chapter 2 The Institutional Framework of the EAC Wilbert T.K. Kaahwa 2.1 Introduction 2.1.1 Conceptual Background In the law of international organizations such as the United Nations (UN), continental organizations such as the European Union (EU) and the African Union (AU) and regional organizations including the Association of South East Asian Nations (ASEAN), the Common Market for Eastern and Southern Africa (COMESA) and the Southern African Development Community (SADC) the term “institutional framework” often refers to the legal framework that guides the pursuit of such organizations’ objectives. The term can also refer to the sys- tems of formal laws, regulations, and procedures, and informal conventions, customs, and norms that shape socioeconomic activity and behavior. However for the purposes of this book, this Chapter will only highlight the formal orga- nizational set-up established by the Treaty for the Establishment of the East African Community (“the Treaty”). The second part, the legal framework of the EAC, will be discussed in Chapter 3. The importance and relevance of the institutional framework in the East African Community (EAC) can be traced to three facts. Firstly, the EAC has revived an inter-state co-operation system, whose historical antecedents and systematic development between 1967 and 1977 had given rise to an elaborate organizational framework of organs and service commissions. The Treaty for East African Co-operation 1967 had established institutions such as the East African Authority,1 the East African Legislative Assembly,2 Ministers of the Community,3 the Common Market Council,4 the Communications Council,5 the Economic Consultative and Planning Council,6 the Finance Council7 1 Articles 46–48. 2 Articles 56–60. 3 Articles 49–51. 4 Articles 30–31, 53(a), 54. 5 Articles 53(b), 54, 55. 6 Articles 53(c), 54, 55. 7 Articles 53(d), 54,55. © wilbert t.k. kaahwa, ���7 | doi ��.��63/97890043��073_004 This is an open access chapter distributed under the terms of the CC-BY-NC License. Wilbert T.K. Kaahwa - 9789004322073 Downloaded from Brill.com10/03/2021 05:57:09AM via free access 44 Kaahwa and the Research and Social Council;8 corporations such as the East African Airways Corporation, the East African Harbours Corporation, the East African Railways Corporation, the East African Posts and Telecommunications Corporation;9 judicial bodies such as the Court of Appeal for East Africa;10 the East African Industrial Court;11 specialized bodies such as the East African Development Bank,12 the East African Community Service Commission13 and the East African Tax Board;14 and specialized departments, and services including the East African Medical Research Council and the East African Trypanosomiasis Institute.15 Secondly, the renewal and reconceptualization of co-operation among the United Republic of Tanzania, the Republic of Kenya and the Republic of Uganda in 1993 underscored the importance of an institutional framework. This renewal obliged the countries to explore and identify further areas for future co-operation and to work out concrete arrangements for co-operation,16 and therefore the need for an institutional framework became inevitable. This was reflected in the institution-creating overtones of the Agreement for the Establishment of The Permanent Tripartite Commission for Co-operation Between the Republic of Uganda, the Republic of Kenya and the United Republic of Tanzania17 and the Protocol on the Establishment of a Secretariat of The Permanent Tripartite Commission for Co-operation Between the Republic 8 Articles 53(e), 54, 55. 9 Articles 71–79. 10 Articles 80–81. 11 Article 85. 12 Articles 21–22. 13 Articles 62–64. 14 Article 88. 15 East African Community, The East African Community; A Handbook 1972, Arusha, East African Community Information Division, 1970.The bodies and institutions included the Meteorological Department, the Freshwater Fisheries Organisation, the Industrial Research Organisation, the Institute of Malaria and Vector-Borne Diseases, the Institute for Medical Research, the Leprosy Research Institute, the Marine Fisheries Research Organisation, the Pesticides Research Organisation, the Agriculture and Forestry Research Organisation, the Trypanosomiasis Research Organisation, the Tuberculosis Investigation Centre, the Veterinary Research Organisation and the Virus Research Institute. 16 See Article 14.02 of The East African Community Mediation Agreement 1984. 