What is the Future of the East African Community (EAC) Common Market Protocol? Part I -Market Access To Legal Advisory and Representation Services vis -a’-vis Recent Jurisprudence From Kenya

Introduction

There have been numerous cases  on the issue of admission of lawyers from other East African Community (EAC) countries and their  universities into the legal practice in  Kenya. These cases have  been  litigated at two levels; firstly,  at the stage of admission of students to the Advocates Training Programme (ATP) and secondly at the stage of admissions of lawyers as Advocates of the High Court of Kenya. And in a number of these  cases, the   Court of Kenya  has  decided in favour of those  seeking admission. A cursory look at   these decision reveal  that most of the directives and decisions of the Council for Legal education have  largely been faulted by the Court, found unlawful  and  discriminatory hence unconstitutional.  Whereas the main findings of the Courts tend to  rely on the Constitution of Kenya , there  are isolated cases where the Courts have  cited the  Treaty Establishing the EAC  as ousting  the ability of the CLE to block citizens from other EAC countries from practicing law in Kenya. 

This  two-part writeup seeks to  trace the commitments  made by Kenya under the EAC Treaty  especially those that affect legal practice, the decisions made by the courts so far and also a discussion on why  it may be  an uphill task for Kenya to run away from these commitments.

Kenya’s Commitment(s) under the  EAC  in Trade  in  Legal Services.

The EAC  is grounded on 5 integration pillars, among them the Common  Market  as is established under Article 76 of the   EAC Treaty. Common market under the EAC integration pillars, is second in line after the realization  of the Customs Union in 2010 and after which there will be the Monetary Union and  ultimately the Political Federation.

In its truest form therefore Common Market entails ensuring that certain freedoms are realized with EAC and these include  freedom of movement of  goods, freedom of movement of persons , freedom  of movement of  workers/ labour, Right of establishment , Right of residence, Right of Movement of (https://www.eac.int/common-market). It cannot be gainsaid that legal services falls under the stated auspices.

The  Article 76 mentioned earlier  bestowed upon the Partner States to conclude the Common  Market Protocol, which  is the foundation of the Common Market.

The Basis of the Common Market

The principle of common market is steadily anchored on  the Treaty’s provision on Treaty’s Article 126 om “Legal and Judicial Affairs”. Article 126(2) calls upon the Partners states use their appropriate national institutions to establish common syllabus for training of lawyers and  common examination standards leading to licensing of lawyers ,it also calls for harmonization of national laws and   revival of the East Africa Law Reports.  

All this was of course aimed as b aimed at “widening and deepening co-operation among the Partner States in political, economic, social and cultural fields, research and technology, defence, security and legal and judicial affairs, for their mutual benefit.” As is clearly indicated in Article 5 of the Treaty.

It is  syllabus and the  common examinations that seem be at play in some  of the disputes witnessed, especially before the Kenya Courts.

The Common Market Protocol (CMP)

The 60-page Protocol  covers various issues including services. It establishes the principles in Article 3  which  include non-discrimination of  nationals of  other partner states based on nationality, observing Most Favourable nation (MFN) treatment, transparency and information sharing.

Perhaps what is  more relevant in as far as legal services are concerned, is Article 11  of “Harmonization and Mutual Recognition of Academic and Professional Qualifications. Article 11(1)  clearly provides that to ensure free movement of labour within the Common Market, the partner stakes undertook to  a mutually recognize the academic and professional qualifications granted, experience obtained, requirements met, licences or certifications granted, in other Partner States; and b) to harmonize their curricula, examinations, standards, certification and accreditation of educational and training institutions.  

It is the above that has been  a guiding principle that the various courts have been applying in making this determination regarding the admission of advocates. It would appear within the EAC, it is Kenya  that has achieved near compliance with both the treaty and the Protocol, at least via  her progressive legislations.

Kenya’s Relevant  Legislation EAC Treaty Compliant- A Look at the Kenya’s Advocates Act  

We cannot belabor the fact that the EAC Partner states are bound by the Treaty and  indeed expected to reform their national legislations to operationalize the  different clause. The ethos and spirit of  the East African Community is actually derived from Article 5 of the Treaty expecting the   development of  policies and programmes aimed at widening and deepening co-operation among the Partner States in political, economic, social and cultural fields, research and technology, defence security and legal and judicial affairs, for their mutual benefit. http://www.eala.org/documents/category/eac-treaty)

Article 2(6)  of Kenya’s constitution provides that any treaty or convention ratified by Kenya shall form part of the law of Kenya. By implication therefore the  EAC Treaty is part of the laws of Kenya.

