Brief Overview

It is given that the Pandemic had ravaged the whole world  and therefore each country ideally should take measures to protect its citizenry. However, we cannot run away from the fact that  the world is  at the  moment globalized and integrated  thanks to international trade  both of goods and services. And it is this globalization,  aided by  World Trade Organization’s   myriad multilateral agreement that has seen   different regions  world  over coalesce into trading blocs, either as  Free  Trade Areas(FTAs) or Regional Economic Communities (RECs), like the East African Community. (EAC).

The EAC, which had collapsed in the 70s  due to political differences, was revamped around 1999 via the Treaty Establishing the East African Community (EAC Treaty). EAC  as  (REC), was   meant to entrench trade among the EAC  Partner States. 

Whereas  there has generally  been lack  of ambition  by the Partners States to fully implement the Treaty, there has been some form of trade within the region as the leadership has  somehow tried to stop the simmering tension from  blowing into an all-out destructive  animosity.

However, in the wake of the [Covid-19] pandemic, these tensions have resurfaced. We need therefore to look at the measures taken, and  whether  they could  lead to further frictions and   EAC’s second collapse.

The  Relevant Developments

The East African reports that Tanzania is working on ways of revamping tourism following the minimal restrictions. Tanzania could soon order reopening of ,schools and a stop to quarantine of tourism. They country is oblivious of the perils of the pandemic,  even as both Zambia and Kenya have closed their international borders for movement of people, only leaving cargo, and also when  Rwanda , Kenya and Uganda have insisted on stricter   measures with regard to truck drivers crossing the borders.

Currently, Kenya  is blocking any Tanzanians who test positive at its border from entering the country. Burundi has  ejected the WHO staff, while in  South Sudan  simply has capacity issues.

While  there  have been efforts to have  EAC speaks in one voice,  the latest  meeting on Covid-19 at EAC response only had Kenya, Uganda, Rwanda & South Sudan participating. Burundi and Tanzania did not attend this meeting which the latter later dismissed as meant for  the “Northern Corridor Countries”.

 Tensions  over tariffs and Non-Tariff Measures Common in EAC

The feuds in the EAC is not really  a new thing as there have been other squabbles before. In 2015, Kenya temporarily blocked Tanzania’s tour operators from picking tourists at the Jomo Kenyatta International Airport after it emerged that  Kenya’s tour vans had for a long time been blocked from entering Tanzania. This dispute was later resolved after talks between the two countries.

In 2018  a dispute on Rules of Origin arose between Tanzania and Kenya  concerting the  duty to be levied in confectionaries. Tanzania  had argued  the duty-free sugar imported by Kenya in August 2017 still has an impact on locally-manufactured goods and therefore all confectionery transferred from Kenya to Tanzania was to be  subjected to external tariffs. Tanzania therefore then imposed 25%  duty on confectionary from Kenya. There have been many other trade tiffs including detention of Kenya  goods in Kenya, destruction of Kenya’s day old chicks.

Recently Kenya blocked Uganda  milk from accessing her market  in a bid to protect the local farmers. According to the East African,  Uganda earlier this year rebuked  Kenya, over the continued blockage of milk exports by Uganda-based Pearl Dairies to Kenya. The obstruction in Kenya of delivery trucks carrying Pearl Dairies products  had led to immense losses.

Until this latest row, there had never been any major reported issue regarding public health matters in the region, In fact all the Partner States have hitherto been cooperating on, say, the Yellow Fever jabs  which travelers routinely get even at   the borders without complications.  This could be partly be attributed to the fact the perhaps  no one envisaged a pandemic of this magnitude, much less its effects on   movement of goods and persons at the borders.

 EAC Legal Structure Envisages Cooper  on [Public] Health  Matters

The EAC Treaty  envisages increased integration as opposed to the disintegration that the current attitude points to. Article 5  expects cooperation among Partner States in many fields including in political, economic, social ,cultural, research and technology, defence, security  and legal and judicial affairs, for mutual gain. The recent  movements  in the region are clearly undermining the expectation of the EAC  Treaty. Article 81 emphasizes  promotion of  health and protection of life.

 On Pandemics , Article 118 requires  joint action  toward protection  and control of communicable diseases, pandemics and epidemics, mass immunization and other public community health campaigns. Article 118 (e) envisages harmonization of health policies and regulations and promotion of exchange on health. Hence, the EAC should actually be co-operating  in the fight instead of  each country acting individually. The import of this is that in cases such as the current pandemic, the  region ought to have uniform guidelines aimed to combating the spread of the virus and not the bickering as  is being witnessed.

The EAC Common Market Protocol mirrors the cooperation envisaged in Article 118 of the    EAC Treaty and contains more elaborate measures that Partners States should take to ensure free movement of  people, goods and services across the region. In its preamble the Protocol sets outs its objectives  that the  Common Market is  meant for the  realisation of accelerated economic growth and development through the  attainment of the free movement of goods, persons, labour, the rights of  establishment and residence, the free movement of services and capital.

However, it is important to point out that the movement of persons , envisaged in the protocol is not absolute. A reading of Article 7 of the Protocol shows that  this movement is subject to other limitations imposed by host countries on several grounds such as  security, public policy and  health. And this is why for instance a requirement for entering Tanzania, for instance , is the Yellow fever  vaccine, or a valid certificate indicating that the traveler has had the jab. This is based on public health . Currently  some governments like Kenya are demanding the certificate of Covid-  19 test which is the bone of contention at Namanga border. Again, this s purely based on Kenya public health policies , and well within the purview of Article 7 of the EAC Common Market Protocol.  The only obligation that  the implementing  country has at this point is to notify the other countries of the measures. Again, here Kenya has notified Tanzania of the intentions to do testing at the border and only allow truckers who test negative.

Despite this , there is little  co-operation in the EAC regarding the management of this pandemic. If EAC can’t  cooperate on such important fronts, why would we even think of  enhancing integration? It is doubtful  that EAC objective as envisaged in the Treaty will be achieved any time soon.

Was Kenya  Justified in its Move?

Was Kenyan justified in taking  the  border [Covid-19] measures? The Kenya Constitution in  Article 21 mandates the state to observe ,respect, protect , promote  and fulfil the rights of its citizens including the right to health. Hence the Kenyan government was simply  acting in the best interest of its  citizens by looking inward. Whereas this was a balancing act, the Kenyan government had the responsibility of ensuring that the gains made so far in the fight against  Covid-19 are not reversed by the new imported infections from other territories.  Indeed, the Kenya was careful in its  measures not to affect the flow of goods as doing so would have outrightly offended the Customs Union Protocol , more so as regards trade facilitation and Non-Tariff Barriers, Article 13 of the Customs union protocol states that:

Except as may be provided for or permitted by this Protocol, each of the Partner States agrees to remove, with immediate effect, all the existing nontariff barriers to the importation into their respective territories of goods originating in the other Partner States and, thereafter, not to impose any new non-tariff barriers.

Further as pointed above , the measures a in place currently regarding testing of trucks drivers are in line with the Common Market Protocol  and are in fact being implemented not only by Kenya but also by Uganda and Rwanda.  Accordingly, the reaction by Tanzania to the measures by Kenya is based on a misapprehension of the objects of the EAC as contained in the Treaty and the  relevant protocols  referred to in this piece.  

It is up to the Leadership

As this drama continues the EAC Partner States need to reevaluate what they really want especially in light of the never-ending wrangles. Should this be  happening in a Regional Economic Community that is over 20 years old?  And what happens to the grand plans such as  implementation of the integration pillars, if  Partner States cannot even  agree on how to  manage  pandemics. Only time will tell.