argue that the Summit does not have the authority to request a meeting with any other organ of the Community. The Council also has the option of convening an extraordinary meeting, usually at the request of a member state or the Chairperson of the Council. Extraordinary meetings are convened to deal with pending or pressing EAC-related issues. As in the case of the Summit, consensus is the main principle that guides its decision-making process during the Council’s meetings.

3. The Coordination Committee

The Committee consists of Permanent Secretaries of Ministries of regional cooperation of the partner states. Its meetings are held twice a year prior to the Council’s meetings to enable the Committee to coordinate the programme for the Ministers for Regional Cooperation for whom they are directly accountable. The Chairperson, who is appointed on a rotational basis among the members, may convene an extraordinary meeting to deal with specific issues. The Committee’s functions include, for example, preparation of reports for the Council; implementation of the recommendations of the decisions of the Council; and coordination of the reports of the Sectoral Committees.

4. The Sectoral Committees

Sectoral Committees consist of experts on a specific sector. The Committees are established by the Council, through the recommendation of the Coordination Committee, to deal with EAC-related issue areas. The Committees meet as frequently as circumstances may warrant, particularly in order to ensure that proper implementation of the sectoral programmes are adequately fulfilled.

5. The East African Court of Justice

The EACJ is the judicial organ of the Community responsible for ensuring adherence

to the law, that is, interpretation and application of the treaty. The EACJ comprises of

two judges from each member state and shall be appointed for a maximum of seven

years by the Summit. The President and Vice-President of the Court are appointed by

the Summit on a one-term rotational basis. A judge is expected to serve the full term

of office as prescribed in the treaty unless he or she resigns; is seventy (70) years of

age; dies; or removed by the Summit after the submission of a recommendation of an independent tribunal, a body comprising of legal experts who are also appointed by the Summit.

The EACJ has the initial jurisdiction over the interpretation and application of the EAC treaty. The Court also has the original, appellate and human rights jurisdictions on issues associated with the treaty. For example, partner states; the Secretary- General as well as legal and natural persons have the right to seek redress on the grounds of the infringement of the EAC treaty by a member state. The EACJ also has jurisdiction to hear cases involving the EAC and its employees.

6. The East African Legislative Assembly

The EALA, as in the case of national legislative assemblies, is the law-making organ of the EAC. As the legislative organ of the Community, the EALA is responsible for, among other things, approving budgets of the EAC; debating audit reports; performing an oversight function; and initiating Bills in the Assembly. Bills are normally introduced by any member and/or members of the Assembly. The Assembly may request the Council, as it has done over the years; to submit to it proposals on EAC related matters that may require its attention and scrutiny.

The EALA holds its proceedings once a year and such meetings are presided over by the Speaker. The Speaker is elected from among the representatives for a-five year term on a rotational basis. The EALA representatives hold office for five years and are eligible for re-election once for a further term of five years. Decisions in the Assembly are guided by a majority vote of the representatives present and voting (EAC Secretariat 2002: Article 58 (1)). Once a Bill has been enacted by the Assembly and assented to by the Heads of State or Government, it becomes an Act of the Community.

To help it discharge its legislative functions, the EALA is organized in seven Standing Committees namely: Accounts; Legal, Rules and Privileges; Transport, Trade and Investment; Tourism, Wildlife, and Natural Resources; Regional Affairs and Conflict Resolution; General Purposes; House Business; and Appointment. These Standing Committees serve important functions in providing useful and detailed information for further deliberation in the Assembly. It is with the help of the Standing Committees that a number Acts have been passed which include, for example, the Community Emblem Act; the EAC Legislative Assembly Power and privileges Acts; the Acts of the Community; the EAC Interpretation Act; and the Appropriation Acts.

 7. The Secretariat

The Secretariat is the executive organ of the EAC, responsible for the operations of the Community in conformity with the treaty. The Secretary-General is the EAC’s principal executive officer appointed by the Summit on a fixed five year rotational basis. The Secretary-General is not only in-charge of the Secretariat but also serves as the EAC accounting officer and secretary of the Summit. The other key officers of the EAC are the Deputy Secretaries General and the Counsel, with the latter serving as the legal adviser to the Community (EAC Secretariat 2002: Articles 68 and 69). The Secretary-General and the EAC staff are immune from civil process and immigration restrictions while performing their official duties prescribed in the treaty. As international civil servants, they are charged with the responsibilities to exercise their duties without due influence from a partner state and to uphold the Community’s international legal personality within the spirit of the treaty.

