Monday, May 25, 2009

Dispute Resolution for Migingo

Migingo is a small island in the middle of Lake Victoria. Recently, a row erupted over whether Kenya or Uganda controlled this island. There is excellent fishing from this island which is 3 hours from Kenya and 6 from Uganda by boat. Also, there are environmental issues that have eroded fishing conditions on Lake Victoria. A joint survey is currently being conducted that should resolve the matter within the next few months. The survey's technical team consists of representatives from both countries who will also consider legal authorities such as the 1926 British order in council, the 1995 Ugandan Constitution, and the1963 Kenyan Constitution. The dispute has created political tension for Kenya and Uganda, both members of the East African Community (EAC). Whether or not the survey resolves the matter the question arises concerning the appropriate resolution of disputes between members of an economic community. There are several options available for EAC members.

Resort to the East African Court of Justice (EACJ) is one possible avenue for dispute resolution. The EACJ was established by the East African Community Treaty (the Treaty). The Court resolves disputes submitted to it by Community partner states. Certainly, the matter could ostensibly be submitted there. However, the Court must resolve the dispute AND promote the objectives of the Community such as deepening co-operation among partner states. This does not create a conflict per se, what it does do is bifurcate the courts responsibilities which could make dispute resolution a secondary goal. That may not be helpful. In addition, the Court has few resources and it might be wise not to burden it with matters able to be resolved elsewhere.

Of course, dispute can always be submitted to the Hague or the International Court of Justice. This seems to be contrary to the creation of the purpose of the Community. The community is meant to empower each partner state through economic, political and legal co-operation. In any case, these international bodies for dispute resolution were created by the colonial powers whose efforts are often at the heart of boundary disputes in East Africa. Resort to them is a step backwards.

I wonder if it might be possible to utilise the dispute resolution scheme set up under the EAC Customs Union (Customs Union) for this dispute. One of the most attractive aspects of such regimes set up outside of National Courts is their flexibility. Parties can often agree procedural rules that create a co-operative process functioning in all parties’ interests. The Customs Union was created by the signing of the East African Community Customs Union Protocol (Protocol). All 5 partners of the EAC have now signed the Protocol. Article 41 of the Protocol contains provisions for the resolution of disputes. Annex IX of the Protocol contains the specific regulations. They are regular and provide the basics that parties require for proper dispute resolution outside the courts.

This is an imperfect suggestion as these provisions concern the resolution of custom and trade disputes. The cost however of the survey of Migingo is many billion shillings. That is a lot of money. What will happen should the survey fail to resolve the matter? There are existing methods of dispute resolution outside of the National courts that Kenya and Uganda as members of the same Community could avail themselves. There is no need to reinvent the wheel. The structure is there already.

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