ADAR Korwa G

March 27, 2018 | Author: nck1983 | Category: Social Institutions, Society, Political Science, Politics, Forms Of Government


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Federalism and East African Community Integration Process: The Role of the East African Legislative Assembly x KorwaG. Adar: Africa Institute of South Africa, Pretoria [email protected] [email protected] (Draft. Not for Citation and circulation in the web) Paper prepared for presentation at CIGI/GARNET conference on: Mapping Integration and Regionalism in a Global World: the EU and Regional Governance outside EU, 17-20 September 2008, Bordeaux, France Abstract This study proceeds from the premise that the success of federalism project in East Africa and its envisaged durability must be people and institution-driven. Specifically, the treaty should confer direct electoral sovereign responsibilities on the East Africans, which by extension would empower the East African legislators with rights and duties to drive federalism in the reign. To put it differently, ownership of federalism through the recognition of sovereign rights of the East Africans is an important ingredient for the success and durability of the East African Community (EAC). I argue that it is only through direct elections of the East African Legislative Assembly (EALA) representatives that the interests of the people of East Africa would be directly linked to the short-and long-term projects of the EAC, including federalism. Due to its legislative and statutory limitations, the EALA, as it is incorporated in the 1999 treaty, cannot be directly held accountable to the project of federalism. In fact, there is no single organ in the EAC treaty, which is directly responsible for the project, let alone integration in general. Background: The Revival of the EAC The intra-state as well as intra-EAC econo-political centripetal and centrifugal forces that led to the collapse of the EAC in 1977 lingered on in the minds of the leaders for most part of the 1980s and 1990s. The differences were centred on structural and systemic factors. Even though the treaty establishing the first EAC was concluded in 1967 the three partner states had followed different ideological paths in early 1960s. The Kenya Session Paper No. 10 of 1965 on African Socialism and Its Application in Kenya, though incorporated socialist prescriptions laid the foundation for an open liberal and 1 paved the way for a rapprochement between the countries. Museveni (Uganda). which thereafter came into force after its ratification in 2000. centralisation of power within the EAC Authority. Uganda under Milton Obote embraced a middle ground Common Man’s Charter. It laid the foundation for cooperation in the region. followed with the signing of the Treaty in 1999. 6). tangibly paved the way for the signing of the agreement for the Establishment of a Permanent Tripartite Commission (PTC) for East African Cooperation in 1993. and Kenya’s economic dominance. lack of political will. was established in 1996. for example. the East-West bipolar system. The EAC Secretariat. ushered in a new era and political environment in the region that had been plagued by “a lot of bad blood between the Partner States” following the demise of the EAC in 1977 (Mushega 2006. This official rendezvous by the East African leaders.mixed economy. Zimbabwe. the stage for the revival of the EAC was not set until during the Commonwealth of Heads of States meeting in Harare. The Mediation Agreement signed in 1984 by the Partner States to apportion the assets of the EAC following its collapse in 1977. change of leadership in the region in the 1980s and 1990s brought new style of governance and perceptions of regional integration with positive repercussions. which gave the three leaders an opportunity to discuss the future of the Community. Yoweri K.1 These structural and systemic centrifigal and centripetal factors notwithstanding. Nyerere and President Idi Amin Dada of Uganda. The vision and mission of the revitalised EAC clearly 2 . The other central issues that led to the demise of the EAC included. and Benjamin W. paving the way for the establishment of the structures and functions of the EAC. Mkapa (Tanzania). particularly the leaders. However. While Tanzania’s Arusha Declaration ushered in a socialist era. for example. personality differences between Tanzania’s President Julius K. The initiative by President Daniel arap Moi (Kenya). as the driving engine for the country’s econo-political development. Whereas the vision of the EAC aims at establishing “a prosperous. election of members of the EALA and the related functions. The special focus of the development strategy is the amendment of the treaty. competitive. removal of a number of non-tariff barriers. establishment of the EALA. harmonisation and development of East African standards.capture the new spirit of cooperation between the Partner States. composition of the EALA.cultural and economic – political dimensions of the EAC. it is designed to address issues such as: definition of the EAC as a feature of International Law. decision-making process within the EAC. For example. Federalism: A Theoretical and Conceptual Framework in the Context of the EAC 3 . The major achievements of the EAC development strategy following its ratification in 2000 include. and jurisdiction of the East African Court of Justice (EACJ). The third EAC Development Strategy 2006 – 2010 has witnessed the admission of Burundi and Rwanda in 2006 as full members of the community (Mushega 2006:19). separation of powers of the organs of the EAC. for example. its mission is to “widen and deepen economic political. the establishment and operationalisation of the Customs Union in 2005. secure and politically united East Africa”. and the establishment of the EA Court of Justice. among others (EAC Secretariat 2007a. timetable for achievement of objectives. The admission of Burundi and Rwanda has enlarged the socio. value added production trade and investment” (Mushega 2006. social and cultural integration in order to improve the quality of life of the people of East Africa through increased competitiveness. 