THE EAST AFRICA COMMUNITY AND THE STRUGGLE FOR  CONSTITUTIONALISM: CHALLENGES AND PROSPECTS

INTRODUCTION

Conditions in contemporary Africa are simply terrible. The deteriorating economic, political, social conditions of the region have generated a lot of Afro-pessimism…Africa is likely to remain the backwater of the global economy…the forth world of the forth world…The African crisis is no longer defined in technical and  economic terms but as problems of human rights, social and political impasse…The total suffocation, fragmentation and encapsulation of civic society, containment of democratic civil pressure and the depoliticisation of civil society have frustrated growth, stability, peace and development. The erosion of the security and stability of Africa is one of the major causes of continuing crises and acts as a major impediment  to the creation of sound economies and the establishment of an effective system of intra and inter-African cooperation.[i]

The role of regional institutions in promoting constitutionalism is best appreciated against the backdrop of the above quotation. Promoting economic co-operation among developing countries is now an acceptable part of international development, to the extent that over the past two decades more than a dozen trade zones, monetary unions, common markets, free trade zones and other regional co-operative arrangements have been proposed, or established in Latin America, Africa and Asia.[ii] While the process of regional integration is inextricably linked to the quest for economic development, it is the argument of this paper that economic development cannot be achieved in a state of constitutional crisis and without addressing the root causes of underdevelopment.

The term “regional institutions” refers to those organisations that comprise of states drawn together in the common pursuit of economic or political aspirations. All regional organisations seem to have always had synergy in strategic visions and prospects for economic development. The East African Community (EAC) is the regional inter-governmental organisation of the republics of Kenya, Tanzania and Uganda, with its headquarters in Arusha. The EAC aims at widening and deepening co-operation among the partner states, through the creation of a Customs Union, a Common Market, a Monetary Union and ultimately a Political Federation.[iii] The EAC acknowledges that it is no longer fashionable to regard regional organisations as being primarily institutions for economic development, geared towards the creation of a single market.[iv] With greater acceptance of limited state sovereignty as a basis for any development, regional organisations are addressing issues of human rights, environmental management and constitutionalism. With the imperatives of contemporary globalisation, it has become clear that regionalism must address issues of development, the environment, political stability, rights and governance.

While it is agreed that the constitution is the supreme law of any country, the definition of constitutionalism, as is the case with the term “democracy”, is subject to different perspectives given specific social and historical contexts. Constitutionalism goes beyond the mere existence of a constitution and governance according to the Constitution.[v] Constitutionalism is premised on the assumption that the constitution is a social contract between the people and their leaders, that defines democratic governance, guarantees individual rights, and empowers the citizenry to use it as a living document that reflects their needs and aspirations in furtherance of their day to day life struggles.[vi] In this respect the paper suggests that the EAC has a significant role to play in the development of a culture of constitutionalism, as well as in stimulating popular participation of the people of the region in the matters that affect them. All over the sub-region, NGOs, activists and scholars as well as politicians are advocating good governance and constitutional rule. The EAC can serve as a regional platform for networking, monitoring, research and policy on these and related issues. In this way it would be providing additional support and coverage for articulating and implementing regional policies on democracy, governance and constitutionalism. Finally, by playing a critical role in these areas, the EAC would be cultivating a regional culture of constitutionalism with far-reaching implications for democratic politics, by stimulating popular participation of the people in the region in matters affecting them. In the next section, I offer a background to the EAC to highlight the imperative of popular participation by East Africans.

BACKGROUND TO THE EAC

With the end of the First World War, Tanganyika became a British Mandated Territory and the idea of a joint administration was strongly advocated by Kenya. It is noteworthy that first calls for regional integration were made by the white settlers in Kenya who sought to see their economic influence extended over the wider East African region.[vii] Kenya was colonially managed as a centre of development in East Africa, thus industries were set up there to supply the other territories. Nevertheless, there had always been some kind of unity among the three East African states in their trading and commercial relationships.[viii] There was a deliberate development in the 1920s to encourage closer and more formal union. For example, in 1929, the East African shilling was established replacing the rupee and was in use up to 1966. In 1924, the Ormsby-Gore Commission was formed to study the benefits of a territorial federation.[ix] It reported that the proposed federation was premature, taking into consideration the lack of communication and geographical conditions, and instead recommended the establishment of a Governor’s Conference, composed of the governors of Tanganyika, Kenya and Uganda as an informal body to oversee East African co-operation. The reports of the Governors' Conference were accepted and immediately implemented by the colonial office by administrative direction.[x] The main function of the Conference was to coordinate, and in some cases facilitate through its Secretariat, an inter-territorial common services that were already in existence.[xi] In 1917, Uganda and Kenya formed the Customs Union, which Tanzania finally joined in 1947.[xii] Likewise, there were a number of common services in the region. The first common service was the Uganda Railway from Mombasa to Kampala, which was built in 1895, and was later renamed the Kenya-Uganda Railway. Tanganyika Railways was amalgamated with the Kenya-Uganda system in 1948, giving birth to East African Railways. In the 1890s, The Imperial East African Company established the Post and Telegraphs in each of the three countries. In 1933 the three services were amalgamated to form the East African Post and Telegraphs. The East African Airways came into being in 1946 also on the recommendation of the Governor’s Conference. The Harbour services of Tanganyika were amalgamated with those of Kenya giving rise to the East African Railways and Harbour.[xiii]

