Subregional courts in Africa: Litigating the hybrid right to free movement of persons

Subregional courts in Africa: Litigating the hybrid right to free movement of persons Abstract Human rights attorneys and civil society groups in Africa have recently focused their advocacy efforts on subregional courts associated with economic integration communities in East, West and Southern Africa. The East African Court of Justice, the Court of Justice of the Economic Community of West African States, and the Tribunal of the Southern African Development Community have received few suits challenging trade restrictions and other barriers to subregional integration. Instead, and surprisingly, the courts’ dockets are dominated by complaints alleging violations of international human rights law. This article offers the first analysis of EACJ, ECOWAS Court, and SADC Tribunal decisions concerning the free movement of persons. Freedom of movement is a hybrid legal right. It is protected in the African Charter on Human and Peoples’ Rights and in other human rights instruments, but it is also a central pillar of all regional integration systems. Free movement case law thus offers a revealing lens through which to examine how African subregional courts decide which litigants have access to justice, interpret international legal norms, and fashion the remedies awarded to successful complainants. 1. Introduction International human rights litigation in Africa is evolving in ways that few could have foreseen only a decade ago. Human rights attorneys and civil society groups now focus much of their advocacy efforts not on the judicial and quasi-judicial bodies of the African Charter human rights system1 but on subregional courts associated with economic integration communities in West, East, and Southern Africa. The subregional courts for the East African Community (EAC), the Economic Community of West African States (ECOWAS), and the Southern African Development Community (SADC) share a number of similarities.2 The three courts were created in the early 2000s to adjudicate disputes relating to each integration project’s founding legal instruments, which, among other goals, aim to reduce trade barriers; harmonize national economic, financial, social and cultural policies; and build a common market and a monetary union.3 Yet the dockets of these courts contain few cases involving tariffs, trade barriers, or other integration law issues. Instead, they are dominated by suits filed by individuals and NGOs (nongovernmental organizations) alleging violations of international human rights law by African governments. For the East African Court of Justice (EACJ) and the SADC Tribunal, the shift to human rights occurred via expansive interpretations of the integration treaties’ principles and objectives clauses.4 In contrast, the expansion into human rights by the ECOWAS Court of Justice resulted from a decision by the member states to broaden the Court’s jurisdiction.5 All three subregional courts have also experienced significant political backlashes. In SADC, the backlash was severe, resulting in the indefinite suspension of the Tribunal. In East and West Africa, both subregional courts survived. In ECOWAS, judicial reform proposals that were barely disguised rebukes of subregional judges were narrowly defeated. In the EAC, member states created a new appellate division, staffed it with more conservative judges, and narrowed the EACJ’s jurisdiction.6 Cases involving the free movement of persons offer an especially revealing lens through which to examine the African subregional courts’ distinctive approaches to access, interpretation, and remedies. Freedom of movement is a hybrid legal right. The obligation to respect the right is found both in human rights instruments and in treaties regulating economic integration, although, as this article illustrates, the scope of protection and the ability of individuals to raise claims differs in the two contexts. In Africa, the free movement of persons is protected in the African Charter7 and in other human rights instruments, but it is also a central pillar of the subregional communities in West, East, and Southern Africa.8 Unfortunately, these overlapping legal commitments are often honored in the breach. African governments regularly close international borders and refuse entry to foreign nationals, citing national security and political concerns. Unofficial barriers to cross-border travel—such as roadblocks, bureaucratic red tape, and graft by customs officials—are also commonplace.9 Violations of free movement obligations thus implicate an important obstacle to subregional integration that arises at the intersection of human rights and international economic law. Yet suits challenging such violations also implicate a core attribute of sovereignty—the power of a state to control the individuals who enters its territory. Section 2 provides the first ever review of the decisions of the three African subregional courts concerning the free movement of persons. Section 3 compares and contrasts the reasoning and outcomes in these cases. The analysis focuses on the challenges faced by litigants seeking access to the courts, the different legal instruments invoked in support of their claims, the choices made by judges when interpreting these instruments, and the remedies awarded to successful applicants. Section 4 briefly concludes, identifying avenues for future research. 2. Litigating the right to freedom of movement in SADC, ECOWAS, and the EAC African subregional courts have adjudicated several cases challenging restrictions on freedom of movement. This section reviews these cases chronologically. It begins with a 2010 SADC Tribunal admissibility ruling, then turns to 2012 and 2013 judgments of the ECOWAS Court, and concludes with three decisions of the EACJ from 2013, 2014, and 2015, two of which find violations of the right to freedom of movement. 