7). 3-23). particularly the provisions that deal with the definition of the Community. partner states’ commitment to the treaty. establishment of the Lake Victoria Basin Commission (LVBC). In many respects. the region has from time to time. land. Specifically. Nyerere-Tanganyika and Milton Obote-Uganda) reiterated. disagreements in the 1970s to 1980s between the leaders on issues such as federal vis-à-vis the states. this mixture of organic – 4 . no date. From a philosophical point of view. In the context of the EAC. buried the political federation ambition. there are elements of federalism within and between constituent units. There is throughout East Africa a great urge for unity and an appreciation of the significance of federation” (EAC Secretariat. Julius K. Whereas federalism within the constituent units refers to joint exercise of constitutional prerogatives. federalism is normative and generally refers to a specific system in which two levels of government with juridical responsibilities are clearly prescribed in the constitution. However. The idea of political federation in the post independence East Africa region is not new. that: “we believe a political federation of East Africa is desirable by our people. It is designed to achieve specific socioeconomic and political objectives and to manage diverse as well as potential conflict with power devolving within and between its constituent units where individual sovereign rights are constitutionally recognised and preserved. and citizenship. President Nyerere was even prepared to delay Tanganyika’s (later. In June 1963.This section examines the conceptual and theoretical dispositions of federalism with special reference to the EAC. and Tanganyika to unite through political federation. Uganda. It is associated with a constitutional arrangement that “permits action by a shared government for certain common purposes. the leaders of the East African region (Jomo Kenyatta-Kenya. 6 and Watts 1998). together with autonomous action by constituent units of government for purposes that relate to maintaining their distinctiveness. Tanzania) independence if that would enable Kenya. 3031). with each level directly responsible to its own electorate” (Watts 1996. exhibited eclectic pressures for integration and disintegration processes. among other things. federalism between presupposes independent functional responsibilities. limiting or checking the powers of government. Federalism and the Role of the EALA Law-making legislative duties. are critical. would be empowered by East Africans through electoral process 5 .and creating tiers of government. if properly constituted. protecting the independence of a group of states. linking local units of self-rule to a central authority. 20 – 21). Third. Transformation and solution of societal socio-economic and political issue areas are at the centre of the objectives of federalism. First. It aims at building unity of a divided society through constitutional or treaty arrangements (Duchacek 1970). Federalism. and enhancing democracy of individual and group rights” (Nyirabu 2007: 7). as a political solution it acts as a tool for “integrating previously independent states. and responsibilities of any legally constituted legislature. Secondly. transforming a diverse society/region into a single large economic market guided by clearly defined treaty or constitution (Osaghae 1997).corporative and diverse elements in federalism means recognition of diversity. enhancing administrative and political efficiency.. it is a tool for economic development that is. as one scholar has argued... by dividing the state against itself” (Whitaker 1983. religious.. one of the objectives of federalism is bringing together a society which is territorially defined on ethnic. and thus reducing the dangers of majoritarianism…limiting the dangers of government oppressing the people. linguistic and racial cleavages. In this context federalism is better placed to provide a moderating act for preferences of citizens in the component units (King 1982 and Nyirabu 2007).. is a “means of dividing the people against itself. These functional powers and responsibilities are derivatory in the sense that the EALA. while at the same time transforming the region into a single entity. the EALA included. particularly because of the intended durability and legitimacy. the speakers of the National Assemblies of Kenya. Similarly. Article 7 6 . The establishment of a Sectoral Committee and other mechanisms that would promote social interaction of East Africans and the Community.to exercise its duties inscribed in the EAC treaty. It is this perceived linkage between the people of East Africa