In 1945, the Colonial Office issued a White Paper, aimed at re-organising the East African Common Services structure. The Colonial Office had appreciated the need for more public involvement in the functioning of the common services, due to the resistance against the federation by Africans. It therefore argued that,

functions without public debate or discussions and decisions are normally based in materials available only to governments concerned and not the general public…By its nature the Governor’s Conference is not well designed to enlist the support of public opinion and to take full advantage of the considerable body of expert knowledge and experience which is available in East Africa. In fact it must be admitted that although it has served an important purpose, the Governors Conference in its present form is no longer an appropriate nor effective means of discharging the important responsibility.”[xiv]

Therefore, the White Paper proposed the establishment of the East African High Commission, a body consisting of three governors, official advisers as well as a Central Legislative Assembly, which came into force in 1948. The white settlers of course dominated it. As a result of the majority membership of white settlers in the East African High Commission, feelings of nationalism in Uganda and Tanzania for fear of white domination were ignited, thus denting the spirit of East Africaness within the region.[xv] In 1949, the East Africa Common Market was born with the bringing together of the Customs and Excise offices. In 1960-1961, The Raisman Commission was established to undertake the first thorough study of the functioning of the East African Common Market and Common Services. As a result of the recommendations of the Raisman Commission, the East Africa High Commission was disbanded and replaced by the East African Common Services Organisation (EACSO).[xvi] The EACSO was a major development for it placed decision making under the ambit of East Africans. Prior to this, all major decisions on East African co-operation were in effect made by one central authority, based at the White Hall colonial headquarters in London.[xvii] With the establishment of EACSO, the responsibility for ordinary policy decisions was placed in the hands of the Committee of Territorial Ministers called 'the triumvirates'. The responsibility for the administration of the organisation was entrusted to the Secretary General assisted by three senior officials. The Central Legislative Assembly was established to legislate over the common services and a Distributable Pool Fund put in place as an independent source of revenue for the activities of the EACSO. 

While, prior to independence, Africans were against the federation for fear of white domination, there was enthusiastic embrace of the idea of federation on independence. East African leaders sought a federation for purposes of unity and for remedying the trade and industrial imbalances created during the colonial era. In 1966 the Phillip Commission, comprised of three ministers from each of the three countries, was established. The report of the Commission became the basis for the Treaty of East African Co-operation. In the spirit of pan-Africanism, the postcolonial leadership of Julius Nyerere, Jomo Kenyatta and Apolo Milton Obote formed a loose association of  economic interests, EAC, in 1967. The EAC was the best example of cooperation among developing countries. At the time of its demise, the EAC employed about 100,000 people and had assets valued at 500 million Kenyan pounds. The cooperation went beyond the traditional concerns with trade liberalisation and industrial harmonisation to include joint training and research institutions.[xviii] Despite being an exemplar of regional cooperation, the EAC collapsed in 1977. The EAC failed to survive the political differences of its leadership, the perception of unequal economic gain and a good deal of external manipulation and individual egoism.[xix] Additionally, other factors leading to its demise included poor leadership, which manifested itself in greed, intolerance, vengefulness, lack of foresight and the absence of honest analyses of problems.[xx] In other words, it collapsed because it was purely a state affair, with no organised civil society to buttress it.[xxi]

During the existence of the EAC there was reduction in foreign imports by the East African countries and increased inter-state trade among them.[xxii] All the three East African countries have witnessed serious economic decline since the collapse of the EAC.[xxiii] The mid-1980s and 1990s were characterized by global economic crises and Structural Adjustment Programs. Programs of commercialisation, privatisation, de-subsidisation and other supply side prescriptions largely failed to meet the expectations of the people of East Africa. This was largely because they ignored existing social networks of vulnerable communities and the existing distrust between those in power and the people. Lacking a social contract  therefore, SAPs precipitated conflict, violence, disillusionment, the weakening of the state and coping strategies that ran contrary to the market realities. Once again the need for regional co-operation was intensely felt.

