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.
Patrick's Trade Digest 