The EAC organs play both symbiotic and complementary roles in furtherance of the EAC objectives and principles.

These structural functional linkages provide the EAC with mechanisms for maintaining the flow of information across the various organs. The debate regarding the approval of the budget would provide a good example in this case. The initial stage for the EAC budget process begins with the Secretary General who prepares the draft and submits it to the Council for consideration. The Chairperson of the Council, as in the case of Ministers of Finance in the partner states, reads the budget in the EALA, the body responsible for debating and approving the budget. However, the EALA does not have the right to revise the budget but merely to debate it and approve, making the Assembly to be a “rubber stamp”   

Similarly, irrespective of these processes, the dominance of the Summit vis-a-vis the other organs, particularly with respect to the power of appointment of individuals directly or indirectly in charge of key positions at the national and regional levels is still a major challenge for democracy enlargement in the region.

These limitations notwithstanding, the EALA still has law-making authority, having passed important bills such as the Customs Union, the Common Market and the Lake Victoria Commission, among others, which have been transformed into protocols.

Decision-making within EAC

Decision-making within the executive organs of the EAC, particularly the Summit and the Council is carried out through a consensus as the guiding principle. On the other hand, the Sectoral Committees is empowered by the treaty to determine its own procedures for conducting its business. All the rules and orders made by the Summit and gazetted become into force as published thereto. Even though the treaty is silent on the voting system, it would not be far-fetched to assume that each member state has one vote, a practice which has historical roots in the EAC integration endeavors. President Julius K. Nyerere’s refusal to convene a meeting of the EAC Authority in the 1970s because of his differences with President Idi Amin Dada of Uganda, by implication not only stalled the Community’s functions but in many respects vetoed its raison d’être.

Why Tanzanians are least enthusiastic about fast-tracking EA political federation

Tanzania has been very cautious when negotiations for the EAC Common Market started, especially on matters pertaining to accessibility of its land to foreigners. It was, in fact, the former minister for EA Cooperation, Dr. Diodorus Kamala, who has spoken loud on the country’s position on land as the discussions were underway.

He made sure the government articulated well the country’s fears on access to its land by non-citizens when the Common Market Protocol comes into force. Unfortunately, this was misinterpreted in some quarters that Tanzania was, indeed, against many aspects of regional integration and was only using the land issue as a proxy.

It is no secret that some members of the regional bloc have portrayed Tanzania negatively as a country that fears competition from more qualified professionals from outside. Kenya, in particular, was seen to raise much concerns to the political gurus in Dar es Salaam, probably than the other three members of the EA union; Uganda, Burundi and Rwanda.

The northern neighbor, Kenya, is stronger economically with more industries operating compared to Tanzania. It is also the hub of foreign investments in EA from the West. But the concerns have been that, with land crisis boiling each passing day there (due to the rather skewed ownership), the crisis can spill over to Tanzania. That’s one.

Two, the rate of unemployment has not spared much of EA, including Tanzania, the second strongest economy in the region.

Three, Tanzania is the largest of all states and is blessed with a lot of resources, not only at times to the tune of all resources by its partners in the EAC bloc combined, but many countries in Sub Saharan Africa.

Because of its huge resources; wildlife, minerals, livestock, water, forests and, of course, productive land, there could be fears the resources could fall into the hands of non-citizens at the expense of the locals come the EA integration.

What lessons if any does the EU experience have for the EAC?

The colonial integration system, bequeathed to the newly independent States of Kenya, Tanzania and Uganda, in the form of the East African Common Services Organization (EACSO), was highly sophisticated, in terms of the institutional stage of economic integration it had achieved. This study makes two broad observations from that experience.

Firstly, that colonial policies and practices were essentially propelled by the dual goals of subjugation and exploitation, and were inherently discriminatory and unequal. Secondly, and arising from this, it would have been out of the ordinary for the colonial integration model to address (social, economic let alone, political) inequities, nor be a people-centred, upstream mechanism. Indeed, practically all studies of that period in time, the unequivocal verdict was the glaring inequity in distribution of benefits among Partner States.