Accordingly, in a bid to align its relevant legislation with Article 76 of the EAC Treaty and the Common Market Protocol in  regards to trade in  legal services and legal education standards  Kenya’s Parliament needed to amend the advocates Act.

Statute Law Miscellaneous (Amendments) Act, 2012, No. 12 of 2012 

The EAC initially had Kenya Uganda and Tanzania. And the Kenya’s Advocates Act had already provided under section 11 for modalities of ensuring foreign lawyers practice in Kenya. Rwanda and Burundi joined much later and there was the need to  regularize the enabling  legislation to the fold. Hence the Advocates   Act underwent amendments in sections 12  and 13. These amendments were to  the effect that No person is to be admitted as an advocate of the High Court of Kenya unless they citizens of Kenya, Burundi , Uganda , Tanzania and  also duly qualified as under section 13 of the Advocates Act.

Section 13 on the qualifications clearly  enumerates the qualification criteria that is that one is supposed to have been eligible to be awarded a Bachelor of Laws degree at a recognized Kenyan university or a university that the Council of Legal Education has approved.; and also that one’s supposed to have been admitted to practice law in  Uganda, Burundi , Tanzania and Rwanda.  (http://kenyalaw.org:8181/exist/kenyalex/actview.xql?actid=CAP.%2016 ).

Kenya’s Jurisprudence.

As mentioned earlier , there have been many decided cases on the obligations that Kenya have toward other EAC Partner states especially  within the framework of the common market protocol and the EAC treaty. Even though  the courts have not been explicitly making reference to the Treaty as shall be seen some of  these  court decisions.

Nairobi High Court Petition 505 & 509 of 2016 (Consolidated) Jonnah Tusasirwe & 10 others vs Council of Legal Education & 3 others [2017] eklr

In this case the Petitioners who had obtained their degrees from Universities in Uganda and South Africa challenged  the legality and or constitutionality of a decision by the Council of Legal Education barring the Kenya School of Law from admitting non-Kenyans to the Advocates Training Programme(ATP). Indeed of the Petitioners was Sudanese national and therefore a citizen of a country which is part of the EAC. As  matter of fact, students from other countries had earlier  been admitted to the ATP  pursuant to sections 12 and 13 of the  Advocates Act. However, the Council of Legal Education later changed posts on the  “ recommendations “ a  task force which  in its opinion, thought these admissions   were done in “ error” hence the cases. Justice Mativo declared the decision the bar the admission constitutional and ordered that the students be admitted. What is striking about the decision was the failure of the Court to delve deeply into the  EAC Treaty and the Common Market Protocol. Nevertheless, this was a progressive decision. ( http://kenyalaw.org/caselaw/cases/view/131768).

Similarly, Justice Weldon Korir in a similar case decided in 2010 held that  that it is absurd to bar advocates who have not practiced for 5 years in other EAC countries from practicing in Kenya. The judge further said that this contradicts  the  vision of the EAC noting that  it will imply that;“Kenya has not confidence in the law and procedures governing admission of  advocates in the Partner states “(https://www.theeastafrican.co.ke/news/ea/Lawyer-trained-in-uganda-allowed-to-practise-in-kenya/4552908-5221432-dspc1w/index.html)

Nairobi High Court Petition No 69 of 2018 Naomi Ochieng Okello vs  Council of Legal Education & 3 Respondents

This is perhaps one of the unique cases  on this matter. The Petitioner in this case was an advocate of Rwanda  with a current practicing certificate and a graduate of Busoga University in Uganda. She subsequently petitioned to be admitted as an Advocate of the High Court of Kenya under sections 12 and section 13 of the  Kenya’s  Advocates and this Petition was rejected.

 The basis  of the rejection was  that the Petitioner , according to the Council for Legal Education   was from an “ unapproved “ university in accordance to section 13(1)(b) of the Advocates. Again just  as the previous case, the Petitioner argued that her being denied admission as an advocate of the High Court of Kenya breached the EAC Treaty, specifically Article 126 and the Common  Market Protocol. The Court observed that indeed section 13 of Kenia’s advocates  Act was enacted to break down the integration barriers of law practice within the  East African Community.

Again, here Justice  Weldon Korir in  allowing the Petition  observed that blocking a Kenyan who was admitted in Rwanda from being admitted in  Kenya offended not only the advocates act but also the Kenya constitution and the commitments Kenya has made at EAC.

 However as at the time of writing this piece, the Petitioner in the above case was yet be admitted as an advocate  in Kenya; the victory seems to have been short-lived as shall be seen later.

All in all, it is fair at this point that the High Court of Kenya has been at the forefront in making finding that are in  their effect, advancing the spirit of the EAC and indeed ensuring that Kenya’s commitments  within EAC remain intact.