and the EALA. 39):     The promotion of social activities such as sports and culture in East Africa. which. Doc. The development of human resources. Yet. prior to the adoption of the EAC treaty. in my view. Article 5 paragraph 3(d) stipulates that one of the objectives of the EAC is to strengthen and consolidate the long standing socio-cultural and econopolitical and traditional linkages “between the peoples of the Partner States so as to promote a people-centred mutual development”. this cardinal and natural sovereign right of the citizens in East Africa is not clearly provided for in the EAC Treaty. They recommended that the treaty should incorporate this people-centred vision of the Community through the following (EAC Secretariat. the East Africans are not directly involved either through a referendum or in any other way in the 1999 treaty that established the EAC. the nexus between the peoples of East Africa and the Community. Ref: EAC/C13/02/99 2003. Tanzania and Uganda emphasised the importance of inscribing in the treaty. legitimises the idea of federalism and its enduring normative principles that the EAC treaty is expected to establish in the region. These suggestions were incorporated at variance in various sections of the treaty. In one of their consultative meetings in 1999. As was in the case of the 1967 Treaty Establishing the East African Community. and The establishment of research institutions that promote the role of civil society in the region. These responsibilities as well as decision-making powers conferred on the Summit and the Council also seem to usurp the powers of the EALA (Oloo 2005. As I have explained. Whereas paragraph 6 of Article 123 empowers the Summit to “initiate the process towards the establishment of a political federation of the partner states by directing the Council to undertake the process”. However. The role of the EALA in driving the project of federalism is critical and in many respects should be one of the basic functions of the EALA. 6-7). for example. paragraph 6. Article 14(3)(b) also empowers the Council to “initiate and submit bills to the Assembly” (EAC Secretariat 2002. among other responsibilities. Specifically. rendered nugatory in many respects by the functions of the Summit and the Council. it is this linkage between the people of East 7 . The missing link becomes clearer when the legislative powers of the EALA and representation thereof are examined in relation to the sovereign rights of East Africans inherent in the principle of universal adult suffrage. there is no clear linkage between the peoples of East Africa and decision-making process within the EAC. 86 and EAC Secretariat 2007b. The independence and the operational functions of the EALA and the Assembly’s linkage with the people of East Africa are critical for the survival of the EAC. makes reference to legislative powers conferred on the Summit and the Council. Article 11. the doctrine of separation of powers is not clearly delineated in the EAC treaty. However.paragraph 1(a) provides for a “people-centred and market-driven cooperation” as one of the key operational principles of the EAC (EAC Secretariat 2002: Articles 5(3) (d) and 7(1) (a)). the legislative powers of the EALA are. debating and approving budgets as well as recommending to the Council of Ministers any other EAC related matter. The legislative powers conferred on the EALA by Article 49 of the treaty include. in my view. Articles 11(6) and 14 (3)(b). 84 and Wanyande 2005. particularly the EALA (Oloo 2005. 66-68). paragraphs 7 provides that the “Summit may order a study to be first undertaken by the Council” (EAC Secretariat 2002. Articles 123 (6 and &7). In fact. paragraph 1. the Kalonzo Musyoka’s (who has since January 2008 been appointed Vice-President by Mwai Kibaki) splinter party. This process confers powers on the political parties to decide on behalf of the East Africans on the EALA representatives. This cardinal responsibility is to be exercised through mobilisation of East Africans as well as providing leadership and direction with the aim of fulfilling the objectives of the EAC (EAC Secretariat 2004a. the EALA conceptualises its role as the EAC organ established to act as a bridge between the people of East Africa and regional integration process. Election of the EALA representatives and the process itself has a number of far reaching interrelated short-term and long-term ramifications on the intended integration process. which gives the Assembly its derivative legitimacy as well as the EAC’s raison d’être and long-term survival. The practice of nominating candidates by political parties and thereafter elected by the National Assemblies is inherently flawed. The electoral debacle in Kenya witnessed during the nomination of some of the representatives of the Raila Amolo Odinga led-Orange Democratic Movement (ODM). Article 50(1)). empowers the National Assembly of the Partner States to elect nine representatives “in accordance with such procedures as the National Assembly of each Partner State may determine” (EAC Secretariat 2002. However. 