When the three Partner States of Kenya, Tanzania and Uganda revived regional integration by adopting the East African Community Treaty in 1967, they set up an integration mechanism with no comparisons in independent Sub-Saharan Africa, nor Western Europe. However, it would appear that the ‘colonial legacy’ had not been totally shed off from the post-independence Community established in 1967.

And the Treaty Establishing the East African Community of November 30, 1999, acknowledges as much. Its preamble, points to “the main reasons contributing to the collapse of the East African Community [in 1977], and among which, we find “the continued disproportionate sharing of benefits of the Community among Partner States”.

Firstly, Europe took the gradual approach. Membership began with a humble 6 States, and expansion came in measured doses over a period stretching nearly four decades.

Secondly, gradualism also finds reflection in the legislative approach to the integration trajectory. No major transformation leap was ever undertaken, without full scale negotiations, consensus and adoption of a fresh treaty. There was absolutely no haste, in popping champagne bottles.

Thirdly, through its integrationist judgments such as Van Gend en Loos, and Costa, the European Court of Justice, contributed in an invaluable manner in shaping the direction and dictating the pace of integration.

Fourthly, a major driving force and determinant to the integration process and subsequent prosperity, was the existence of an identifiable and shared fear and core interests, which not only made integration attractive, but an absolute necessity.

Fifthly, was the presence of a passionate, dedicated ruling elite, especially in the early years of the EEC, right across all the founding States.

3.0       METHODOLOGY

A qualitative approach was used. Key informant interviews (KII) were conducted by arranging appointments to meet them at their preferred venues in Kampala, as there was no budget for extended inland or foreign travel.  KIIs were conducted following an interview guide. Desk research was conducted by reviewing relevant literature, analyzing credible source materials, key documents and publications on the East African community and frequently visiting the EAC website.

The Lead researcher worked with two (intern) research assistants. The team met regularly to monitor and evaluate progress for each phase. This research report was  written by the lead researcher. A first draft of the report is being submitted to the client and a meeting to review the draft will be arranged at the client’s expense. The client’s comments and input will be incorporated into a second draft which will be the final report. The report will be presented to PDAC.

Data Sources 

Secondary Data: The following literature was reviewed: 

·         East African Community statutes and instruments

·         MEACA (Ministry of East African Cooperation Affairs) documents

·         JEEMA party program (2011-2015)

·         Scholarly articles on East African Unity

·         Surveys on East African Cooperation

·         Reports on East African Community performance

·         Academic Theses (Graduate) on East African Cooperation

Population

Policy makers ,Policy Implementers,East African Regional Institutions, Business and Trade organization/beneficiaries, Civil society actors, Similar/Comparable Blocks

Sampling Technique

The sampling was purposeful and as the population is small, the whole population will be sampled. In all 11 Key informants will be interviewed.

Research Questions

What are the factors that have contributed to slow progress towards an East African Political Federation?

a)   Is it lack of political will?

b)   Is it skepticism for partner states?

c)    Is it a shortage of resources?

d)   Is it political incongruity between partners?

e)   Is it the Top- Down approach to East African cooperation which does not involve the citizens in decision making?

These additional questions were variably/selectively  put to the respondents

1. To what extent have the objectives of East African Community been achieved?

2. In your view, is fast tracking the East African political federation a good idea?

3. What are the factors that have contributed to slow progress towards an East African Political Federation?

a)   Is it lack of political will?

b)   Is it skepticism for partner states?

c)    Is it a shortage of resources?

d)   Is it political incongruity between partners?

e)   Is it the Top- Down approach to East African cooperation which does not involve the citizens in decision making?

f)     In your view, what else?

4.    What role should non-political actors play in the East African community?

a)   Business Community

b)   Academia

c)    Civil Society

5. In your view, is the goal of an East African Political Federation achievable in the next 5 years?

6. Do you have any recommendations on what should be done to fast track the East African Political Federation?

Limitations of the Research

While it would have been ideal for the researchers to travel throughout the East African region, budget constraints could not allow. The findings, therefore, are based on key informant interviews conducted in Kampala and analysis of published material. Not all anticipated key informants were interviewed due to strict time schedules and unavailability of responsible officers who are authorized to speak on the organizations’ behalf. Most non-political respondents were inhibited in response and expressed their discomfort at being quoted in the report, which was intriguing. We respected their wish not to be quoted. The reason could be that the EAC affairs, being a state-led venture is regarded as a matter of the exclusive interest of the government.