2.1. The SADC Tribunal In United Republic of Tanzania v. Cimexpan (Mauritius) LTD and Others,10 Ajaye Jogoo, a resident alien in Tanzania and the director of a Mauritian investment company, challenged his deportation following the cancellation of a joint venture contract with the government of Zanzibar. Jogoo claimed that his family, who remained in Tanzania after his deportation, was assaulted by armed men. When Jogoo attempted to return to the country, Tanzanian immigration officials jailed him for a week and allegedly tortured him before deporting him again. Jogoo filed suit against Tanzania with the SADC Tribunal, seeking to rescind the deportation order. The state filed a preliminary objection, arguing that the Tribunal lacked jurisdiction, the applicant had not exhausted local remedies, and the admission and expulsion of aliens was not subject to judicial review.11 After rejecting the jurisdictional objection as contrary to the SADC Tribunal Protocol,12 the judges agreed that Jogoo had not exhausted domestic remedies because, even from outside Tanzania, he could have hired an attorney in the country “to challenge by judicial review the deportation order made against him, if he had so wished.”13 The Tribunal then considered the legality of the expulsion order. Although agreeing with the government that “the right to admit or to expel an alien remains squarely within the preserve of [Tanzania’s] sovereignty,” the judges conditioned the exercise of this discretion upon “the observance of minimum human rights standards[] for the treatment of aliens.”14 These minimum standards, the Tribunal reasoned, are found in “the United Nations General Assembly Declaration on the Human Rights of Individuals Who Are Not Nationals of the Country in which They Live, Resolution 40/144 (1985); read together with the Universal Declaration of Human Rights, and other international instruments.”15 More specifically, the standards “include non-discrimination on grounds of race, the prohibition of torture and of inhuman or degrading treatment or punishment, and the right to a fair trial.”16 However, because Jogoo failed to offer any evidence to support his allegations of torture or mistreatment by Tanzanian immigration authorities, his deportation “did not constitute an international delinquency.”17 The Cimexpan decision must be viewed in light of the weak legal protection of free movement in Southern Africa. The 1992 SADC Treaty includes only a vague promise to “develop policies aimed at the progressive elimination of obstacles to the free movement of . . . the peoples of the Region.”18 Not until 2005 did the member states adopt a Protocol to “facilitate” the movement of individuals, and even that unambitious legal instrument has not yet entered into force.19 Seen from this perspective, the Tribunal’s conclusion that international human rights law provides some protection to alien deportees is quite progressive. The judges had previously claimed the authority to hear human rights suits as part of their mandate to adjudicate violations of the SADC Treaty.20 But human rights law imposes few constraints on the expulsion of non-nationals. Indeed, the judges cite only nonbinding declarations and scholarly writings to support the conclusion that aliens are protected against abuses such as torture and racial discrimination. In light of Jogoo’s failure to exhaust domestic remedies and inability to produce evidence supporting his alleged mistreatment, a ruling for the government seems entirely appropriate. 2.2. The ECOWAS Court In April 2004 Femi Falana and Waidi Moustapha, respectively the president and vice president of the West African Bar Association, attempted to travel overland from Nigeria to Togo for meetings of the Association. At the Nigerian border, police and immigration officials stopped the two men and blocked the road but eventually allowed them to enter Benin. The officials also allegedly harassed and attempted to extort money from other travelers. At the Togolese border, Falana and Moustapha were refused entry on the grounds that Togo “was holding its presidential election and the order was to close to the border.”21 Officials detained the two men until after the election, at which point “their assignment in Togo was not possible to be carried out.”22 Falana and Moustapha filed suit with the ECOWAS Court in October 2007, alleging violations of the right to freedom of movement guaranteed by the ECOWAS Free Movement Protocol and the African Charter.23 They asked the Court to declare that the member states “are under an obligation to remove all checkpoints, toll-gates, and obstacles to free movement” and to issue an order mandating their removal.24 In response, the states sought to dismiss the complaint on two jurisdictional grounds—first, that the 2005 Supplementary Protocol25 granting the ECOWAS Court human rights jurisdiction does not apply to events that occurred before its adoption, and second, that the plaintiffs filed suit more than three years after the events in question and beyond the Supplementary Protocol’s three-year limitations period.26 On the merits, the states argued that the facts alleged did not amount to violations of the right to free movement of persons, and that article 12 of the African Charter allows restrictions on free movement that are “provided for by law for the protection of national security, law and order, public health or morality.”27 In Falana v. Republic of Benin, the ECOWAS Court concluded that the plain language of the 2005 Supplementary Protocol extends the Court’s jurisdiction to human rights violations that occurred prior to the Protocol’s adoption.28 However, the judges limited the practical impact of that interpretation by applying the Protocol’s limitations period to bar suits—such as those alleged by Falana and Moustapha—filed more than three years after the events in question occurred.29 The Court next considered whether the limitations rule should be applied to human rights suits. Endorsing the approach adopted by a 2005 UN General Assembly resolution, the judges held that the limitations period applies “except in respect of gross violation of rights[,] which the violation in the instant case cannot be so characterized.”30 The Falana decision’s reasoning on the latter point is somewhat ambiguous. In particular, it is uncertain whether the ECOWAS Court held that an infringement of freedom of movement is per se not a gross human rights violation, or whether the facts alleged by the plaintiffs were insufficient to prove such a violation. The judges emphasized that freedom of movement “is not absolute but qualified, that is to say the right . . . though guaranteed is subject to the laws, national security, public health and morality” of the state.31 However, they also devoted an entire section of the decision to the burden of proof, concluding that “there was no restraint to the movement in Nigeria and Benin, based on the evidence of Plaintiff.”32 These statements suggest that the Court might recognize an exception to the three-year limitations period where the applicant can prove a more severe free violation of the right to freedom of movement. Even if the latter interpretation is correct, the Court’s analysis of the factual allegations in Falana is problematic in several respects. The decision begins with the unobjectionable proposition that an infringement of freedom of movement requires a showing of restraint by state officials. Yet the judges’ conclusion that “there was no form of restraint” of the plaintiffs’ movements is unpersuasive.33 Nothing in the facts suggests that Falana and Moustapha were impeded while traveling across Benin, but the two men claimed that