EAC Treaty Reforms: Public Voice and Legal Scrutiny

A treaty may be amended by governments, but the people-centred character of East African integration does not disappear when leaders alter the rules of the Community. In East African Law Society v Attorney General of Kenya, the East African Court of Justice held that public participation was required in the Treaty amendment process and that one amendment breached the Treaty’s protection of pending disputes. It nevertheless left the amendments in force, applying its clarification prospectively. That combination of constitutional principle and restrained remedy is the case’s lasting lesson.

Contents

Why the 2006 amendments became a regional dispute

The legal questions and the Court’s answers

Public participation, good faith and the evidence

Why the remedy stopped short of invalidation

The rule for later Treaty and national-law disputes

Why the 2006 amendments became a regional dispute

The five applicants were the East African Law Society and the law societies of Kenya, Tanzania, Uganda and Zanzibar. After the Summit of the three then Partner States adopted Treaty amendments in December 2006, the applicants challenged the process before the EACJ. The package reorganised the Court into First Instance and Appellate Divisions, changed provisions on judicial removal, and adjusted the Court’s jurisdiction and procedure. The immediate political context mattered: the amendments followed an interim order in Professor Peter Anyang’ Nyong’o and Others v Attorney General of Kenya, which had questioned the legality of Kenya’s EALA representatives. The applicants argued that Treaty amendment was being used to respond to litigation and that the process had excluded East Africans. (East African Law Society, Reference No. 3 of 2007, judgment, background and pleadings.)

The reference was decided on 31 August 2008 by Vice-President Mulenga, Justice Kasanga Mulwa and Justice Mary Stella Arach-Amoko. The reported citation is East African Law Society and 4 Others v Attorney General of Kenya and 3 Others, EACJ Reference No. 3 of 2007, [2005–2011] EACJLR 68. The judgment was unanimous; it contains no dissenting opinion. The Court was not asked to decide whether every policy choice in the amendments was wise. Its central task was narrower: could residents and civil-society bodies challenge the manner in which Partner States amended the Treaty, and did the amendment process and its apparent response to pending litigation comply with the Treaty?

The legal questions and the Court’s answers

The first important question was whether the reference was justiciable under Article 30, given that treaty-making is ordinarily a sovereign act of states. The Court held that the applicants were not claiming an inherent right to control foreign relations. They relied on a right expressly granted by the EAC Treaty to residents of Partner States to challenge the legality of a Partner State’s or Community institution’s act, decision or action. By accepting Article 150’s amendment procedure, the states had undertaken to follow that procedure. The Court could therefore test compliance without denying the states’ power to amend their treaty. Article 30 was deliberately people-facing: it enabled East Africans to help protect the integrity of the Treaty. (EAC Treaty, arts 23, 30 and 150; East African Law Society, Reference No. 3 of 2007.)

The Court’s next answer concerned participation. Article 150 set out formal steps for treaty amendment, but did not spell out the form or minimum extent of public consultation. Reading the Treaty as a whole, the Court held that excluding the people from this amendment process was inconsistent with the Treaty’s spirit and specifically infringed Articles 5(3)(g) and 7(1)(a), which require the Community to respect democracy and the rule of law and to act through people-centred cooperation. The decision did not prescribe a single consultation model or hold that each citizen had a veto. It made participation a legal requirement whose practical form would depend on the circumstances.

The Court also found that the purpose for which Article 26 had been amended infringed Article 38(2). That provision requires Partner States to refrain from action that may prejudice resolution of a dispute referred to the Council or Court. In context, the new judicial-removal provisions were connected to the response to the Court’s order in the Anyang’ Nyong’o litigation. The Court did not, however, find that the entire package had been proved to be a bad-faith conspiracy. It treated bad faith as a serious allegation requiring clear, compelling evidence and found the evidence insufficient to establish collusion by all three states. These are distinct holdings: an infringement of Article 38(2) could be found from the purpose and effect of the Article 26 change, while the broader charge of bad faith still failed on proof.

Nor did the Court decide every procedural allegation. Several pleaded assertions about the details of Article 150’s notice, proposal, comment and ratification stages were not pursued with evidence or argument and were treated as abandoned. The Court also made no finding on whether the amendments would strengthen the Community because the submissions were speculative and that question was outside the properly pleaded legality dispute. The difference between what was pleaded, what was proved and what was abandoned is essential to reading the judgment accurately.

Public participation, good faith and the evidence

The rule of law from the case is that a Partner State’s power to amend the EAC Treaty remains subject to the Treaty’s own requirements, including democratic and people-centred principles. A resident may invoke Article 30 to challenge an alleged Treaty infringement even where the measure is part of a joint institutional process. Where a dispute is already before the EACJ, Article 38(2) bars steps that prejudice its resolution. A claim that states acted in bad faith must be supported by cogent evidence, not merely suspicion about timing or motive.