Significance of the Study

The justification for dedicating attention to the issue of regional integration in East Africa is not difficult to discern. A united East Africa is important for development as markets would become larger, resources easier to mobilize and security of member states enhanced through complementary efforts. Labour would move freely across borders, thus alleviating the scourge of youth unemployment in the region, Uganda in particular.

Contemporary international law, politics and economics have all come to accept the reality of sub-regional and regional intergovernmental mechanisms, of which regional economic blocs seem to be the most pervasive.

The UN Charter, 1945 explicitly recognized the role and significance of regional mechanisms, and in turn, regional instruments like the African Union Constitutive Act, 2000 does acknowledge the existence of “regional economic communities (RECs).

4.0     FINDINGS

The following Challenges to East African federation were identified

1. Relatively young, fragile democracies;

2. Weak shared vision

3. Poorly harmonized (regional and national) policies, laws and regulations

4. Poor and imbalanced infrastructure

5. Weak national currencies and financial systems

6. Dependence on donor funding

7. Marginalization of grass-root level stakeholders

8. Limited institutional capacity

9. Tardiness in implementing decisions

10. Weak Monitoring and Evaluation Mechanisms.

The following threats to the East African Cooperation were identified:

1. Marked differences in the economies of Partner States

2. Weak competitiveness at the global level

3. Multiple membership in RECs and resultant competing interests

4. Weak linkage between development strategies and democratisation;

5. Global Warming and Environmental Degradation;

6. Brain Drain; and

7. Terrorism.

Funding

The EAC is dependent on donor funding to an unsustainable level with an equally untenable membership subscription mechanism. To compound the problem, it also emerges that the EAC has an “inadequately operationalised regionally shared vision”, besides the marginalization of grass-root level stakeholders. Weak shared vision, and popular participation are particularly striking shortcomings, given the fact they constitute part of the broad range of factors responsible for the demise of regional cooperation in 1977.

Funding is a particularly acute problem. It is instructive that in my interview with the former EAC Secretary General, bankrolling the EAC emerges as a challenge of considerable magnitude. This was confirmed as I screened a number of key EAC documents, including the EAC Annual Report, the EAC Budget Speech by the Chairperson of the Council of Ministers, the EAC Development Strategy 2006-2010, and more notably, the EAC Partnership Fund Annual Report for the Financial Year 2009/2010.

Accessibility/People-Centred EAC

a)   Respondents acknowledged how the downstream, top-down architecture of the 1967 Community, proved to be an Achilles heel for integration, and ultimately contributed to the Community’s collapse in 1977. In a welcome departure, the 1999 EAC Treaty repeatedly commits itself to create a “people-centred” institution. We understand “people-centred” to mean, primarily, an EAC ‘known and owned’ by the people for whose benefit the Community was established. At the technical level, it should entail, putting in place publicly visible and accessible, and even more importantly, its policy and decision-making process genuinely, entails popular participation.

b)   We also learned from a serving Ugandan EALA legislator, that the premises (2nd Floor Ngorongoro Building at the AICC Complex) of the Directorate of Corporate Communications and Public Affairs, is physically far removed from the public eye. Access to the Directorate’s corridor and offices is only possible for those in possession of special card keys, ironically placing the ‘public face’ of a “people-centred” institution, in a ‘no-go area’ for the common man and woman of East Africa.

c)    It is instructive that the EAC-DS openly takes cognisance of the unfortunate fact that a “people-centred” EAC has yet to come into being. The EAC-DS admits how “key stakeholders especially the grass-root stakeholders” have been marginalized from policy design to the implementation.

One respondent went further to associate the notion of a “people –centred” EAC with that of an “East African Citizen” or “East African Identity”. His pessimism is founded on the argument that for “East African-ness” to take root and blossom there needs to be a generation raised around shared aspirations, values and a common education curriculum.