they were stopped by officials at roadblocks near Nigeria’s border with that country. The officials did not harass or attempt to extort money from the plaintiffs, as they allegedly did to other travelers. Nevertheless, the Court does not consider whether the unofficial roadblocks—which are all too common in West Africa34—violate the “provided for by law” clause of article 12(2) of the African Charter.35 A similar critique applies to the analysis of the plaintiffs’ detention at the Togolese border. The Court recognizes this as a restraint but concludes that “the evidence was abundantly sufficient to the effect that the closure of the border was due to the Presidential Election and within the confines of the Protocol on free movement.” Yet instead of applying the necessity and proportionality standard to evaluate the legality of closing a border during a national election—a test required by the case law interpreting article 12(2)36—the Falana decision turns to a 1985 Supplementary Protocol on Free Movement, which contains the following provision: 1 Whenever a problem of internal security shall lead to the imposition of measures restricting the implementation of the [ECOWAS Free Movement Protocol], the Member State concerned shall inform the Executive Secretariat and other Member States within a reasonable period of time. 2. Whenever, for reasons of internal security, a Member State shall deem it necessary to close its borders, the Member State concerned shall inform the Executive Secretariat, and the other Member States, if necessary even after the act, regardless of the reasons justifying such measures.37 According to the Court, these paragraphs “fortify” the conclusion that Falana and Moustapha provided “insufficient” evidence to prove a violation of the right to free of movement or to justify awarding the remedies they requested.38 The judges never indicate, however, whether Togo gave the required notice. Nor, more significantly, do they explain why it is appropriate to substitute the 1985 Protocol’s self-judging approach to necessity for the African Charter’s more rights-protective necessity and proportionality test.39 The result of this implicit conflation of the two legal standards implies a de facto diminution of freedom of movement within the subregion. Whatever the shortcomings of its legal analysis, the Falana decision likely reflects the political reality in West Africa. Restrictions on migrants remain popular,40 and member states regularly close their borders before and during national elections.41 Given this political climate, the judges’ reluctance to order the removal of “all checkpoints, toll-gates, and obstacles to free movement,” as the applicants requested, is understandable. The ECOWAS Court’s second decision concerning the free movement of persons, Balde v. Republic of Senegal,42 hewed more closely to a traditional human rights analysis. The case concerned a criminal investigation of former government officials by the prosecutor of a special corruption tribunal. During pretrial proceedings, the prosecutor banned the suspects from traveling internationally.43 The officials complained to the ECOWAS Court that the investigation violated multiple human rights, including the freedom of movement. Although the Court rejected most of the officials’ allegations, it agreed that the travel ban infringed article 12 of the African Charter. Senegal sought to justify the travel ban under article 12(2). Specifically, the government argued that the suspects were a threat to public order and public safety, and that the prosecutor was authorized to issue travel ban under article 33 of the Senegalese Code of Criminal Procedure, which provides: “The Public Prosecutor shall carry out or have carried out all the necessary measures required for investigating and trying all violations of the criminal law.”44 The ECOWAS Court rejected Senegal’s argument. The judges first underscored that “[t]he right to free movement is sanctioned by various international and regional instruments,” including the African Charter.45 Turning to article 12, the Court held that the government “failed to bring evidence” that the suspects were “disrupting public order or national security.”46 Even assuming for purposes of argument that a travel ban was necessary to achieve these goals, the government could only adopt such a ban “within the dictates of the law or in compliance with a court decision,” and only if the ban was not “disproportionate in terms of the objective pursued.”47 The restriction failed both of these requirements. No provision of Senegalese law authorized the prosecutor to issue a travel ban without a court order, and the imposition of such a ban based on “mere police information” was disproportionate.48 The Court thus declared that the Senegal had violated the applicants’ right to freedom of movement, and it ordered the government to “remov[e] the legally unfounded ban imposed on the Applicants, which restrains them from going outside the national territory.”49 2.3. The EACJ Suits alleging violations of the right to free movement of persons have a relatively prominent place on the docket of the EACJ. The Court’s First Instance Division has considered three such challenges, finding violations of EAC law in two of the cases. These decisions significantly constrain the ability of governments to deny entry to the citizens of other EAC member states, to detain and expel such individuals lawfully admitted to their respective territories, and to ban international travel by their own nationals. At the same time, the Court has strictly adhered to the short two-month limitations period within which private litigants must file suit with the EACJ, barring claims that raise troubling allegations of free movement violations. Mohochi v. Attorney General of Uganda50 is the leading precedent interpreting the EAC’s free movement rules. Samwel Mohochi, a Kenyan human rights attorney, traveled to Uganda in 2011 with a delegation from the Kenyan chapter of the International Commission of Jurists. Immigration officials at Entebbe Airport refused to admit Mohochi into Uganda, although they permitted the rest of the delegation to enter the country. The officials sent Kenya Airways a “Notice to Return or Convey Prohibited Immigrant” and, after detaining Mohochi for several hours, placed him on an airplane to Kenya. The authorities never disclosed why they denied Mohochi entry into the Uganda, other than providing him with a copy of the notice.51 Mohochi promptly filed suit with the EACJ, alleging violations of free movement of persons provisions in the EAC Treaty52 and the Common Market Protocol.53 He also claimed that he had been denied due process of law contrary to the EAC Treaty’s “fundamental principles,” which include “good governance[,] adherence to the