Interestingly, some of the gains seem to have been recently reversed in a recent decision of the Court of Appeal Nairobi Court of Appeal no 96 of 2014 Law Society of Kenya v Attorney General & 2 others ( see http://kenyalaw.org/caselaw/cases/view/181561/) which Was an appeal against the High Court decision ( Majanja, J ) in Nairobi Petition 312 of 2018  Law Society of Kenya vs Attorney General & 2 Others.( http://kenyalaw.org/caselaw/cases/view/87281) The two decisions are discussed below.

Nairobi Petition 312 of 2018  Law Society of Kenya vs Attorney General & 2 Others

 The case concerned Statute Law Miscellaneous (Amendments) Act, 2012, No. 12 of 2012( which amended certain sections of theAdvocates Act). The Petitioners had  taken  issue   with the  amendments  that allowed  foreign lawyers from essentially practicing in Kenya. According to the Petitioners, this was denying Kenya’s young  lawyers opportunity to practice. The Court dismissed this Petition on the basis that  Kenya had made commitments pursuant to Annex V of the Common Market Protocol to  liberalize market services  and to offer national treatments to citizen of the EAC Countries by 2010. That as such the amendment was therefore  not unconstitutional; The Court held partly as follows;

“Article 23 of the Protocol on the Establishment of East African Community Common Market commits the partner states to implement free movement of services in a progressive manner. According to the schedule of Commitments on the Progressive Liberalization of Services contained in Annex V to the Protocol, Kenya has committed to provide market access to Legal Advisory and Representation Services in Judicial Procedures concerning other fields of law and national treatment to other citizens of the community by the year 2010. In addition to the original three Partner States, being Republics of Kenya, Uganda and Tanzania, the Republics of Burundi and Rwanda became full members of the Community in July 2007. I therefore find and hold that the amendments to sections 12 and 13 of the Advocates Act are consistent with Kenya’s treaty obligations and are not unconstitutional in the manner alluded to by the petitioner”

This was a  refreshing  decision for the  reason that the Court went deeper into the Kenya’s treaty obligations to address the issues at hand thereby lending credence to Article 2 of the Constitution which makes Treaties part of Kenya’s law.

Kenya’s Latest Court of Appeal(CA)  Decision  

We have seen earlier the EAC Treaty of legal services, the Common market Protocol and the subsequent Kenya’s High Court decisions  that have affirmed  Kenya’s obligations  with regards to the EAC.

However, in a  recent decision   the Court of Appeal overturned the High Court’s decision which has paved way for admission of lawyers from virtually all the EAC Countries to practice in Kenya.

 In Nairobi Court of Appeal  Civil Appeal No. 96 of 2014 Law Society of Kenya vs Attorney General & 2 Others   the  Law Society of Kenya ( LSK ) appealed  Justice Majanja’s decision on several grounds.

The Society argued that  the amendment to section 12 of the Advocates Act to open up trade in legal services  for non-Kenyans  without a reciprocal access for Kenyan advocates was a violation of Parliament’s legislative power and a violation of the relevant WTO agreements.  I should point out  that these Commitments made by Kenya in the Common Market Protocol did not need reciprocity; and the High Court correctly pointed out that Kenya having agreed to open  up trade in legal services to other EAC citizens, could not run away from  her obligations. This argument therefore does not stand. Further  since Constitution makes Treaty part of it, Parliament [of Kenya] was mandated to make the amendments that would give effect to the EAC Treaty. Interestingly the  Court of Appeal held  that the amendments  could not stand as there was lack of public participation.

Which Way for the Common Market in EAC?

The Court of Appeal decision  has the effect of denying lawyers form Rwanda and Burundi  a chance to practice law in Kenya. This this  has sadly brought to a halt the many progressive decisions by the High Court.

Since Kenya had made commitments, it is not far fetched to argue that non observance of these commitments especially regarding trade in legal services offends the EAC Treaty. This brings in the issue of remedies available at the East African Court of Justice. It is time this  issue was addressed by the  East African Court of Justice (EACJ). Under Article 23 of the Treaty , the EACJ is supposed to ensure adherence  to law   in the interpretation  and application of and compliance with the  Treaty.  But  even  more importantly, the legal  professionals within the EAC to think seriously about standardization and mutual recognitions. This is the only way competitiveness in services can be enhanced. But as things stand it seems Kenya is the most liberalized in this respect  and this was until the Court of Appeal  dealt a blow to the amendments discussed above.

Part II of this series will  discuss  at the commitments made by the other EAC members stares regarding trade in legal services and   whether they are aligned to what the EAC Treaty objects envisage.

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