Even if this had not been achieved in the erstwhile EAC  arrangement, there at least existed the ‘Common Services Organisations’ and the associated free movement of EAC staff. He continued by pointing out that if an institution such as the IUCEA was created but with a mandate extending to lower levels of the education ladder, it would begin becoming possible to groom persons who would with justification identify themselves as ‘East Africans’.  And it is at that point, we can without hesitation be referring to the EAC as truly “people-centred”.  And this assessment is hardly farfetched, because even the physical accessibility of key EAC organs is quite limited. 

d)   A close examination of at least three organs of the EAC, quiet readily confirms the conclusion of even, the EAC-DS. The three are: the Secretariat; East African Legislative Assembly (EALA) and the East African Court of Justice (EACJ). The Secretariat, according to the EAC Treaty of 1999, is “the executive organ” occupying a role not too dissimilar to that of the European Commission with the EU. 

Initiation of Programs and Policies

It is, the EAC Secretariat that practically initiates all major most strategic programmes and projects. Besides the problem of financial sustainability and human resource adequacy, one finds no windows through which the general public is able to input, in a predictable manner into the policy initiatives & decision making of the EAC Secretariat.

The EALA is an equally vital organ with regard to policy and decision making within the EAC.  As the principal “legislative organ” of the Community, its potential for giving effect to the “people-centred”  EAC, is real and considerable.

EALA and the question of representation

If the EALA is to accomplish this, a number of hurdles have to be recognised and addressed.

First, is the circumscribe manner in which the Parliament’s functions are set out in the EAC Treaty, especially in respect of safeguarding Parliament’s autonomy and effectiveness in the context of separation of powers.

Secondly, is the manner in which EALA members are elected, which is not, by direct, popular ballot.

A third, and related constraint, is the ‘representativeness’ of the EALA. The EAC Treaty is quiet clear it seems, to the extent that it does not confine representation in EALA to “various political parties represented  in the [respective National Assemblies of Partner States]”.

Rather, the EAC Treaty calls for inclusion on the basis of “shades of opinion, gender, and other special interest groups” found in Partner States. Not surprisingly, the ‘unrepresentativeness’ (and therefore, legitimacy) of EALA, has already been the subject of one of the petitions filed at the EACJ. 

East African Court of Justice EACJ

Another organ, with the potential of projecting the EAC as a genuinely “people-centred” institution is the EACJ.  As matters stand today, the Court’s Registry is located in Arusha, which means that petitioners and other aggrieved parties are compelled to trek down to this Northern Tanzanian town from wherever within the EAC they are located. The curiosity and resultant difficulties of parties who are both not Tanzanian residents, leaving their respective national territory, to make it to Arusha cannot be overlooked.

Secondly, in a legally and politically controversial (and hastily made) amendment to the EAC Treaty, 1999, the Court not only has assumed a bifurcated structure (First Instance and Court of Appeal), with the immediate and expected cost implications as well stretching the amount of time spent before concluding a case. I was reminded that the entire amendment proceedings lasted no more than 14 days.  No less, intriguing have been the alterations to the ‘hiring and firing’ procedures for judges. 

Following the amendment, the appointment of judges to the EACJ (by a Partner State) has been left entirely to the discretion of the Head of State. Besides the possibility of the arbitrary exercise of power, which in itself is sufficient harm, there is the possibility of disharmony in the procedures leading to appointment, exacerbating further the existing incongruity in the policies and practices in the region.

There is a parallel problem, at least the real potential for that to happen. Not only is the appointment of a judge exposed to the whims of the Executive arm. So too is the judge’s tenure, and for the simple reason that a judge may be suspended for infringements of his respective country’s laws, infringements which have been defined in the most broadest fashion imaginable. If the present framework is left unchecked it is not difficult to foresee a scenario in which (for variety of reasons), the executive appoints a far less senior judge within the national system to the apex of the EACJ. 

A final fall out of this seemingly arbitrariness, disharmony and possible cronism, in the ‘hiring and firing’ system, is to open up the possibility of finding oneself with a ‘weak’ bench. A bench whose occupants lack the qualities to deliver judgements which are unpalatable to sections of the Executive (as was the case in Anyang’ Nyong’o in a bench comprised of JJ Warioba, Ramadhani, Mulenga, Bossa/Alachi), Lekeiwa, and Mulwa) but otherwise, fair and just.