principles of democracy, the rule of law, accountability, transparency, social justice, equal opportunities . . . as well as the recognition, promotion and protection of human and peoples rights in accordance with the provisions of the African Charter on Human and Peoples’ Rights.”54 Finally, Mohochi asserted multiple violations of the African Charter, including “discrimination, freedom from arbitrary arrest and detention, the right to a fair and just administrative action, the right to information and freedoms of assembly, association and movement . . . .”55 To remedy these breaches, Mohochi asked the EACJ to declare that denying him entry without a hearing or providing reasons was illegal. He also asked for a declaration that Uganda’s Citizenship and Immigration Control Act, pursuant to which the government designated him as a “prohibited immigrant,” violated the EAC laws listed above.56 The First Instance Division initially reaffirmed prior EACJ rulings that extended the Court’s jurisdiction to interpret and apply East African Community law to all provisions of the EAC Treaty and its protocols, including the Treaty’s fundamental principles clause. The First Instance judges acknowledged that the EAC’s founding charter is not a “Human Rights Convention or a Human Rights Treaty as understood in international law,”57 and that the member states had not adopted the protocol referred to in the EAC Treaty to give the Court an express human rights jurisdiction.58 Nevertheless, the judges reiterated the settled EACJ doctrine that the “mere inclusion of allegations of human rights violations in a [complaint] will not deter the Court from exercising its interpretation jurisdiction . . . .”59 Having established its authority to hear the suit, the EACJ turned to three substantive questions: whether the EAC Treaty limits Uganda’s sovereignty to deny entry to nationals of other member states on security grounds; whether immigration officials were required to explain to Mohochi why they denied him entry; and whether Mohochi’s arrest, detention, and expulsion violated his right to freedom of movement. The Court answered each of these questions in the affirmative, finding that Uganda had breached multiple provisions of EAC law, including the human rights commitments in the Treaty’s fundamental principles clause. The reasoning and analysis in the Mohochi case are as significant as these individual holdings. The Court recognizes that Uganda, as a sovereign nation, has the “power to deny entry to . . . citizens of EAC Partner States.”60 But it must exercise this power “in accordance with the law,” including Community rules guaranteeing the right to freedom of movement: [B]y accepting to be bound by [the EAC Treaty and Common Market Protocol,] Uganda also accepted that her sovereignty to deny entry to persons, who are citizens of the Partner States, becomes qualified and governed by the same and, therefore, could no longer apply domestic legislation in ways that make its effects prevail over those of Community law. Sovereignty, therefore, cannot not take away the precedence of Community law, cannot stand as a defence or justification for non[-]compliance with Treaty obligations and neither can it act to exempt, impede or restrain Uganda from ensuring that her actions and laws are in conformity with requirements of the Treaty or the [Common Market] Protocol.61 The Court next examined article 7 of the Common Market Protocol, which “guarantee[s] the free movement of persons who are citizens of the other Partner States,” including the visa-free entry into, free movement and residence within, and exit from the territory of other EAC member states.62 These guarantees are, however, “subject to limitations imposed by the host Partner State on grounds of public policy, public security or public health.”63 Invoking this clause, Uganda argued that its decision to exclude Mohochi was “in the best interest of [the country’s] national security,” and furthered the “security interest of the people of the [EAC].”64 The First Instance Division was unpersuaded. Uganda never explained how Mohochi posed a security risk; instead it merely “asserted that the Court should consider the circumstances during the wind of terrorism.”65 In addition, allowing Mohochi to “just be left to await the next flight” without arresting him suggested that he was “known to be harmless.”66 Uganda also failed to notify the other EAC member states of the limitation on free movement, as the Common Market Protocol requires.67 In sum, the government provided no evidence that the “Applicant indeed constituted a real threat to regional security.”68 The EACJ also concluded that Ugandan officials were required to inform Mohochi of the basis for his exclusion and to provide him an opportunity to challenge that decision. According to the Court, the EAC Treaty’s fundamental principles clause includes an obligation to provide “due process” to individuals denied entry into a member state’s territory.69 Such process requires “notice and the right to a fair hearing before a tribunal.”70 Uganda was thus under “a duty to give [Mohochi] sufficient reasons for denying him entry, declaring him a prohibited immigrant and removing him from Uganda.” They also “had a duty to afford him a fair opportunity to be heard, and, as they made their decisions about him, to take into consideration whatever he had to say.”71 The government breached these duties, instead using “kangaroo methods for want of a lawful procedure by which to swiftly return the Applicant to Kenya.”72 Finally, the First Instance Division found that Ugandan immigration officials had violated Mohochi’s right to freedom of movement. “It is undeniable, that [the Applicant] was taken into custody, deprived of his liberty and was not a free man between 9am and 3pm.”73 In holding this conduct to be illegal, the EACJ underscored the connection between human rights and the free movement of persons and their mutual importance to the East African integration project. Detention is indeed deprivation of liberty. When it is illegal it is not only an infringement of the freedom of movement, but also an act that undermines one’s dignity. Furthermore, when a citizen of a Partner State is illegally detained in another Partner State, with no right to be informed why or to be heard in his defence, and the reasons cannot be disclosed, even in a court of law, it is not just a violation of the Treaty, it is indeed a threat to integration.74 The Court concluded by granting all of Mohochi’s requests for declaratory relief, including a declaration that Uganda’s Citizenship and Immigration Control Act was “rendered inoperative and ha[s] no force of law” to the extent that the Act conflicts with EAC free movement rules.75 The EACJ’s ringing endorsement of freedom of movement