In the era of globalisation, there is a great scope for co-operation among countries that share a common heritage. Thus, on November 13^th 1993, the three countries signed an agreement for the establishment of the Tripartite Commission for Cooperation, charged with the responsibility of coordinating the economic, social, cultural, security and political issues for closer East African cooperation. The Treaty for the East African Community came into force on July 7^th 2000, and the revised institution was officially launched on January 15^th 2001.

CHALLENGES

It is futile to evaluate an organisation in its infancy, as most of its ideals are yet to materialise. This paper therefore seeks to present the dilemmas, challenges and hopes for a vibrant people-centred community. In the next section, I consider the EAC in a more critical perspective. It outlines the challenges faced by the EAC particularly against the backdrop of the expectations of the East African citizenry.[xxiv]

The establishment of the EAC was intended to be people-driven. For that reason the East African Commission put the draft Treaty to public debate from May 1998 to April 1999. Unfortunately, to the question posed by the inaugural Secretary General, Ambassador Francis Muthaura,[xxv] “are the people of East Africa involved adequately in the formation of the EAC policies?" the answer remains a resounding NO! The establishment of the East African Community has largely been a top-down process involving the governments of the region, with the grassroots communities barely informed, educated or consulted about the process. The language and the style of the body remains bureaucratic and elitist. Only the urban based and educated have been marginally involved. There are no comprehensive and well-funded institutions in place to generate and package information for dissemination to the people. The masses of women, peasants, workers and the youth, in their respective organisations and communities, have not been brought into the process. Even NGOs have only been peripherally involved. Indeed, there is no evidence that the power elite in East Africa wish to alter fundamentally the existing traditional patterns of regionalism. Although the East African person is presented by governments as the beneficiary of cooperation, the same governments have conceptualised a child-like individual, who has no ability to contribute to the growth of cooperation, but rather is expected to accept, whatever the paternalistic governments decide.[xxvi]

The perspectives of the political leadership notwithstanding, the unity and development of East Africa is too important to be left to the regimes of the region. For the Community to be sustainable, there must be considerable involvement of the people of the region in determining the content and context of their governance. There is no doubt that the popular will of the people has to be fully harnessed and involved in the creation of a stable, vibrant and closer cooperation and interaction between the East African countries and peoples.[xxvii]

Socialisation of the EAC

Despite the emphasis by East African leaders that the Community must create wealth, jobs and guarantee peace and security, these objectives continue to remain a myth. The notion of regional integration is controversial and has witnessed mixed feelings. On the one hand, there is the acknowledgement that the countries of East Africa have enjoyed close historical, commercial, industrial and cultural ties. They share a similar educational background and a common law jurisdiction. There is also the realisation that no single nation on the continent can achieve economic development in order to meet all the aspirations of its citizens without collaboration with the others. For example, between 1990-1997, of the three East African countries, only Uganda managed to maintain an average real GDP growth rate of higher than 3% annually, with the rest either in decline or at best stagnant.[xxviii] Hence the revived impetus for reintegration. On the other hand, there are sentiments of worthlessness and apprehension on the part of the ordinary person about the real (economic) benefits of regional co-operation where the playing field is not level. This can be captured from the rhetorical questioning, 'why should the East African countries integrate abject poverty?'[xxix] Hence, for a start, regional cooperation must be a vehicle for nation building and for the satisfaction of basic needs. This ought to be the starting point and the primary concern of regional co-operation.[xxx] For any integration to succeed, each partner must benefit. No government would convince the populace that it has to sacrifice its interest to those of the group as a whole, when there are no tangible benefits forthcoming.