13). What role can the EALA play under these questionable institutional. of the EAC treaty. the mode of conducting elections of the members of the EALA puts into question the direct linkage between the people of East Africa and the Assembly.Africa and the EALA. ODM-Kenya. First. and the Mwai Kibaki led-Party of National Unity (PNU) as well the outcome of the 27 8 . particularly with respect to federalism? Article 50. What is important to reiterate is that political parties in the region are still inchoate and are grappling with their own internal democratic electoral processes. structural and operational functions. direct elections of the EALA representatives through the application of the principle of universal adult suffrage should be inscribed in the treaty as the central modus operandi in the region. Direct elections and size of population should be the guiding principles used in determining representation in the EALA instead of national representation and indirect elections as prescribed in the treaty. which empowers political parties to be at the centre of electing EALA representatives. Eze 2004 and Salih 2004). This clause empowers the National Assemblies of the Community. and not the people of East Africa. the interests of the EAC. Second.December 2007 general elections reinforce the need for the adoption of direct elections of members of the EALA by the East African electorates. the issue of size of population represented in the EALA as prescribed in the treaty puts into question the principle of effective representation and accountability. is at the core of the exclusion of East Africans. The clause can also be interpreted to mean that the National Assemblies are supreme over the EALA. let alone the legitimacy of the EALA. functional and institutional meaning. The provision. Direct election would not only promote 9 . 2006). What needs to be emphasised and reiterated is that undemocratic and unharmonised electoral processes negate the principle of universal adult suffrage and individual sovereignty. In an attempt to address the issue of linkage with the people of East Africa. the EALA has since its establishment in 2001 adopted what it calls “taking the Assembly to the people through tours of the partner states by the EALA representatives” (Adar 2005. the sensitisation and mobilisation strategies implied in the EALA tours cannot be used to substitute recognition of sovereign rights of the people of East Africa (EAC Secretariat. 44 and EAC Secretariat 2004b). to determine. Third. EALA. The nine members of the EALA from each partner state inscribed in Article 50 (1) of the EAC treaty is an amorphous prescription. However. it is critical for the treaty to provide for clearly harmonised electoral system for members of the EALA. with no clear operational. Some scholars have argued that the nine members cannot represent the complex and diverse population in the EAC region (Oloo 2005. Prof. EAC/CM 14/2007. Ref. regulation. decision or action of a partner state or an institution of the Community…is unlawful or is an infringement of the provisions of this treaty” (EAC Secretariat 2002: Article 30). indirect elections through political party caucuses (Kenya and Tanzania) or support by at least 50 members of parliament in the case of Uganda’s no-party home grown movementocracy has the potential of encouraging political patronage and clientalism.and preserve sovereign rights of East Africans. in part. Doc. The ruling by the EACJ was a litmus test on 10 . Fifth. 2 Article 30 of the treaty states. Adoption of such a process would promote federalism and ensure long-term survival of the EAC (EAC Secretariat 2006). Hon. the Kenya’s National Assembly conducted fresh elections and the newly elected EALA representatives were sworn in together with the other representatives from the partner states in June 2007. Peter Anyang’ Nyongo’ and ten others submitted a petition in the East African Court of Justice (EACJ) challenging the process used in Kenya’s National Assembly to elect the country’s nine representatives to the EALA in November 2006. A classical example occurred in 2006 when Kenya’s member of parliament. and Kenya’s election of the East African Legislative Assembly members’ Rules do not comply with Article 50 of the treaty”. that any resident of a partner state may take a matter to the EACJ for determination if an “act. the functions of the EALA may be held hostage and delayed if there is a stalemate and disagreement in the national assembly of a partner state over the election of candidates submitted by a political party. directive. Fourth. the EACJ stated that (EAC Secretariat 2007c. In delivering its ruling in March 2007. 23):   “No election of East African Legislative Assembly representatives took place within the meaning of Article 30 of the treaty. Due to the ruling of the EACJ. but would also legitimise the EALA’s raison d’être. the main organ that should be endowed with responsibilities to drive the project of federalism. In a complex and diverse society such as the East Africa region to function effectively. It is in this context that the EALA has suggested that its role and the national assemblies of the partner states vis-à-vis the people of the region is to “mobilize public opinion” on the issue of federalism (EAC Secretariat. For the project of federalism to succeed in East Africa.its jurisdiction and independence vis-à-vis the decisions of the National Assembly of a contracting party to the EAC treaty. mobilization and sensitisation of East Africans as conceptualised by the EALA cannot substitute the sovereign rights of the people. requires a properly functioning legislative organ with all the rights and duties conferred on it by a treaty. tend to outweigh their concerns for the transformation of the EALA to accommodate the direct interests of the East Africans on the question of federalism. 