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A Case for Efficient Legal and Institutional Frameworks for Cross-Border Railway Development in the East African Community

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A Case for Efficient Legal and Institutional Frameworks for Cross-Border Railway Development in the East African Community A CASE FOR EFFICIENT LEGAL AND INSTITUTIONAL FRAMEWORKS FOR CROSS-BORDER RAILWAY DEVELOPMENT IN THE EAST AFRICAN COMMUNITY BY GEORGE TEBAGANA SUBMITTED IN FULFILMENT OF THE REQUIREMENTS FOR THE AWARD OF THE DEGREE OF MASTERS OF LAWS IN THE SUBJECT INTERNATIONAL TRADE AND INVESTMENT LAW IN AFRICA AT THE UNIVERSITY OF PRETORIA SUPERVISOR: DR. FEMI SOYEJU MAY 2014 i © University of Pretoria Title of dissertation A CASE FOR EFFICIENT LEGAL AND INSTITUTIONAL FRAMEWORKS FOR CROSS-BORDER RAILWAY DEVELOPMENT IN THE EAST AFRICAN COMMUNITY BY GEORGE TEBAGANA 14201144 ii © University of Pretoria Declaration I declare that this Mini-Dissertation which is hereby submitted for the award of Master of Laws (LL.M) in International Trade and Investment Law in Africa at International Development Law Unit, Centre for Human Rights, Faculty of Law, University of Pretoria, is my original work and it has not been previously submitted for the award of a degree at this or any other tertiary institution. …………………………………………… George Tebagana (14201144) …………………………………………. Date iii © University of Pretoria Dedication I dedicate this work to my parents, Stephen Lumbuye and Eve Tusubira who have believed in my strength and encouraged me, with enduring patience through all stages of my life thus far. To you, I shall forever be grateful. iv © University of Pretoria Acknowledgements This minis-dissertation would not have been possible without the enduring support, patience and guidance of my supervisor Dr Femi Soyeju. I would like to express my sincere and deepest appreciation for his inspiration to me to take pride in my research. I would especially thank professors Patricia Lenaghan and Rieke Wandrag for your guidance during the defense of my research. You made my defense an enjoyable experience, and your brilliant comments and suggestions, gave me greater vision towards my final goal. I also thank the tutors, administrators and librarians in the Law School. All of you were always there to support whenever I needed your assistance. I am deeply indebted to my colleagues Noreen, M., Kate, M., Olayiwola, A., Sacre, G., Caleb, B., Sylvester, M., Kuda, T., Joshua, W., Zwelethu, S., Tigist, D., Ikeagwich, A., Wonderr, F., Winifred, S., Magalie, M., Emma, C., Abena, D., Cynthia, C., Jacob, S., and Mutiat, A. Your academic engagement and social support made my school life easier. Thank you. Finally, I appreciate the support of the course funders; Carnegie Corporation of New York, ACP-EU Trade, The Rockefeller Foundation, World Bank and AusAID. v © University of Pretoria Abstract The East African Community (EAC) suffers from a critical lack of cross-border railway networks that, if remedied, could improve regional connectivity and boost intraregional trade. The region would also become more investor friendly. Cross-border railway connectivity is particularly important owing to the challenging geographical location and small, uncompetitive and inefficient Partner States. The EAC Partner States have embarked on an ambitious programme to jointly revamp the region’s railways to address the transport deficits. Joint implementation of transport infrastructure projects offers economies of scale. However, joint efforts are constrained by inefficiencies of the region’s legal and institutional frameworks. The region is characterised by inefficient legal and institutional frameworks. This research argues that it is critical to first address the legal and institutional bottlenecks which will in turn constitute the backbone to support EAC’s efforts towards development and sustainable management of cross-border railways in the EAC. The research reviews effectiveness of the existing legal and institutional frameworks, identifies gaps and, using Southern African Development Community (SADC) as a benchmark proposes solutions for improvement. vi © University of Pretoria List of Acronyms AfDB African Development Bank AU African Union COMESA Common Market for East and Southern African CTTCA Corridor Transit Transportation Coordination Authority DRC Democratic Republic of the Congo EAC East African Community EARA East African Railways Authority EACJ East African Court of Justice EARHC East African Railways and Harbours Corporation EU European Union FDI Foreign Direct Investment GDP Gross Domestic Product KRC Kenya Railways Corporation NCTTCA Northern Corridor Transit and Transport Coordination Authority NEPAD New Partnership for Africa’s Development vii © University of Pretoria PIDA Programme for Infrastructure Development in Africa PPP Public Private Partnership PTCM Protocol on Transport, Communications and Meteorology RECS Regional