Wakilii

Ayieko and Another v Attorney General of Republic of Kenya and Another (Reference No. 5 of 2019)

East African Court of Justice · [2022] EACJ 38 · 2022 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Reference filed under Treaty provisions challenging Partner State's bilateral trade negotiations with third party without Community involvement
Decision
Reference granted; proposed Free Trade Agreement and MOU declared illegal, null and void; both Respondents found to have violated Treaty obligations

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court held that Kenya violated Treaty provisions by negotiating a bilateral Free Trade Agreement with the USA and adopting a Wheat Grain Certification MOU without notifying or involving other EAC Partner States as required by Article 37 of the Customs Union and Common Market Protocols. The Court declared both the proposed FTA and the MOU illegal, null and void. The Secretary General was found to have abdicated his Treaty obligations by failing to follow up on Kenya's non-compliance.

Outcome

Reference granted; proposed Free Trade Agreement and MOU declared illegal, null and void; both Respondents found to have violated Treaty obligations

Facts

Kenya announced its intention to negotiate a bilateral Free Trade Agreement with the USA on 6 February 2020 and launched negotiations on 8 July 2020. Kenya also adopted a Phytosanitary Protocol/MOU on Wheat Grain Certification with the USA. These actions were taken without notifying or involving other EAC Partner States. The Secretary General wrote to Kenya on 26 February 2020 seeking clarification but received no response. The Applicants, Kenyan advocates, filed this Reference challenging Kenya's actions as violations of Treaty obligations requiring Partner States to coordinate trade relations with third parties and notify proposed agreements through the Secretary General.

Issues

  1. Whether the Reference is admissible given the alleged premature invocation of the Court's jurisdiction.
  2. Whether the 1st Respondent's intention to negotiate a Free Trade Agreement with the USA without involving other EAC Partner States violated Treaty provisions and Protocols.
  3. What constitutes a 'proposed agreement' requiring notification to EAC Partner States under Article 37(4)(b) of the Customs Union Protocol.
  4. Whether the 1st Respondent's adoption of a Phytosanitary Protocol on Wheat Grain Certification with the USA without involving other Partner States violated Treaty provisions.
  5. Whether the Phytosanitary Protocol/MOU is a trade agreement within the meaning of Article 37(4) of the Customs Union Protocol.
  6. Whether the EAC Sanitary and Phytosanitary Protocol adopted in 2012 is fully operational.
  7. Whether the 2nd Respondent abdicated his obligations under the Treaty and Common Market Protocol.
  8. Whether the Applicants are entitled to the remedies sought.

Orders

  • The 1st Respondent's acts of negotiating a Free Trade Agreement with the USA violated Articles 6(d), 6(f) and 7(2) of the Treaty.
  • The 1st Respondent's adoption of the MOU on Wheat Grain Certification violated fundamental Treaty principles.
  • The 1st Respondent's actions violated Article 37 of the Common Market Protocol and Article 37 of the Customs Union Protocol.
  • The proposed Free Trade Agreement between Kenya and the USA is declared illegal, null and void.
  • The adopted MOU on Wheat Grain Certification with the USA is declared illegal, null and void.
  • The 2nd Respondent's inaction infringed Treaty provisions on good governance, rule of law and transparency.
  • Costs of the Reference to be borne by the Respondents in equal proportion.

Rules and key headnotes

Regional Integration — Treaty Obligations — Notification Requirements
Where a Partner State to a regional economic community treaty intends to conclude a trade agreement with a foreign country, the Partner State must notify other Partner States through the Secretary General and provide them opportunity for input before proceeding, even where negotiations are at an exploratory stage.
Treaty Interpretation — Ordinary Meaning — 'Proposed Agreement'
Under Article 37(4)(b) of the Customs Union Protocol, a 'proposed agreement' includes all negotiation documents including negotiation principles, objectives and indication of provisions to be addressed, not merely a concluded or draft agreement. The term 'intend' denotes plan or purpose, and once intention is established, the Partner State must forthwith submit the proposed agreement to other Partner States.
Regional Integration — Memoranda of Understanding — Classification as Trade Agreements
A Memorandum of Understanding between a Partner State and a foreign country that provides for importation of goods, has a commencement date and defined duration, and is duly executed in writing, constitutes a trade agreement within the meaning of Article 37 of the Customs Union Protocol and a treaty under the Vienna Convention on the Law of Treaties.
Regional Integration — Secretary General — Duty to Act
Where a Secretary General of a regional community learns of a Partner State's potential Treaty violation, writes seeking clarification, receives no response, and takes no further action for several months including after litigation is commenced, the Secretary General has abdicated his Treaty obligations to investigate, verify matters, and escalate non-compliance to the Council.
Jurisdiction — Premature Invocation — Cause of Action
A court with jurisdiction to interpret and apply a treaty has jurisdiction to entertain a reference once an allegation of Treaty infraction is made, regardless of whether negotiations are at an exploratory stage. The court need only establish a legal nexus between the applicant's allegations and positive Treaty provisions imposing obligations on Partner States. The veracity of allegations is determined on the merits, not at the jurisdictional stage.
Regional Integration — Pacta Sunt Servanda — Good Faith Performance
A Partner State to a regional treaty must perform its obligations in good faith and refrain from acts calculated to prevent due execution of the treaty or frustrate its objects. Undertakings with third parties that undermine Community objectives such as planned reduction of tariffs, which is a preserve of Community Protocols, frustrate Treaty objects and violate the principle of pacta sunt servanda.

Legislation cited (5)

  • Treaty for the Establishment of the East African Community Articles 5, 6, 7, 8, 27(1), 29, 30, 38, 71, 75(7), 76(2), 76(4), 104, 105, 108, 110, 130, 151
  • Protocol on the Establishment of East African Customs Union Article 37, 38
  • Protocol on the Establishment of East African Common Market Article 5(3), 37
  • East African Court of Justice Rules 2019 Rules 4, 25(1), (2), (3), 127
  • Vienna Convention on the Law of Treaties 1969 Articles 2, 31

Cases cited (4)

  • Manariyo Desire v Attorney General of Burundi [2015-2017] EACJLR 992
  • African Network for Animal Welfare v Attorney General of the United Republic of Tanzania (Reference No. 9 of 2010)
  • East African Law Society v Secretary General of the East African Community (Reference No. 7 of 2014)
  • James Katabazi and 21 Others v Secretary General of the East African Community and Another (Reference No. 1 of 2007)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Ayieko and Another v Attorney General of Republic of Kenya and Another (Reference No. 5 of 2019) [2022] EACJ 38 (2 December 2022)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.