2004. As I have argued. the EALA included. In other words. should play its rightful role by enlarging the democratic space in the region through legislative acts. EALA. like any other properly constituted and effective legislature. 30). The EALA. on the issue of good governance and its corollaries. accountability and democratisation is critical for any society. the role of any legislature. The EAC treaty fails to provide for clear linkage between the people of East Africa and the EALA. loyalty to the political parties and presidents by the EALA representatives and the EAC Ministers (as ex-officio members of the EALA) respectively. In the case of the East African Community. Decision-making on federalism as currently provided for in the treaty remains eclectic and will continue to pose challenges. Conclusion The preceding analysis indicates that federalism in East Africa remains an elite-driven project. the following suggestions would suffice: 11 . Proposed East African Legislative Assembly Institutional Structure on Political Federation EALA EALA COMMITTEE ON POLITCAL FEDERATION DIRECTOR-GENERAL POLITCAL FEDERATION DEPUTY DIRECTOR GENERAL RESERCH AND DEVELOPMENT ONPOLITICAL FEDERATIUON DEPUTY DIRECTOR GENERAL COMMUNICATIONS & PUBLIC AFFAIRS ON POLICAL FEDERATION DIRECTOR GENDER AFFAIRS DIVISION ON POLICAL AFFAIRS DIRECTOR LOCAL LANGUAGES DIVISION ON POLITCAL FEDERATION DIRECTOR REGIONAL/PROVIN CIAL/DISTRICT/LO CAL AFFAIRS DIVISION ON POLITICAL FEDERATION DIRECTOR YOUTH AFFAIRS DIVISION POLITICAL FEDERATION DIRECTOR CORPORATE COMMUNICATIONS DIVISION ON POLITICAL FEDERATION DIRECTOR PUBLIC AFFAIRS DIVISION ON POLITICAL FEDERATION 12 . which if adopted. The figure below provides a general institutional structure. has the potential of centralising accountability on the issue of federalism. A specific organ of the EAC preferably the EALA should be empowered by the treaty to drive the integration process and be directly held accountable for the East African federalism project. particularly Article 123. The Committee on Regional Affairs and Conflict Resolution as currently provided for in the Rules of Procedure of the EALA is too broad. It is recommended that the EALA be directly responsible for driving federalism and that the Assembly should appoint an expert to drive the project. with a special EALA Committee on Political Federation (COPF) and the EALA itself playing the oversight roles. This suggestion moves away from directives coming from the Summit as provided for in the treaty. It is. the heads of state of the federation should rotate on a yearly basis between the sitting EAC presidents is misplaced and ill conceived. The recommendation by the Wako Committee that at the initial stage. Under these arrangements. The EALA. Notes 13 . 3 A draft federal constitution should be debated and prepared by East Africans and approved in a referendum. The principle of universal adult suffrage should be the core value and practice not only for the EALA but also for the federal president at all stages of transition. Tanzania. and corruption. It is recommended that proportional representation based on the partner states’ population should be used to elect the EALA representatives. A federal state if properly instituted and agreed upon by the people. The EALA should meet as frequently as in the case of the national assemblies of the partner states and not once a year as provided for in Article 55 (2) of the treaty. therefore. Kenya. The EALA should enact laws that give clear guidance and directive on the question of multiple memberships to similar international governmental organizations (IGOs) in the region such as Southern African Development Community (SADC) and Common Market for Eastern and Southern Africa (COMESA). limitless terms of office for the president (Uganda). is better placed to rid the region of many vices that permeate the region such as ethnocentrism (Burundi. with the process commencing before the end of the current assembly. and Rwanda). with provisions to enable its transformation mutatis mutandis. being the main representative of the people of East Africa. should be de-linked from the Secretariat to enable the assembly to operate as an autonomous organ. the rules of procedure of the EALA should apply mutatis mutandis. the headquarters of the EAC.        Direct elections of the EALA representatives should be harmonised and implemented as soon as it is agreed upon by the partner states without waiting for the current term of the EALA representatives to expire. The election of the representatives should be done uniformly and through universal adult suffrage. recommended that the members of the EALA as well as the Council of Ministers should be residents in Arusha. 395-325. 2003. 14 Ordinary Meeting of the Council of Ministers. 24 (1). Kampala: Government Printer. 2004a. Korwa G. 1 of 2006 (Arusha: EAC Secretariat 2007). . Arusha: EAC Secretariat. 24th-25th 2007. Report of the Committee on Fast Tracking East African Federation. Duchacek. Politeia.x Sections of this paper are drawn from. Korwa G. Doc. EACJ. . East African Community. Ref: EAC/C 13/02/99. Proposed Review and Amendment of the Treaty for the Establishment of the East African Community. Ref EAC/CM 14/2007c. 2007. 14 . Report of the Commission. 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