The advocacy record shows both why the applicants won and why they did not obtain everything they wanted. Professor Fredrick Ssempebwa led for the applicants, assisted by Alex Mgongolwa and Donald Deya. They connected the amendment timetable to the Treaty’s people-centred provisions, used the chronology surrounding the Anyang’ Nyong’o order and focused argument on provisions that could be linked to the pending dispute. That allowed the Court to decide a concrete legal issue rather than defer to a general appeal to sovereignty. The respondents’ lawyers, including Wilbert Kaahwa, Anthony Ombwayo, Henry Oluka and Joseph Ndunguru, defended the states’ authority to amend the Treaty and emphasised the difficulty of proving state bad faith. That evidential point succeeded in defeating the broader collusion allegation.

The applicants’ own case also demonstrates the cost of loose pleading. The judgment records that some allegations were not canvassed and had no supporting evidence; the corresponding ratification relief was therefore abandoned. A stronger case would have tied each alleged defect to a particular subparagraph of Article 150, supplied primary records showing dates and communications, identified who had knowledge of the decision-making, and explained the remedy sought for each defect. Advocacy can persuade a court to recognise a principle, but a court cannot make findings on every allegation simply because it appears in the initiating document.

Why the remedy stopped short of invalidation

The Court declined to invalidate the amendments. It reasoned that the Treaty did not expressly state the participation requirement in Article 150; the Court had clarified the requirement by reading several provisions together; the failure was not shown to have been deliberate; and the clarification was unlikely to be ignored in future. It therefore used prospective annulment: the amendments remained operative, while the requirement of public involvement applied to future amendment processes. This was a pragmatic remedy, but also a contested one. It reduced disruption to the Community while leaving the applicants with a declaration that exposed a constitutional defect without undoing it.

For East Africans, prospective application is not permission to repeat the same process. It means that future amendment proposals should have a transparent record: publication of the proposed text, a realistic opportunity for public and civil-society submissions, a reasoned account of how views were considered, and a clear record of the Article 150 steps. The exact format is open, but silence or a last-minute announcement invites litigation. A claimant seeking invalidation should explain why a declaration alone would not protect the Treaty and why the disruption of retrospective relief is justified.

How later public-participation cases sharpen the principle

The judgment is especially useful when read beside later national decisions, but those decisions should be used as comparisons rather than treated as authorities that controlled the EACJ in 2008. Kenya’s Supreme Court in British American Tobacco Kenya PLC v Cabinet Secretary for the Ministry of Health, Petition No. 5 of 2017, [2019] KESC 15, explained that public participation is a constitutional value binding State organs when they make or implement law and policy. The Court also made clear that the requirement is practical and context-sensitive: the question is whether the public had a meaningful opportunity to influence the process, not whether every person attended or agreed. That later Kenyan formulation helps make the EACJ’s broad Treaty principle concrete, while remaining a national constitutional rule.

Uganda provides a different but related comparison. Article 38 of the Constitution protects a citizen’s right to participate in the affairs of government, individually or through representatives, and to participate in peaceful civic activity. Article 29 protects expression and association, which are often necessary for people to make their views known. The East African Law Society judgment did not say that these national provisions were identical or that they controlled a regional Treaty amendment. Its reasoning instead leaves room for each Partner State’s constitutional order to contribute to meaningful engagement while the Treaty imposes a common floor for the Community itself.

Tanzania’s Constitution protects the freedom to express opinions and to seek, receive and disseminate information under Article 18. That protection can support public access to a proposed amendment and debate about its consequences. It is not worded as a direct public-participation clause in the same way as Kenya’s Article 10. The comparison is valuable because it warns against assuming that all national constitutions use the same language. For an EAC amendment, the common legal question is whether the Treaty’s people-centred principle was respected; domestic guarantees may inform the process but do not replace that regional inquiry.

Later EACJ decisions have also preserved the basic route established here. In East African Law Society v Attorney General of Uganda, Reference No. 2 of 2011, the Court again treated the Society as a legal person capable of bringing an Article 30 reference. In its Court Manual, the EACJ continues to cite Reference No. 3 of 2007 for the distinction between a Treaty complaint within the Court’s jurisdiction and a question of national law better addressed by national courts. The practical point is that regional litigation should identify a Treaty breach and use domestic law as context or parallel grounds, not assume that the EACJ can act as a general constitutional court for each Partner State.