17 Agreement for the Establishment of a Permanent Tripartite Commission for Co-operation Between the Republic of Kenya, The United Republic of Tanzania and the Republic of Uganda; see particularly Articles 1–5. Wilbert T.K. Kaahwa - 9789004322073 Downloaded from Brill.com10/03/2021 05:57:09AM via free access The Institutional Framework Of The Eac 45 of Uganda, the Republic of Kenya and the United Republic of Tanzania.18 Jointly, these instruments established a Permanent Tripartite Commission for Co-operation and a Secretariat. Thirdly, the Community is a creature of modern dynamics in regional- ism. According to Heitne “the new regionalism differs from the old regionalism (which was based on security interests in the bi-polar cold war context) in that it is a spontaneous process from within a region, is more comprehensive and multi-dimensional and encourages non-state actors and incorporates issues of accountability and legitimacy.”19 The EAC has grown as a channel for eco- nomic integration rather than as a consequence of mainly political solidarity as did, for example, other erstwhile organizations in Africa.20 New regionalism necessitates organized structures for the purpose of effective and sustained realization of objectives. Indeed McCormick, with specific reference to the EU, argues that, “integration is effectively driven by institutionalized structures. For example, the European Union has evolved and is driven by an elaborate structure consisting of the European Commission, the Council of Ministers, the European Parliament, the European Court of Justice, the European Council and specialized agencies”.21 In its objectives as provided under the Treaty, and unlike the situation that obtained under the defunct East African Community (1967–1977), its prede- cessor the East African Common Services Organisation (1961–1967), and the colonial arrangement under the East African High Commission (1947–1961), the current integration process aims at achieving more than trade liberaliza- tion and harmonization in infrastructure and services. To use Amerasinghe’s approach to the classification of international organizations, the EAC is “an inter-governmental, supra-national and closed organization”22 that seeks to 18 Ibid., Article 5; See also The Protocol on the Establishment of a Secretariat of The Permanent Tripartite Commission for Co-operation Between The Republic of Uganda, The Republic of Kenya and The United Republic of Tanzania. 19 Bjorn Heitne, Development Regionalism in New Directions In Development Economics (Growth, Environmental Concerns and Government in the 1990s) Ed by Mats Lundahl and Benno J. Ndulu, London Routledge, 1996 pp. 160–164. 20 Such as The Organisation of African Unity and the Southern African Development Co-ordination Conference. 21 John McCormick, The European Union, Politics and Policies 4th Edn, (Philadelphia, Westview Press 2008), pp. 109–226. 22 C.F. Amerasinghe, Principles of the Institutional Law of International Organizations, 2nd edn, Cambridge, Cambridge University Press, 1996 pp. 9–13; See also Henry G. Schermers and Niels M. Blokker, International Institutional Law, The Hague, Martinus Nijhoff Wilbert T.K. Kaahwa - 9789004322073 Downloaded from Brill.com10/03/2021 05:57:09AM via free access 46 Kaahwa widen and deepen integration with the systematic establishment of a Customs Union, a Common Market, a Monetary Union and ultimately a Political Federation.23 It also emphasizes strong participation of the private sector and civil society in its co-operation programmes and activities.24 The accomplish- ment of these objectives requires an elaborate and functionally-purposed institutional framework. 2.1.2 Legal Basis for the Institutional Framework Since the Community is an organisation established by states through a treaty, the law applicable to its institutional framework is international law. The legal basis for the institutional framework is found in Article 9 of the Treaty, which stipulates that— 1. There are hereby established as organs of the Community: (a) the Summit (of Heads of State); (b) the Council (of Ministers); (c) the Co-ordination Committee; (d) Sectoral Committees; (e) the East African Court of Justice; ( f ) the East African Legislative Assembly; (g) the Secretariat; and (h) such other organs as may be established by the Summit. 2. The institutions of the Community shall be such bodies, department and services as may be established by the Summit. 3. Upon the entry into force of this Treaty, the East African Development Bank established by the Treaty Amending and Re-enacting the Char- ter of the East African Development Bank, 1980 and the Lake Victoria Fisheries Organisation established by the Convention (Final Act) for the Establishment of the Lake Victoria Fisheries Organisation, 1994 and surviving institutions of the former East African Community and shall be designated and function as such. Publishers, 1995 pp. 33–44, and Ray August, et al., International Business Law: Text, Cases and Readings, New Jersey, Pearson Education International, Fifth Edition, 2009, pp. 22–23.