The pessimism is compounded by the difficulty in assessing the value or achievement for economic integration because many of the factors cannot be quantified. Costs are immediate, while benefits accrue in the long term, as is the case of ECOWAS.[xxxi] For example, the growth rates are not very promising: Tanzania is the only economy which recorded a growth rate of 4.8% compared to 4.0% in 1998. In Kenya the GDP growth rate continued to decline from 2.8 in 1997, to 1.8 in 1998 to 1.4 in 1999, while in Uganda, the GDP recorded a growth rate of 5.1% which was lower than the projected rate of 7.0 %.[xxxii]

The above is exacerbated by the increased disillusionment of the populations with their governments. The realities of the poor as they face abject poverty, lack of basic services and poor governance, compounded by the yawning gap between the rulers and the governed, contribute to the sense of powerlessness of the people.[xxxiii] If the relationship between the state and the people is characterised by hostility, why should people accept an additional layer of suppression and oppression without real benefit? While the issues of poor governance may concern many, they are so frustrated that they have minimal expectation of their leaders. The truth is that African leaders have a horrible record of keeping promises. The masses have been mis-ruled, misled and abused for so long by regime after regime. Possibilities for growth, development and creativity have been steadily eroded and the vast majority is yet to see the fruits of so-called “independence.” The peasantry continues to sustain the economies with no benefit for their toil. Instead they have to continue to sustain irresponsible and non-accounting governments. In Tanzania, agriculture contributes 48.9 % to the GDP and provides employment to 85% of the population;[xxxiv] while it contributes 25% of GDP for Kenya[xxxv] and in Uganda it is estimated to be over 50%. Despite this fact, agriculture receives meager financing from all the governments. For example, in Uganda, according to 1998-99 estimates, agriculture received a meager 1.8% of the total budget.[xxxvi] 

The skepticism about the benefits of cooperation and misgivings about the future of the treaty are so real that a workshop was held to promote the public relations and marketing plan of the EAC.[xxxvii] The EAC must create public confidence in and respect for its institutions so that they become legitimate in the eyes of the partner states and their people.

PROMOTION OF A CULTURE OF CONSTITUTIONALISM

For any form of cooperation to be successful, it must be founded on an agreed minimum political framework embodying democratic freedoms. As observed by the inaugural Council of the East Africa Law Society (EALS), in each of the three East African countries there is an urgent need to secure a greater acceptance of pluralism in order to guarantee equal and meaningful participation in public affairs and accountability of the governors to the governed.[xxxviii] Indeed, African leaders in The African Charter for Popular Participation, Development and Transformation, resolved that there must be an opening up of the political process to accommodate freedoms of opinion, tolerate differences, accept consensus on issues as well as ensure effective participation of the people and their organisations and associations.[xxxix] Ironically, political practice in East Africa has been the opposite of the ideals expressed in that instrument.

Although at independence all three East African countries inherited constitutions with the checks and balances characteristic of constitutional government, between independence and 1970, the political leadership in all the three countries had established one party states. Both Kenya and Tanzania operated a constitutional one party state, while in Uganda all political parties, other than the ruling Uganda Peoples’ Congress, (UPC) had been declared unlawful societies.[xl] Legal efforts have been undertaken to free political space in both Kenya and Tanzania. In 1991, Kenya amended Article 2A of its constitution, introducing multi-partism, while in 1992 Tanzania enacted the Eighth Amendment to the Constitution that introduced multi-partism. Nonetheless, in both countries there is considerable repression of political pluralism, while in Uganda, a one-party-cum-movement has been institutionalised under the 1995 Constitution.[xli] None of the current constitutional regimes in East Africa, permits meaningful democracy. The right of the wananchi[xlii] to participate in politics is severely restricted, with limited rights to organise and constricted freedom of assembly and expression.[xliii] In Kenya, the government has relied on the Public Order Act to criminalise any form of public gathering under the pretext that it incites violence.[xliv]

Since a government can only be founded on the consent of the people, the revival of the EAC must go hand in hand with the correction of the lack of constitutionalism that has plagued each of the countries that are members of the organisation.[xlv] A viable political framework is the lynch pin for economic development.[xlvi] In fact, governments must see regionalism as a veritable weapon in the fight to restructure their economies and political systems. If Africa in general, and East Africa in particular, is to alter the existing patterns and relationships of underdevelopment, dependence, foreign domination, poverty and general social and technological backwardness, a holistic approach to regionalism must be adopted. More importantly, there is a critical need to understand and appreciate the need for dismantling the neo-colonial states and building new structures that enhance democracy, participation, inclusion and social justice. While multi-partism on its own cannot guarantee constitutional development, it provides a framework for the struggle and expansion of democratic freedom, to further enable the citizenry of the three countries to interact at various levels in a secure, and mutually-acceptable, political environment.[xlvii]

The above factors are exacerbated by the fact that in most African countries, governments tower over civil society in a relationship of subordination and patronage.[xlviii] People are consulted with the main objective of finding out whether they can simply say "YES" to what is being proposed.[xlix] Additionally, there is gross failure to observe constitutional provisions even when they have been in existence for many years. For example, despite the fact that Uganda has had a Bill of Rights for thirty years, it has been flouted with impunity.[l] Furthermore, within the East African region a constitution is used more as a power map[li] to define the roles and responsibilities of different organs of state. The rulers have used the constitution as a tool to entrench themselves in power or have totally disregarded its existence.[lii] Although, in some instances, the rulers have followed the constitution to the letter, where they are frustrated by the constitution, amendments have been engineered.[liii] Constitutionalism has been readily adopted as opportunistic strategies to close democratic space, contain popular rights and negate even traditional cultures, tolerance and popular involvement in decision-making. The rulers have perfected the art of brutal and inhuman politics with a desire to retain power and keep the wananchi out of politics and constitutional development.