Fourthly, are the continued divergences between Partner States with regard to the remuneration and entitlements for those appointed to the bench. Such a discrepancy, if not checked, could create a situation where judges from Partner States with comparatively more attractive remuneration packages would find it difficult to accept sitting on the bench of the EALA, thus creating difficulties in maintaining a geographically representative EALA bench with all the attendant consequences.

Fifthly, is a pervasive, and an expected (given an earlier discussion on the matter of funding at the EAC) constraint within the EAC – budgetary constraints. The position of the Council of Ministers is that the EACJ’s budget cannot be allowed to increase in any one financial year, by more than 10%.

In the view of a respondent, this possibly would have been justified for an organ which has grown to full strength and has stabilised in terms of needs. Now, that hardly is the case with the EACJ, which began with a skeletal staff of 3 (Registrar, Secretary and Driver) only a couple of years ago, and before reaching ‘maturity’ found itself being transformed into a 2-tier court. 

Sovereignty syndrome

In a remarkable revelation, an EALA member raised the issue of “sovereignty syndrome”, which is reflected in a seemingly consistent pattern of reluctance to acknowledge the EACJ as the principal adjudicatory forum for matters pertaining to the Customs Union and Common Market. Without offering any specific illustrations, he maintained that it was his position that several Partner States have proceeded to vest jurisdiction over EAC Customs Union and EAC Common Market in quasi-judicial national bodies. The conclusion from this he noted, was that Partner States confidence in the EACJ remains questionable. 

To the question:

In your view, is the goal of an East African Political Federation achievable in the next 5 years?

The overwhelming response to this question across all respondents was “No”. 

To the question:

Do you have any recommendations on what should be done to fast track the East African Political Federation?

One respondent  said that he considered this to be an independent and distinct challenge, and concerned that it does not feature as such, neither in EAC official publications, nor in writings by observers of the EAC and integration process in general. 

Without sounding legalistic, it is an imperative duty to commence with the acknowledgement that the EAC is above all else, an intergovernmental organisation, thus coming under the regulation of international law, and its constituent instrument, the Treaty Establishing the East African Community, of 1999, subject to the regulation of both, general International Law and the Law of Treaties, in particular. And it is to this constituent instrument we should seek guidance at all times and more so when at stake is a rather sensitive, far-reaching development, as ‘fasttracking the East African Federation’.

Of all the basic principles of the Law of Treaty none is as fundamental, as the rule imposing the obligation to fulfil one’s treaty obligations in good faith, the pacta sunt servanda rule. Pacta sunt servanda (Latin for "agreements must be kept"), a brocard, is a basic principle of civil law, canon law, and international law. 

Until such time treaty obligations are, through mutual consent and legitimate process, been amended, the duty to unfailingly comply with one’ treaty obligations, subsists.

In the context of the EAC Treaty of 1999, one of the obligations we would isolate as coming under the pacta sunt servanda rule is the provision which spells out how East African integration shall be rolled out. On this, the EAC Treaty is elaborate, repetitive and consistent, and, Article 5 (2) is only one amongst several illustrations. Progression through the ‘institutional stages of economic integration’ which is to say, Customs Union, Common Market, Monetary Union, Political Federation, shall not only be attained in measured steps. That, each progression shall be negotiated, and articulated through the instrumentality of a Protocol. 

When we read EAC documentation on ‘Fast Tracking’, and compare it with the respective EAC Treaty provisions relating to the modus operandi on rolling out integration, we are left in serious doubt whether the two are in harmony. That is also the impression, when we take into account the western European experience with integration. 

To the question: What are the factors that have contributed to slow progress towards an East African Political Federation?

a)   Is it lack of political will?

The majority of respondents answered “Yes”

b)   Is it skepticism for partner states? 

Most respondents answered “Yes”

c)    Is it a shortage of resources?

Respondents were of the view that resources are available but due o lack of political will the EAC members states are not forthcoming with their contributions,

However In the considered opinion of the former Secretary General, the current arrangement in which Partner States, contribute in ‘equal’ amounts is simply untenable, and a major determinant of one (“limited financial resources and budgetary constraints”) of the ten major weaknesses identified in the EAC Development Strategy.

d) Is it political incongruity between partners?

Most respondents agreed that the disparity in levels of democracy in the partner states and the differenced in state structures and political history make cooperation difficult.