in the Mohochi case is all the more striking in light of the ongoing terrorist attacks by Muslim extremists in East Africa—a backdrop only hinted at in the decision itself. On July 11, 2010, the terrorist group Al-Shabaab claimed responsibility for two bombings in Kampala, Uganda that killed seventy-four people.76 Soon after the attacks, Ugandan officials arrested twelve Muslim suspects from Kenya. They later detained Al-Amin Kimathi, a Muslim human rights advocate from Kenya and the suspects’ legal counsel, during a visit to Uganda for a hearing in the case in September 2010.77 Mohochi belonged to several human rights organizations that publicly condemned Kimathi’s detention. Other individuals affiliated with these groups were denied entry into Uganda.78 This suggests that the state may have excluded Mohochi because of his involvement in the campaign to free Kimathi.79 These same events triggered a second EACJ free movement suit by another Kenyan human rights attorney, Mbugua Mureithi Wa Nyambura, who, together with Kimathi, represented several suspects charged in the Kampala bombings.80 Unlike Mohochi, Nyambura was permitted entry into Uganda. But only a few hours later he was arrested at gunpoint, harassed, imprisoned with his clients for two days, and then expelled from the country without explanation.81 Also unlike Mohochi, Nyambura did not file suit with the EACJ for more than fourteen months after these events—well beyond the two-month limitations period specified in the EAC Treaty.82 The First Instance Division applied settled EACJ case law requiring the dismissal of suits filed outside the limitations period. Nyambura sought to excuse the delay by arguing that “he wanted to be told before he initiated [the case] when, where, why, and by whom he had been detained.”83 The judges categorically rejected this argument, citing the allegations in the complaint to show that Nyambura was aware of all information needed to file suit after his expulsion from Uganda. They also quoted from an earlier decision of EACJ Appellate Division, Attorney General of Uganda v. Omar, which held that “[t]he principle of legal certainty requires strict application of” the limitations period, and that the EACJ does not—unlike international human rights courts and review bodies—have any power to “to extend, to condone, to waive or to modify the prescribed time limit for any reason.”84 Stated more pointedly, the Appellate Division views the EACJ as an international judicial body that primarily adjudicates human rights claims even as it publicly disclaims an identity as an international human rights court.85 Seen from this perspective, the EACJ’s most recent free movement decision is noteworthy. The case, East Africa Law Society v. Attorney General of Burundi, concerned a challenge to the prosecution and disbarment of Isidore Rufyikiri, the president of the Bar Association of Burundi, in response to allegations of corruption.86 The free movement issues in the case related to an order by the public prosecutor prohibiting Rufyikiri from traveling outside the country.87 The East Africa Law Society, the nominal plaintiff, challenged the order as contrary to the fundamental principles in articles 6(d) and 7(2) of the EAC Treaty. The First Instance Division agreed, holding that Burundian law requires a court order to bar an individual from traveling abroad. Because the prosecutor never sought such an order, “due process of law, one of the cornerstones of the rule of law, was not respected.”88 Two aspects of the decision are significant. First, Rufyikiri did not allege violations of the Community’s free movement guarantees, perhaps because those provisions focus on obligations to the nationals of other member nations, not on duties that a government owes to its own citizens.89 By challenging the travel ban as a breach of the EAC Treaty’s fundamental principles, Rufyikiri provided an opportunity for the EACJ to extend the due process analysis in Mohochi—involving restrictions on a foreign national’s ability to enter a country—to restrictions on the freedom of a citizen to leave his or her own country. Second, human rights discourse is conspicuously absent from the decision. Whereas both the Mohochi and Nyambura cases alleged violations of multiple rights in the African Charter (as well as breaches of EAC law), such claims do not appear in Rufyikiri, although the facts in the complaint could easily have been reframed in human rights terms. Instead, the East Africa Law Society challenged the prosecutor’s failure to follow Burundian law as violation of due process, a legal principle that international human rights law also recognizes. This framing, which may reflect a strategic decision to avoid directly confronting the government at a time of widespread repression in Burundi, also suggests that advocates are becoming more comfortable with the EACJ’s preference for adjudicating human rights issues in practice but not in name. 3. Insights of the free movement of persons case law for subregional human rights litigation in Africa The decisions of the SADC Tribunal, ECOWAS Court, and EACJ on the free movement of persons offer a number of insights for how subregional judges in Africa regulate access to the courts, interpret international law, and award remedies to prevailing litigants. 3.1. Access The overarching issue that determines private litigant access to the African subregional courts is how strictly judges construe black letter admissibility requirements, such as exhaustion of local remedies, limitations periods, and standing rules. Although exhaustion is a foundational element of all three regional human rights systems and of UN treaty bodies, it was deliberately omitted from the legal instruments establishing the EACJ and the ECOWAS Court. The SADC Tribunal Protocol does require exhaustion, although the Tribunal has recognized the exceptions to exhaustion adopted by other judicial and quasi-judicial human rights bodies.90 In the Cimexpan free movement suit, however, the applicant made no attempt to exhaust domestic remedies following his expulsion from Tanzania. This precluded the SADC Tribunal from applying any exception to the exhaustion requirement. The judges nevertheless carefully explained what the applicant could have done to satisfy the Tribunal’s admissibility rule. Even more important, the judges chose to address the merits of the case. Although the facts in Cimexpan revealed no violation of the applicant’s rights, the judges’ careful treatment of the admissibility and merits signaled to future litigants both how to access the Tribunal as well as the kinds of human rights claims that would likely receive a sympathetic hearing. The ECOWAS Court in the Falana case also broadcast a signal to future litigants—although the message was quite