Governments have assumed the exclusive mandate to speak for and on behalf of the people, even where that mandate has been fraudulently secured. Where civil society engages in advocacy that challenges the status quo, the Government has effectively used law as a tool of oppression and issued threats, instituted diversionary cases against activists and, in some instances, detained them. Again, all three countries have legislation to control the actions of NGOs, with express prohibitions on political activities.[liv] As a result, many human rights and pro-democracy NGOs have shunned activism. Rather, they work quietly behind the scene, or engage in non-controversial issues.[lv] However, politics cannot be separated from economics and development, since both require the making of choices, which invariably involves politics.[lvi] In the contemporary world of globalisation, governments cannot afford to contain the democratic and creative energies of the people. The NGO community needs to be mobilised. Their networks, resources, global ideas and connection could be of critical use to the process of regionalisation.

It is hoped that the EAC will mediate the many tensions between civil society and the state and work towards constitutionalism and mutual accountability. The question is, do we have, or, at least hope to have, a regional institution that can act as a watchdog for universally acceptable principles, or should we always run to the “North” to decide for us, or worse, tell us what we already sub-consciously know? The OAU has been criticised for being a club of heads of state, a paper tiger, a toothless organisation, a club more content with celebrating its past achievements, than on marshalling the creative energies of their peoples.[lvii] The EAC should act differently, but can it? Its performance so far is not promising. For example, in the recent electoral violence in Uganda and Zanzibar, the EAC has been conspicuously absent. And yet, conflict, unrest and economic development are not good bedfellows.

The EAC may face the fate similar to many such institutions in developing countries, where regional integration is over-politicised, resulting in a slowing down of the pace for integration, if not total disintegration. Political nationalism has been a major impediment to regional integration.[lviii] Likewise, local political issues seem to preoccupy leaders with a prioritisation on national economic development. As a result, policies and actions for cooperation are informed by their implications for the domestic political arena.[lix] Again, there has been a concern about the poor commitment of the political leadership to the EAC due to their continued interest and loyalties to other regional blocks.[lx]  Another profound fear expressed by the citizenry is the fact that the defunct EAC collapsed due to politics, thus the future of the current EAC would be promoted by reduced government intervention in the affairs of the EAC.[lxi]

Unfortunately, the mandate of the EAC to implement the Treaty is limited, for lack of an East African Community jurisprudence. Although Article 8(2) obliges partner states to recognise the Treaty as part of their law, an enabling law is yet to be effected. Unlike in the European Community, where Community law is superior and binding upon member states in furtherance of human rights,[lxii] the position in East Africa is yet to be clearly resolved. Despite having a common law background, there are disparities in the legal systems of the three East African countries. The harmonisation of the law is an uphill task impeded by conflict of laws and a lack of legislative basis.[lxiii]  Again, the lack of real decision making powers of the EAC, coupled with problems of financing the process of regional integration, further militates against its effectiveness in advancing constitutionalism. Yet this is the only way that governments can demonstrate a break with the past, a commitment to new ideas and a willingness to engage in a radical reconstruction of the political foundations of economic growth and development.

BROADENING THE MANDATE OF THE EAC

The primary focus of the EAC is to establish an economic union with particular emphasis on the private sector. The private sector, by definition, is primarily profit oriented and liable to subscribe to narrow economic interests at the cost of good governance and human rights protection. While the Treaty provides for the establishment of the East African Court of Justice (EACJ), as the supreme court of the region within twelve months from the date of signing the Treaty, its jurisdiction has been limited. The EACJ was intended to ensure adherence to law in the interpretation, application and compliance with the Treaty, as well as to have original, appellate and human rights jurisdiction. The decisions of the court on the interpretation and application of the Treaty shall take precedence over national courts on a similar matter (Article 33(2). Decisions of the Court shall be final, binding and conclusive and not open to appeal (s. 35), except where new facts have come to light. Any person who is a resident of East Africa may petition the court against any act or omission, which is unlawful or infringes the provisions of the Treaty. Unfortunately, the human rights jurisdiction has been deferred to a date “as will be determined by the Council.”[lxiv] For many observers, this deferment only shows that the political will to go the distance in the contemporary human rights era is still very much lacking. Those in power are still very uncomfortable with promoting human rights, especially the so-called second-generation rights.