According to an EALA legislator interviewed, his time in Arusha and the interaction he has had with other East African at high level, Uganda’s democratic record is despised. The lifting of presidential term limits, the systematic undermining of parliamentary work through the ruling party caucus and now, the sole candidate project of the NRM makes other East African wary of accepting even lofty proposals that originate from Uganda.

He also pointed to Uganda’s turbulent political history, nine presidents since independence none of whom having handed over power to another peacefully- as sticking point in Uganda-and East African relations.

To the question: Is it the Top- Down approach to East African cooperation which does not involve the citizens in decision-making?

Most respondents were convinced that the East African cooperation remains a state – led project in which the local citizens in the member countries have little or no say. 

5.0     CONCLUSION

It is our recommendation, therefore, that if we are genuinely concerned with the seeming tardiness with which the integration process is taking, that in itself cannot serve as a sound basis for ignoring the pacta sunt servanda rule. It would seem to us, the only conventional and legitimate course of action is to amend the Treaty, so as to replace the gradualism and pragmatism engraved in the EAC Treaty of 1999. 

Hypotheses tested

Evidence collected through this research confirms that Without political will a political Federation for East Africa will remain a distant dream. It also affirms that unless scepticism between partner states is managed an East African Political federation will take long to achieve. We also note that unless substantial financial resources are committed by partner states a speedy progress towards political federation to elections is not possible.

On harmonization of electoral laws, we can confirm that unless the legal frameworks relating to elections are harmonized by the partners, a political federation will not be realized in the near future.

On participation in the integration processes, it is undeniable that the citizens of the partner states, unless fully integrated (they are not) in the decision making processes of the East African Community, a political federation will be very difficult to achieve and once achieved it might not be sustainable.

Recommendations

1. Design and implement more robust and elaborate strategies to operationalise the solemn commitment to the notion of a “people-centred” EAC as a strategy in improving popular ownership and sustainability of the integration process and institutions. It would be pertinent for the EAC Treaty to give CSO/CBOs a stature as prominent as that extended to the ‘private sector’. 

2. Enhance the role and significance of the East African Legislative Assembly (EALA) into a genuinely “people-centred” governance institution by reconsidering the manner in which its members are elected. One way of achieving this is through direct ballot (a la European Parliament), but also by remaining faithful to the directive of the EAC Treaty, demanding that the EALA is  a true reflection of the shades of opinion, gender, and other special interest groups found in the Partner States.

3. Revitalise the Inter-University Council for East Africa (IUCEA) and find ways and means of extending its mandate to lower levels of the education system, namely, primary and secondary so as to cultivate, through a shared curriculum, a generation of genuine ‘East Africans’, the bulwark for a thriving EAC. Thus, creating a generation with a truly shared regional vision.

4. Through a consultative process, design a curriculum and oversee the teaching of the course ‘East African Community Law’ in all public funded institutions of higher learning with a mandate to offer the Bachelor of Law degree. Mainstream the teaching of a course on the East African Community (and regional integration), mutatis mutandis, into the entire education system. 

5. Review and revise the present criteria in determining the membership subscription fees away from the ‘equal amounts’ to a more meaningful and realistic formula, including one which tempers the liquidity of the economy, with a percentage collected by a Partner State from intra-regional trade.

6. Accept the vital importance of creating credible, robust, well equipped and independent organs whose work must be facilitated and whose decisions must be unfailingly executed and upheld. Among these, is the Council of Ministers, the EAC Secretariat, EACJ and EALA.

7. Create forums, which is institutionalised and predictable, from the grass-root to regional level, of regular and purposeful consultations between policy makers on the one hand, and other stakeholders, on the other. The launch of a scholarly journal on matters of relevance to the EAC, is highly desirable.  

8. Re-examine the procedures of the implementation of EAC Law provisions within and by Partner States authorities with a view to streamlining the process. In addition, to encourage aggrieved parties to petition before the EACJ regarding infringements related to the EAC Treaty.

9. In combating what is generally referred to as an unequal distribution of benefits within an integrated area such as the EAC ( widely acknowledged as determinant of failure), it may be high time to distinguish between economically highly developed Partner States and those which are less developed. Drawing from the experience of the EU, we may want to instead to identify and isolate “poorly developed regions” wherever they are found within the entire jurisdiction of the EAC.