different. Since its first case, the Court has eschewed opportunities to adopt expansive or novel interpretations of international human rights law. Yet, when applicants present well-supported allegations of established human rights, such as slavery, torture, and arbitrary detention—and, in the Balde case, freedom of movement—the Court has not shied away from issuing bold judgments against national governments.91 The judge-made exception to the three-year limitations period recognized in Falana is consistent with this approach. Going forward, the exception will screen out stale complaints alleging less serious violations of individual rights while giving ECOWAS judges leeway to determine which abuses qualify as gross violations that can be reviewed on the merits even if they were not timely filed. In contrast to their West African colleagues, EACJ judges have refused to imply exceptions to the EAC’s limitations period. The judges are surely aware—not least because many continue to serve as national judges in their home countries during their part-time appointments to the EACJ92—of the many barriers that impede individuals from going to court, including understanding their legal rights, determining whether those rights have been violated, gathering facts and evidence, and finding suitable counsel to represent them. Why, then, would the judges refuse to recognize any exceptions to the very short two-month window during which litigants must perform all of these difficult tasks? The answer is that a reduced limitations period was part of an earlier backlash against the EACJ.93 By amending the EAC Treaty to narrow the Court’s authority, the member states laid down a series of red lines that East African judges have been loath to cross. Doing so preserves the EACJ’s independence to interpret the Treaty in cases that are properly before it. Strict adherence to the limitations period also privileges attorneys, such as the East Africa Law Society, who are repeat players in human rights litigation before the Court and are familiar with its procedural restrictions. But this strict approach to limitations may also hamper the EACJ’s ability to cultivate a broader set of lawyers and civil society groups.94 3.2. Interpretation Subregional courts in West, East and Southern Africa have adopted differing interpretations of the Community and human rights instruments that protect freedom of movement. Although the small number of cases decided to date precludes drawing any definitive conclusions, there are several plausible explanations for the courts’ divergent interpretive approaches in these cases. First, the rules governing the free movement of persons vary significantly across the three subregions. The rules are weakest in SADC, which, as noted above, recognizes free movement as only an aspirational goal pending the entry into force of an anemic protocol on that topic. Free movement is somewhat more strongly protected in ECOWAS, which has adopted a blueprint to expand free movement in a series of protocols. The EAC has the most expansive free movement rules. Its Common Market Protocol guarantees free movement for all individuals, including workers and their families, adopts a program to harmonize identity documents and labor policies, and recognizes the rights of residence and establishment for non-nationals.95 Seen from this perspective, it is hardly surprisingly that the EACJ, in the Mohochi and Rufyikiri decisions, provided the most robust interpretation of subregional free movement of persons rules. And it is equally apparent why neither the applicant nor the SADC judges in the Cimexpan case so much as mentioned a Community right to free movement in a suit challenging the expulsion of a national of one SDAC member state by another member state. A second factor that illuminates the differing interpretations is the scope of each court’s subject matter jurisdiction. The SADC Tribunal Protocol, prior to its revision in 2014,96 was the most capacious of the international instruments establishing the three courts. The Protocol gave the Tribunal broad authority to “develop its own Community jurisprudence having regard to applicable treaties, general principles, and rules of public international law.”97 The Protocol’s expansive mandate may explain why the judges in Cimexpan endorsed soft law and scholarly writings urging recognition of minimum human rights protections for foreign nationals. Turning to West Africa, the 2005 Supplementary Protocol gives the ECOWAS Court express authority to review human rights suits filed by individuals. The Protocol does not, however, indicate which human rights the judges may apply, nor, more significantly, does it grant jurisdiction over private litigant suits alleging violations of the ECOWAS Treaty or other Community rules. Although the Court can interpret these legal instruments in suits between member states or between a member state and a Community institution, no such case has ever been filed.98 The bifurcation of the ECOWAS Court’s jurisdiction sits uneasily with the dual protection of free movement of persons in both the African Charter and ECOWAS protocols. It suggests that whether the judges hear a case depends on whether private litigants frame their complaints as human rights violations rather than breaches of subregional free movement rules—even if the facts underlying those complaints are identical. The bifurcation of the Court’s jurisdiction may also explain the contrasting interpretative approaches in the Falana and Balde cases. The former suit, which challenged formal and unofficial barriers to travel across West Africa, was framed primarily as a breach of ECOWAS free movement rules; the latter, involving a ban on all foreign travel applied to a state’s own citizens, was litigated exclusively on human rights grounds. The EACJ’s jurisdictional mandate cuts in the opposite direction. The EAC Treaty provides East African judges with unequivocal authority to interpret all aspects of Community law. In contrast, the judges’ power to entertain human rights suits is more tenuous and continues to be challenged by governments. The Court has justified its jurisdiction over such suits by citing the references to human rights in the Treaty’s fundamental principles clause. Yet as the Appellate Division’s Omar judgment reveals, the EACJ has refrained from adopting the pro-applicant doctrinal innovations that regional human rights tribunals have embraced because it lacks an express human rights mandate. In cases alleging violations of the right to freedom of movement, however, there is less need for such caution due to the robust protections of that right in EAC law. The result is that EACJ judges have adopted bold legal rulings that forcefully condemn arbitrary restrictions on entering or leaving a member state and that label such restrictions as a dual threat—to individual liberty and to subregional integration. 