Ironically, civil society has not appreciated its urgent role in engaging the regional process. In contrast, it has argued that the fact that the jurisdiction of the East African Court in matters of human rights has been deferred has rendered its role obsolete, as it is purely a trade agreement.[lxv] On the contrary, the activism of civil society is of immediate necessity for the same reason. Each country has to balance out a range of divergent interests as decisions about trade and development are made. There is need for regional advocacy to pressure governments to widen the scope of jurisdiction of the EACJ to handle human rights issues. There are many legal and human rights issues that will affect the rights of the wananchi under the Common Market. People's interests are better served when their economic and cultural rights such as the right to work, to a clean and healthy environment and to earn a living (which shall be directly affected under the Common Union) are protected as a matter of priority.

Cooperation and interaction between countries and peoples are possible only on the basis of commonly accepted norms and standards of human rights, which regulate the conduct of the people as they pursue their interests. However, there is still considerable resistance against the recognition and protection of human rights. Among the many arguments are that human rights are foreign in origin and not germane to our people. Secondly, it is argued, human rights are of secondary importance to the basic needs of Africans such as food, health, shelter and clothing.[lxvi] As rightly argued by Nyalali, the simple historical truth is that the independence of African states was grounded in human rights.[lxvii] Development must not be pursued at the cost of human rights. In comparison, although the Treaty on European Union does not contain a charter of basic rights, the Maastricht Treaty explicitly declares that the Union shall respect the fundamental rights as guaranteed by the European Convention for the protection of human rights and fundamental freedoms signed in November 4^th 1950. Hence, respect and promotion of basic human rights is a paramount responsibility of state parties.[lxviii] It is such guarantees and respect for human rights that will facilitate the nurturing of a regional sense of community and purpose in the East African context.

THE ISSUE OF FORCED DISPLACEMENT

As the people and governments of East Africa are moving towards closer collaboration, there are serious implications for the movement of persons, especially the protection of the marginalised populace. Historically, the East African region has been both a major producer and recipient of persons forcibly displaced from their traditional places of abode.[lxix] Ethnic and racial clashes in neighbouring countries of East Africa have had far reaching effects on the region in terms of the number of forced migrants generated. The 45-year-old Sudan war between the North and the South has had many serious consequences, not to mention the Tutsi/Hutu divide and genocide in Rwanda. It is estimated that there are 1,253,000, refugees in the Great Horn Region; about half of all refugees on the African continent.[lxx] The region has experienced increased conflicts in Sudan, Uganda, Somalia, Ethiopia, Zanzibar and the neighbouring Congo, which inevitably aggravates the estimates.

Additionally, refugees and displaced persons are generally viewed as a security risk, thus the massive involvement of the military in dealing with their problems and their settlement near borders. It is therefore not surprising that all three countries have been guilty of refoulment. They have also used the military to ‘clean up’ foreigners, as was the case in Tanzania in 1997, the nullification of permits issued by UNHCR in Kenya in 1998 and the allegation of cross border rebel activities in Uganda.[lxxi]

Although all three East African countries are signatories to the international conventions on refugees and human rights, there is a serious lack of appropriate municipal legislation in Kenya. Uganda's and Tanzania's legislation, on the other hand, is not in conformity with international standards. Furthermore, response to the displacement question is largely dependent on international aid and foreign experts who provide short term relief aid. Furthermore, there are serious limitations at the level of policy formulation, legislative harmonisation and practical enforcement. Most of the policies are developed in ad hoc fashion with only meager resources available. The law is arcane, inadequate, incomprehensive and with primary focus on the control of such persons, rather than their protection.[lxxii]

GENDER MAINSTREAMING

The EAC Treaty recognises the role of women in the enhancement of socio-economic development[lxxiii] and the role of women in business.[lxxiv] Further, in 1998, the process of establishing a Regional Gender Programme was started with the aim of creating a mechanism for ensuring the incorporation of gender in the EAC framework.[lxxv] As a result, a Gender and Community Development Committee was established. However, the Treaty is silent on the place of women in the political arena. And yet, the lack of women’s participation in the political arena has immensely contributed to their marginalisation, domination, exploitation, and disrespect as a constituency in Africa. The political stage is pre-determined by men, and there is male patronage in the choice of women leaders. There are very few states that have attempted to “re define the power map” from a gendered perspective.

