In­te­gra­tion: Cre­ate mech­a­nism to ad­dress non-ju­di­cial dis­putes

Nairobi Law Monthly - - Analysis -

So­cial in­te­gra­tion within the EAC is un­avoid­able, but with it come non ju­di­cial/ po­lit­i­cal pit­falls that the EAC Court can­not re­solve

Afew years ago, I at­tended East African Com­mu­nity meet­ings, hosted by the EAC Sec­re­tariat as part of the Kenya del­e­ga­tion. One meet­ing sought to de­velop an ac­tion plan for pre­vent­ing and com­bat­ing cor­rup­tion while the other was spe­cial­ists from mem­ber coun­tries to de­velop a draft pro­to­col on good gov­er­nance.

Dur­ing th­ese meet­ings, par­tic­i­pants lamented on the slow pace of progress, es­pe­cially con­sid­er­ing the sub­jects of dis­cus­sion – anti-cor­rup­tion and good gov­er­nance – were is­sues that or­di­nar­ily one would not ex­pect toil in find­ing points of con­ver­gence. It took us, for ex­am­ple, half a day to come up with a def­i­ni­tion of good gov­er­nance which was still not sat­is­fac­tory to some mem­ber states.

Dur­ing one of the breaks, I called aside the Head of Del­e­ga­tion of one of the mem­ber states for a tete a tete. I had per­ceived that the bot­tle­necks in the de­bates had noth­ing to do with the dis­cus­sions but were in­formed by other cir­cum­stances be­yond the for­mal en­gage­ments. True to my sus­pi­cion, I was given a can­did and in­ter­est­ing nar­ra­tive on why this par­tic­u­lar Mem­ber State was hes­i­tant to have the EAC dream re­alised faster.

The rea­sons were a cocktail of real to os­ten­si­ble cir­cum­stances. Some were based on bi­ased opinions formed from stereo­types, in­cor­rect in­for­ma­tion that could not be ver­i­fied or lessons learnt from pre­vi­ous en­gage­ments be­tween mem­ber coun­tries in their in­di­vid­ual ca­pac­i­ties. Some, how­ever, were real cir­cum­stances con­tain­ing truths that caused, per­haps rightly so, some un­ease. None­the­less, it was fac­tual that there were un­der­ly­ing fears and/or is­sues that threat­ened the whole idea of an EAC in­te­gra­tion. It was due to th­ese fears that this par­tic­u­lar mem­ber country viewed the in­te­gra­tion with scep­ti­cism and thus brought up blockages at ev­ery turn to build up to the in­tended ob­jec­tive of slow­ing down the in­te­gra­tion process.

The les­son here was that whether the qualms were jus­ti­fied or not, whether they were based on tru­ism or per­cep­tion, they had the real po­ten­tial of nix­ing the EAC dream. They there­fore were is­sues that some­how had to be brought to the fore and dealt with be­fore they meta­mor­phosed into a can of worms that would turn dif­fi­cult to han­dle. As I thought about it, it dawned on me that there was no body or in­sti­tu­tion that had been es­tab­lished by the EAC to deal with such is­sues.

The truth is, such mat­ters, even if based on per­cep­tions or bi­ased opinions, have the po­ten­tial of slow­ing down the eco­nomic and so­cial in­te­gra­tion of the East African Com­mu­nity or bring­ing it to a screech­ing halt. The ques­tion we should ask our­selves is, can such is­sues be mat­ters that a State can freely dis­cuss and lay their fears bare for all and sundry? And if so, are they mat­ters that can be the ba­sis of a dis­pute that would then be within the

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