3.3. Remedies The relief that international courts provide to prevailing litigants depends on a range of factors, including the kinds of remedies the court is authorized to award, the nature and extent of the applicant’s injuries, and the judges’ (often unarticulated) sense of whether the defendant—usually a state or government actor—is likely to comply with the court’s orders. As this last factor suggests, remedies enable international judges to modulate the political impact of their rulings, including decisions that expansively interpret substantive rules or judicial access provisions. A state that loses a case but need not do much to comply with the judgment against it is, all other things equal, less likely to challenge that judgment or incite a backlash against the judges who issued the decision. The most common remedy requested by the applicants in the subregional free movement cases was a declaration that the travel restrictions infringed human rights law and/or Community law. The ECOWAS Court and EACJ, the two courts that ruled in favor of the applicants, readily granted declaratory relief.99 But the judges went further. In Balde, the ECOWAS Court ordered Senegal to remove the travel ban.100 And in Mohochi, the EACJ issued an order asserting that the offending Ugandan legislation was “rendered inoperative and ha[d] no force of law” to the extent that the statute conflicted with the EAC Treaty and Protocols.101 Whereas the former remedy applies only to a single individual, the latter has a much wider legal and political impact. The EACJ’s bolder remedial order is consistent with its capacious interpretation of East Africa’s more robust protection of the free movement of persons, discussed above. The Court did not, however, grant all of the relief that the applicant requested. Its declaratory orders were more temperate in tone than those Mohochi had sought. The judges also emphasized that Uganda’s Citizenship and Immigration Control Act remains applicable “where citizens of other nations, except the Partner States, are concerned.”102 Finally, the EACJ declined to award costs to Mohochi because he had filed suit “to highlight, contest and cause resolution to an issue of regional concern rather than to seek material restitution . . . from the Republic of Uganda.”103 Due to the “public interest” nature of the litigation, which would “enrich and benefit Community jurisprudence,” the case was “a fitting one where each party should bear their costs.”104 In contrast to their colleagues in East Africa, the ECOWAS judges in Balde avoided invalidating a domestic statute by construing Senegalese law as requiring a court to issue a travel ban. This interpretation seems entirely reasonable. But it is also consistent with the ECOWAS Court’s cautious approach to remedies in other high-profile cases, which favor modest damage awards and declarations of violations over injunctions and orders striking down national legislation.105 4. Conclusion The free movement of persons case law of the SADC Tribunal, ECOWAS Court, and EACJ illustrate some of the challenges faced by international judicial bodies that adjudicate human rights cases but were not initially established to hear such suits. The discrepancy between the courts’ originally intended functions and their actual practice helps to explain the different reasoning and results of decisions concerning the hybrid right to freedom of movement. That mismatch also suggests that the subregional courts are likely to chart courses that diverge from the relatively expansive approaches to access, interpretation, and remedies adopted by human rights tribunals in Africa, the Americas, and Europe. There are three plausible explanations for this divergence which suggest fruitful areas for future research. First, the courts in West, East, and Southern Africa operate at the interface of international human rights law and subregional integration law, an intersection that colors their approach to adjudication in distinctive ways. Second, the access rules, interpretive authority, and remedial powers of the three courts are less a product of rational design than the result of evolving, piecemeal, and sometimes inconsistent decisions by governments whose support for subregional integration—and for the role of international judges in the integration process—waxes and wanes over time. Third, all three courts have experienced significant political backlashes during their early years. The outcomes of these backlashes varied, but each has left an indelible mark on subregional judges, in particular on how bold or timid they are in their still-evolving approaches to access, interpretation, and remedies. Footnotes 1 African (Banjul) Charter on Human and Peoples’ Rights, June 27, 1981, 1520 U.N.T.S. 217, 21 I.L.M. 58 (1982) [hereinafter African Charter]. 2 This article does not discuss another African subregional integration system, the Common Market for Eastern and Southern Africa (COMESA), which also protected free movement of persons, because its Court of Justice has primarily adjudicated disputes involving COMESA employees. See James Thuo Gathii, Subregional Court or Employment Tribunal? The Legacy and Legitimacy of the COMESA Court of Justice, inThe Legitimacy of International Trade Tribunals (Robert Howse et al. eds., forthcoming). 3 For additional discussion of the origins of the three subregional communities, including member states, supranational institutions, and differing approaches to regulating the free movement of persons, seeJames Thuo Gathii, African Regional Trade Agreements as Legal Regimes (2011); Kofi Oteng Kufuor, The Institutional Transformation of the Economic Community of West African States (2006); Peter Mudungwe, Promoting Free Movement of People in Southern Africa: A Case for Ratification of the Protocol on the Facilitation of Movement of Persons in the SADC Region (ADPC Res. Rep. No. 2016/03), available athttp://www.diaspora-centre.org/wp-content/uploads/2016/03/Research-Report-Promoting-Free-Movement-of-People-in-SADC.pdfhttp://www.diaspora-centre.org/wp-content/uploads/2016/03/Research-Report-Promoting-Free-Movement-of-People-in-SADC.pdf. 4 See James Gathii, Mission Creep or a Search for Relevance: The East African Court of Justice’s Human Rights Strategy, 24 Duke J. Comp. & Int’l L. 249, 250 (2014). 5 See Karen J. Alter, Laurence R. Helfer, & Jacqueline McAllister, A New International Human Rights Court for West Africa: The ECOWAS Community Court of Justice, 108 Am. J. Int’l L. 737, 737–739 (2013). 