The case also draws a useful boundary around the word “constitutional”. The EAC Treaty is not a national constitution, but it has constitutional features for the Community: it creates institutions, allocates powers, protects integration principles and establishes judicial review. Calling the judgment constitutionally important is therefore persuasive shorthand, not a claim that the EACJ struck down a Partner State constitution. It interpreted the Community’s founding legal instrument and required its political actors to respect both its procedures and its values.

The rule for later Treaty and national-law disputes

The Treaty has since been amended, and the current EAC text remains the controlling regional instrument. The judgment remains useful because it addresses how that instrument may be changed, not because it freezes the text as it stood in 2006. In national law, the comparison is instructive but must not be confused with the holding. Kenya’s 2010 Constitution expressly makes public participation a national value in Article 10 and requires Parliament to facilitate public involvement under Article 118. Uganda’s Constitution protects citizens’ right to participate in government affairs under Article 38 and civic activity under Article 38(2). Tanzania’s Constitution protects expression and access to information in Article 18, which can support public engagement but is not textually identical to Kenya’s public-participation clause. These provisions may help domestic litigants assess a national process; the EACJ’s 2008 rule arose from the EAC Treaty itself.

The case fits the earlier Anyang’ Nyong’o litigation because that election dispute supplied the setting for the amendment and the Article 38(2) issue. It also sits alongside later EACJ decisions that use Articles 6(d), 7 and 8 to review Partner State conduct against the rule of law and good governance. There is no dissenting judgment to interpret; the panel’s unanimity gives the judgment one set of reasons, though readers may still debate whether prospective relief was sufficiently effective. The practical lesson for governments is simple: treaty authority does not excuse a closed process. For lawyers, the lesson is equally concrete: plead the precise Treaty step, support motive allegations with admissible evidence, and match each requested remedy to the particular breach.

The amendment procedure and the remedy’s unresolved tension

Article 150 provides the formal route for amendment: a proposal may come from a Partner State or the Council, must be communicated to the Partner States, and must pass through the Treaty’s consultation, comment and ratification stages. It is a state-to-state procedure, not a referendum clause. The applicants’ central procedural criticism was that leaders had moved rapidly and had not given the public a chance to engage. The Court’s approach was significant because it did not rewrite Article 150 or require an identical referendum in every state. It treated Articles 5 and 7 as principles that guide how the formal route must be used. In effect, the procedure had a democratic dimension even where its text did not specify a precise public consultation method.

That interpretation creates a difficult but productive question for future amendment drafters: what is enough participation? The 2008 judgment did not answer by prescribing a minimum number of days, public meetings or written submissions. A court applying it today should look at whether the proposed change was intelligible and available, whether the public could respond before adoption, whether groups likely to be affected had a realistic opportunity to participate, and whether the decision-makers considered the responses. Consultation after the political decision has effectively been made may be notice, but it is not necessarily participation.

The remedy’s prospective effect can be defended as legal caution in a new regional constitutional order. Treaty amendments had been ratified and were already functioning; setting them aside could have destabilised the Court and the Community. It can also be criticised because the applicants proved a Treaty violation but did not obtain restoration of the pre-amendment position. The judgment’s value is therefore partly procedural and partly institutional: the Court asserted a standard while avoiding a remedy that might have disabled the institution whose independence was at stake. Future litigants should address that tension directly by explaining how a court can give effective relief without creating greater harm to the Community.

A note on precedent and judicial disagreement

The phrase “persuasive constitutional value” describes how lawyers may use the case; it does not mean that the EACJ’s First Instance ruling binds national courts on every question of public participation. Within the EACJ system, the judgment is an important interpretation of the Treaty, subject to the Court’s later decisions and Treaty amendments. Before relying on it, counsel should identify the exact proposition: Article 30 access, participation under Articles 5 and 7, or restraint under Article 38(2). Those propositions have different facts and different evidential demands.

The judgment records no dissent. Its three judges agreed on the findings and remedy, but unanimity should not obscure the fact that the Court deliberately left some legal uncertainty for future cases. It did not specify the process required, and it did not annul the amendments. The practical interpretation for present-day governments is therefore not “any consultation is enough”; it is that public involvement is a Treaty requirement and that the state should be able to demonstrate, with a contemporaneous record, that the process was genuine.

Source note

This original analysis is based on the EACJ’s judgment in Reference No. 3 of 2007, the Treaty for the Establishment of the East African Community as amended, and the cited Kenyan, Ugandan and Tanzanian constitutional provisions. It is a case analysis for public legal education, not legal advice.

Suggested citation

Ronald Serwanga, “EAC Treaty Reforms: Public Voice and Legal Scrutiny,” East Africa Legal Insight (10 October 2026).