10. Having done so, create ‘structural funds’ for the benefit of these marginalized areas, with the broad objective of reversing considerable economic and social divergences within the EAC, while also facilitating the enjoyment by these regions, of the benefits regional integration is expected to bring.  

11. Support initiatives and mechanisms, internal to the EAC and without, committed to ensuring that the Partner States remain faithful to their treaty obligation in respect of good governance, democracy, human rights and social justice.         

6.0     REFERENCES

1.    East African Community website www.eac.int, 2015

2.    EAC Facts and Figures, 2014

3.    Makame, A. The East African integration: Achievement and challenges. GREAT Insights, Volume 1, Issue 6. August 2012. Maastricht: ECDPM, 2012

4.    Munyao Sheila Mbeke, Strategies for regional integration: a case study of the East African Community - A research project submitted to the Institute of Diplomacy and International Studies in partial fulfilment of the requirements for the award of Master of Arts International Studies, 2013

5.     African Development Bank. October 2010. Eastern Africa regional integration strategy paper 2011-2015 (Revised Draft for Regional Team Meeting) African Development bank publications.

6.     Ambassador Juma V. Mwapachu. EAC, Past, Present and Future. First Magazine (pp. 10-13) 

7.     Democracy watch, website: www.international democracy watch.org

8.     African community by Korwa G. Adar.

9.    The EAC Development Strategy for 2006-2010

10. Ubwani, 2011,  Why Tanzanians are least enthusiastic about fast tracking EA political federation, http://thecitizen.co.tz/magazines/32-political-platform/9695-why-tanzanians-are-least-enthusiastic-about--federation.html

11. Obua, 2011, What is the way forward for East African Common Market?  http://www.monitor.co.ug/OpEd/Commentary/-/689364/1139554/-/13bfqbpz/-/index.html

12. Kamanga Khoti, EAC Integration: Progress achieved, challenges and opportunities,2013

13. Korwa G. Adar, Policy Brief 4; Fast Tracking East African Political Federation: A View from Uganda, 2008

7.0     APPENDICES  

Appendix I - DATA SOURCES 

Secondary Data: The following literature was reviewed: 

·         East African Community statutes and instruments

·         MEACA (Ministry of East African Cooperation Affairs) documents

·         JEEMA party program (2011-2015)

·         Scholarly articles on East African Unity

·         Surveys on East African Cooperation

·         Reports on East African Community performance

·         Academic Theses (Graduate) on East African Cooperation

Primary Data:

Key Informant Interviews were conducted with:

POLULATION

A  Policy makers

·         Hon. Amanya Mushega, Former Sec General East African Community

·         Hon. Fred Mukasa Mbidde, Member EALA

 ·         Technical Officer, Ministry of East African Community Affairs  (MEACA) Official who requested anonymity

        

B        Policy Implementers

·         Uganda Revenue Authority (URA)  -Official who requested anonymity

·         Department of immigration, Ministry of Internal affairs – Official who requested anonymity

·         C   East African Regional Institutions

·         East African Development Bank (EADB) - a Technical Officer

·         Inter-University Council for East Africa IUCEA)- Corporate and Public Relations Officer

D        Business and Trade organization/beneficiaries

·         Import Export :  Kampala City Traders association, KACITA – Official who requested anonymity

·         Manufacturing:, Uganda Manufacturers Association, UMA -Official who requested anonymity

Appendix II - INTERVIEW GUIDE

FAST TRACKING EAST AFRICAN POLITICAL FEDERATION

KEY INFORMANT INTERVIEW GUIDE

e)   To what extent have the objectives of East African Community been achieved?

f)     In your view, is fast tracking the East African political federation a good idea?

g)    What are the factors that have contributed to slow progress towards an East African Political Federation?

h)   Is it lack of political will?

i)     Is it skepticism for partner states?

j)    Is it a shortage of resources?

k)    Is it political incongruity between partners?

l)     Is it the Top- Down approach to East African cooperation which does not involve the citizens in decision making?

m)  In your view, what else?

n)   What role should non-political actors play in the East African community?

o)   Business Community

p)   Academia

q)   Civil Society

r)    In your view, is the goal of an East African Political Federation achievable in the next 5 years?

s)    Do you have any recommendations on what should be done to fast track the East African Political Federation?

Thank you very much for your most valuable time!!!