In Tanzania, out of the current Parliament of 275 members, only 45 are women, constituting a mere 16.3% of the total. There are only 3 full women Ministers out of 23 Cabinet Ministers. There are only 4 women out of the 23 Permanent Secretaries.[lxxvi] In Uganda in 1998, there were only 7 women out of the 47 Cabinet ministers, 51 women out of the 226 Members of Parliament.[lxxvii] The current cabinet has 4 women out of 22 ministers and 12 out of 44 deputy ministers.[lxxviii] In Kenya, there was no woman elected to Parliament between 1963-1969. In 1969, only one woman was elected while another was nominated by the President. In 1992, there were six women parliamentarians. Out of the current parliament of 222 members, only 4 are women.[lxxix] More than any other East African country, the political leadership in Kenya continues to demonise and derogate women. Clearly, in spite of the rhetoric about women and development, the governments in East Africa are yet to appreciate fully the critical importance and role of women in the future of the region. Aside from breaking down existing political, economic, social and cultural barriers to effective mobilization and involvement of women in all spheres of society, there is still a great need to construct relevant structures and institutions to reverse the current exploitative tendencies and relationships, which reproduce the status quo. Massive public education, institutional reforms, progressive legislation and policy reforms are needed to reverse the current situation.

The EAC must place gender at the center stage of debates on and about constitutionalism. There is a need to generate a solid conceptual framework upon which to understand issues relating to the phenomenon of democratic governance, and as an anchor upon which women’s struggles against oppressive socio-economic and political systems in the region, may be based.

OPPORTUNITIES

Amidst the rampant Afro-pessimism, the real issue is not the unavailability of workable solutions but rather the absence of the required political will and appropriate political environment to implement them. Policies of Africanisation, indigenisation, nationalisation, import-substitution, joint ventures, partnerships, SAPs have had limited effects on the quality of life, and political stability. Furthermore, these measures have failed to enhance the declared projects of nation building or the meeting of the basic needs of the vast majority of the people.[lxxx] As far back as 1990, The African Charter for Popular Participation in Development and Transformation, guided by the Economic Commission on Africa (ECA) and a joint initiative of NGOs, grassroots and governments, adopted a human-centred approach and emphasised that popular participation is central to all proposals of development, because it encourages people to accept the fact that sacrifices have to be made. It is noteworthy that this Charter was borne out of the initiative of NGOs, grassroots and governments.[lxxxi] A people centred approach also builds legitimacy for public programs, promotes the mobilization of the people and lays a foundation for collective development and shared experiences. Again, the World Bank’s Berg Report prescribes that good governance is a prerequisite for poverty reduction, and in turn good governance can only be safeguarded by civil society.[lxxxii] It is gratifying that among the EAC’s recognised fundamental principles[lxxxiii] is the promotion of good governance and constitutionalism.

The participation of civil society in the regional agenda must be strengthened, because it is the civil society that bears the brunt of the effects of those decisions. Moreover, in democratic societies, the state exists to serve the people and not vice versa. On close examination, it is clear that it is the leaders who subvert constitutionalism. People are the guarantors of constitutionalism to compel leaders to adhere to the spirit of the constitutional culture or ethic.[lxxxiv] Governments are not going to give up power and influence easily. Hence, bridging the gap to promote mutual accountability and shared values of constitutional development depends on the relative power of civil society to organise itself and seek its rightful space in a respectful partnership.

Throughout the Treaty-making process, the need for a people driven and people centred development has been underscored. The Treaty has provisions for the creation of an enabling environment for the involvement of the private sector and civil society, and enhancement of cooperation among business organisations and professional bodies.[lxxxv] The Permanent Tripartite Commission Council of Ministers in its 13^th meeting in September 1999, laid out clear and specific guidelines for giving NGOs observer status. This was adopted by the EAC. Accordingly, an observer may participate in the proceedings of the meeting to which they are invited, make a statement on a matter of particular concern to them, provided that the Secretary General receives it prior to the meeting. Furthermore, the observer may have access to documents of the Community provided that they are not of a confidential nature and they deal with matters of interest to the observer concerned.[lxxxvi]