Economic Communities RDF Regional Development Fund RISDP Regional Indicative Strategic Development Plan 2003 RIDMP Regional Infrastructure Development Master Plan RVR Rift Valley Railways SADC Southern African Development Community SATCC Southern Africa Transport and Communications Commission. SATCC-TU Southern Africa Transport and Communications Commission Technical Unit SDIs Spatial Development Initiatives UNCTAD United Nations Conference on Trade and Development USAID United States Agency for International Development URC Uganda Railways Corporation viii © University of Pretoria Case reference East African Law Society and others –vs- Attorney General of the Republic of Kenya and others, In the East African Court of Justice Reference No. 3 of 2007. Judgment of 8 September 2008. List of Treaties and Instruments Constitution of the Republic of Kenya 2010 Constitution of the Republic of Uganda 1995 East African Community Development Strategies (2001-2006. 2006-20011, 2011-2016) East African Community Model Investment Code 2006 East African Community Railways Master Plan Study 2009 Kenya Land Policy 2007. Kenya Railways Corporation Act (Cap 397) (Laws of Kenya) Kenya Railways Corporation Act Cap 397 (as amended) Kenya Railways Corporation (Vesting of Lands) Orders 1986 Land (Amendment) Act, 2010 (Laws of Uganda) Northern Corridor Transit and Transport Agreement 2007 Procurement Law of Burundi No. 1/01 of 4 September 2008 Procurement law of Rwanda No 63/2007 of 30/12/2007 Protocol for the Establishment of the East African Common Market 2010 Protocol for the Establishment of the East African Customs Union 2005 Protocol for the Establishment of the East African Monetary Union 2013 Public Enterprises Reform and Divestiture Act Cap 98 (Laws of Uganda) Public Private Partnership Act, 2010 (Laws of Tanzania) Public Private Partnership Act of Kenya, 2013 (Laws of Kenya). Public Procurement and Disposal Act (Revised Edition) 2010 (Laws of Kenya) Public Procurement and Disposal of Public Assets (Amendment) Act, Act No. 11 of 2011 Railway Concessions Interface Agreement between Kenya and Uganda 2006 Regional Indicative Strategic Development Plan (RISDP) 2003 SADC Protocol on Transport, Communications and Meteorology 1996 SADC Regional Indicative Strategic Development Plan 2009 ix © University of Pretoria SADC Regional Infrastructure Master Plan (2012 -2027) SADC Protocol on Transport, Communications and Meteorology 1996 SADC Regional Infrastructure Development Master Plan 2012 -2027 Standard Gauge Railway Agreement between Uganda and Kenya 2012 Treaty for the Establishment of the East African Community 1999 Treaty of the Southern African Development Community, 1992. Tanzania Railways Corporation Act, 1977 Uganda Land Regulations, 2004 Uganda Railways Corporation Act (Cap 331), of 1992 (Laws of Uganda) x © University of Pretoria Table of Contents CHAPTER ONE GENERAL BACKGROUND AND INTRODUCTION TO THE STUDY 1.1 History of Integration in the East African Community ………………….………..…..….1 1.2 Geographical disadvantage of Burundi, Rwanda and Uganda……………..………..……4 1.3 Research problem………………………………………………………………..………...6 1.4 Research questions……………………………………………………………….………..7 1.5 Thesis statement……………………………………………………………………….…..8 1.6 Significance of the study…………………………………………………………………..8 1.7 Literature review…………………………………………………………………………..9 1.8 Research methodology…………………………………………………………………...10 1.9 Limitation of the research…………...……………………………………………...........11 1.10 Overview of chapters…………………………………………………………………...1 2 CHAPTER TWO ASESSMENT OF THE EFFICACY OF LEGAL AND INSTITUTIONAL FRAMEWORKS GOVERNING RAILWAY DEVELOPMENT IN THE EAC 2.1 Introduction ………………………………………………..…………………………….13 2.2 Initiatives for regional railway development in the EAC………….…………………….13 2.3 Institutional and legal constraints to EAC railway initiatives ………..……….….……..15 2.4 Concluding remarks…………………………………………………….………………..36 xi © University of Pretoria CHAPTER THREE BENCHMARKING SADC’S LEGAL AND INSTITUTIONAL FRAMEWORKS GOVERNING RAILWAY DEVELOPMENT 3.1 Introduction ……………………………………………………………...…..…………..37 3.2 Rationale for benchmarking SADC…………………………………..……..……………37 3.3 SADC’s Legal framework for railway development………….……..……………………45 3.4 Lessons from SADC region………………………………………..…………....………..60 3.5 Challenges that the EAC may face in implementing the best practices from SADC.…....63 3.6 Concluding remarks…………………………………………..……….………………….65 CHAPTER FOUR SUMMARY OF FINDINGS, CONCLUSIONS AND RECOMMENDATIONS 4.1 Introduction………………………………………………………..……………………..67 4.2 Summary of findings…………………………………………….………………….……67 4.3 Conclusions of the research………………………...…………….………………… .…...72 4.4 Recommendations………………………………………………………………………...73 4.5 Concluding remarks……………………………………………………………………….76 BIBLIOGRAPHY …...………………………………………………………………………77 xii © University of Pretoria CHAPTER ONE GENERAL BACKGROUND AND INTRODUCTION TO THE RESEARCH 1.1 History
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