Issues of constitutionalism are alive within the region. Citizens within the region have engaged in the democratisation process, despite the efforts to lock them out. In Tanzania, in response to the government’s White Paper,[lxxxvii] a directed and controlled constitutional reform process, civil society formed the Citizen’s Coalition for the New Constitution (CCNC), as a more participatory approach to the formulation of the constitution by collecting the views of the people.[lxxxviii] In Kenya, popular interest culminated in the creation of the Citizen’s Coalition for Constitutional Change (4Cs), and the parallel constitutional making process, through the Ufungamano Initiative led by religious leaders which resulted in the publication of the Peoples’ Constitution.[lxxxix] We are yet to see the outcome of the state dictated constitution process, which one critic has referred to as a circus.[xc] Civil society groups in Kenya continue to complain about marginalisation and manipulation of timing of the constitutional review process. In Uganda, the sustainability of the no-party state experiment is under serious threat for locking out political participation.[xci] All this notwithstanding, despite the existence of mutual distrust between the state and civil society, it is the resistance to manipulation, repression and gross human rights violations, which has encouraged the emergence of several popular organisations, which provide options for the future.[xcii]

Strengthening regional activities

There is a need to strengthen regional institutions that shall design long-term perspectives on constitutional issues, and to consider them within the framework of general constitutional development. The collaborative exchange and mutual development across borders should be warmly received and promoted. Indeed, the people of East Africa continue to cooperate amongst themselves, in businesses as well as professional associations, such as Kituo Cha Katiba: the East African Centre for Constitutional Development; the East Africa Law Society; the East Africa Human Rights Network; the East African University Academic Network; the East African Women Parliamentary Union (EAWPU) and the East African NGO Council, to mention but a few. Furthermore, The East African, a weekly paper covering issues of regional interest, has been in circulation for some years. More paramount, the peoples of East Africa have been trading among themselves to such an extent that annual informal trade yielded about US$, 200-300 million for each country.[xciii]  The recent introduction of the East African passport has the potential of easing movement of persons, and it should be readily availed to all East Africans. Additionally, there is the removal of border charges for private passenger vehicles and the easing of border crossing formalities. At a governmental level, Uganda has established a Ministry for Regional Co-operation solely responsible for cooperation issues. It is the central organ to facilitate the focusing of regional economic development in national policies and development programmes, as well as provide an apparatus for monitoring and coordinating integration development.

Regional institutions are uniquely and strategically placed to seek the promotion of positive constitutional reform and adjustment without facing the travails of national institutions and NGOs. Such lobbying and advocacy would include the conceptualisation of issues of constitutional importance, and the development of people-centred agendas. Given the establishment of the East African Community, numerous issues of an international and regional nature are going to require domestic and regional constitutional reflection and resolution. These include the issues of migration and refugees, the control of shared natural resources and the management of conflict within the region and beyond. At the domestic level, each of the countries face significant constitutional issues regarding ethnicity, gender, and various rights and freedoms, that are under continuous threat and require to be tracked down and publicised.

There is great potential for civil society organizations to mobilise and raise civic awareness of the wananchi, to understand that regional cooperation is intended to, among others, raise the standard of living of the people, maintain and enhance economic stability and foster closer and peaceful relations among the East African States. It must be understood that the current marginalization of the common East African is aggravated by globalization and the undemocratic nature of international institutions like the World Trade Organization (WTO), thus the need for a regional bloc to enhance East Africa's lobbying and advocacy power. Greater networking of East Africans is needed to ensure that a regional agenda finds space in the global processes and concrete strategies are developed for ensuring a more human-needs centred approach. It is hoped that regionalism would enhance the equitable, proper and transparent utilisation of resources, compliment the demand for accountable and democratic governance with responsible governments that protect the rights of the individual. Clearly, one major challenge is how to bring regional treaties and agreements to the understanding of the citizenry. In this area, Kituo Cha Katiba (KCK) in collaboration with the EAC is simplifying the EAC Treaty to make it readily understandable by the wananchi, who are the ultimate beneficiaries of the fruits of regionalism.

Additionally, as a regional center for constitutional development, KCK has taken the initiative to document the State of Constitutional Development in East Africa. It reviews court rulings, government policies and Parliamentary legislation, among others, in order to audit the progress made, and constraints faced, in the region, to ensure that constitutional questions gain publicity and popular usage and discourse. It is hoped that the review shall act like a mirror and resource through which civil society will examine itself, compare and coordinate levels of organization and activities, celebrate the milestones on the road to constitutionalism of their respective countries and press more urgently and coherently for reluctant states and ruling parties to pursue positive change.

As recommended by the World Bank, the reversal of the decline of Africa must happen from within Africa. “Like trees, countries cannot be made to grow by being pulled upwards from the outside; they must grow from within, from their roots; [xciv] from the people of Africa. (Emphasis added)

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