6 See Karen J. Alter, James T. Gathii, & Laurence R. Helfer, Backlash Against International Courts in West, East and Southern Africa: Causes and Consequences, 27 Eur. J. Int’l L. 293 (2016). In August 2014, SADC member states adopted a new protocol that strips the SADC Tribunal of private litigant access. The Protocol has yet to enter into force. In the meanwhile, the Tribunal remains suspended. Id. at 314. 7 The African Charter provides in relevant part: 2. Every individual shall have the right to leave any country including his own, and to return to his country. This right may only be subject to restrictions, provided for by law for the protection of national security, law and order, public health or morality. . . . 4. A non-national legally admitted in a territory of a State Party to the present Charter, may only be expelled from it by virtue of a decision taken in accordance with the law. African Charter, supra note 1, art. 12. 8 The EAC, ECOWAS, and SADC have each adopted instruments regarding the free movement of Community citizens among their respective member states. See, e.g., Protocol A/P.1/5/79 Relating to Free Movement of Persons, Residence and Establishment, art. 3 (May 29, 1979) [hereinafter ECOWAS Free Movement Protocol]; Protocol on the Establishment of the East African Community Common Market, art. 7 (Nov. 20, 2009) [hereinafter EAC Common Market Protocol]; Treaty of the Southern African Development Community, art. 5(2)(d) (Aug. 17, 1992) [hereinafter SADC Treaty]. 9 Nat’l Ass’n of Nigerian Traders, Sovereignty, Supranationality and Trade: The Case of ECOWAS Laws, 2 ECOWAS Vanguard 7 (Feb. 2013) [hereinafter Sovereignty, Supranationality and Trade] (on file with author). 10 Case No. SADC (T) 01/2009 (June 11, 2010). 11 Id. at 6. 12 Article 14 of the Protocol provides that the Tribunal “shall have jurisdiction over all disputes and all applications referred to it in accordance with the [SADC] Treaty and this Protocol which relate to . . . the interpretation and application of the Treaty.” Protocol on the Tribunal and Rules thereof (2000) [hereinafter SADC Tribunal Protocol], available athttp://www.sadc.int/files/1413/5292/8369/Protocol_on_the_Tribunal_and_Rules_thereof2000.pdf. 13 Cimexpan, Case No. SADC (T) 01/2009, at 6. 14 Id. at 8. 15 Id. at 7. 16 Id. at 7. 17 Id. at 8. 18 SADC Treaty, supra note 8, art. 5(2)(d). 19 [SADC] Protocol on Facilitation of Movement of Persons, Aug. 18, 2005 (not yet in force). Only five SADC member states have ratified the Protocol, fewer than the nine required for its entry into force. 20 Alter, Gathii, & Helfer, supra note 6, at 306–309. 21 Falana v. Republic of Benin, ECW/CCJ/APP/10/07, Judgment ¶ 3 (Jan. 24, 2012). 22 Id. 23 ECOWAS Free Movement Protocol, supra note 8, art. 2(1) (“The Community citizens have the right to enter, reside and establish in the territory of Member States.”); id. art. 3(2) (“A citizen of the Community visiting any Member State for a period not exceeding ninety (90) days shall enter the territory of that Member State through the official entry point free of visa requirements.”); African Charter, supra note 1, art. 12(2) (“Every individual shall have the right to leave any country including his own, and to return to his country.”). 24 Falana, ECW/CCJ/APP/10/07 ¶ 4. 25 Supplementary Protocol A/SP1/01/05 Amending the Preamble and Articles 1, 2, 9 and 30 of Protocol (A/P.1/7/91) Relating to the Community Court of Justice, Jan. 19, 2005 [hereinafter 2005 Supplementary Protocol], available athttp://www.courtecowas.org/site2012/pdf_files/supplementary_protocol.pdf. 26 Falana, ECW/CCJ/APP/10/07 ¶¶ 8–11. 27 African Charter, supra note 1, art. 12(2). 28 Falana, ECW/CCJ/APP/10/07 ¶¶ 27–28. 29 2005 Supplementary Protocol, supra note 25, art. 9(3) (“Any action by or against . . . any Member of the Community shall be statute barred [sic] after three (3) years from the date when the right of action arose.”). 30 Falana, supra note 21 ¶ 30 (citing Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, G.A. Res. 60/147, U.N. GAOR, 60th Sess. U.N. Doc. A/RES/60/147 (Dec. 16, 2005)). The resolution provides in relevant part: “Where so provided for in an applicable treaty or contained in other international legal obligations, statutes of limitations shall not apply to gross violations of international human rights law and serious violations of international humanitarian law which constitute crimes under international law.” Id. ¶ 6 (emphasis added). 31 Falana, ECW/CCJ/APP/10/07 ¶ 33. 32 Id. ¶ 42. 33 Id. ¶ 33. 34 Sovereignty, Supranationality and Trade, supra note 9. 35 African Charter, supra note 1, art. 12(2) (permitting restrictions on the right to leave any country only when such restrictions are “provided for by law for the protection of national security, law and order, public health or morality”). 36 When reviewing restrictions under the African Charter’s “claw-back” clauses, including restrictions on free movement of persons under article 12(2), the African Commission “weighs the impact, nature and extent of the limitation against the legitimate state interest serving a particular goal,” which must be “strictly proportionate with and absolutely necessary for the advantages which are to be obtained.” Frans Viljoen, International Human Rights Law in Africa 331 (2d ed. 2012). 37 Supplementary Protocol on the Code of Conduct for the Implementation of the Protocol on Free Movement of Persons, the Right of Residence and Establishment, A/SP 2/7/85, art. 8 (July 6, 1985), quoted in Falana, supra note 21 ¶ 43. 38 Falana, ECW/CCJ/APP/10/07, ¶¶ 43–44. 39 The 1985 Protocol appears to permit a member state itself to determine whether closing its borders is a necessary measure. This differs from article 12 of the African Charter, which subjects the necessity and proportionality of state restrictions on freedom of movement to review by the African Commission and Court of Human and Peoples’ Rights. 40 See, e.g., Kate D. A. Costa, Nigeria: Ghana Threatens to Expel Foreign Retailers, Daily Trust, June 29, 2012, available athttp://allafrica.com/stories/201206290777.html; Good v. Botswana, Comm. No. 313/05, African Comm’n on Human Rights, 28th Activity Report ¶ 205 (2009–2010) (recognizing “the challenges that are faced by African countries that might push them to resort to extreme measures like deportation in order to protect their nationals and economies from non-nationals.”). 41 See, e.g., Nigeria: Govt Closes Borders Ahead of Governorship Elections, Daily Independent (Lagos), Apr. 8, 2015, available athttp://allafrica.com/stories/201504090252.html; Ghana closes border to Togo ahead of elections, Starr FM, Apr. 24, 2015, available athttp://www.ghheadlines.com/agency/starr-fm/20150424/715090/ghana-closes-border-to-togo-ahead-of-elections; Umaro Djau, Authorities Close Border as Ivory Coast Election Stalls, cnn (Dec. 3, 2010), available athttp://www.wibw.com/home/headlines/Authorities_close_border_as_Ivory_Coast_election_stalls_111265834.html. 42 ECW/CCJ/APP/22/12, Judgment (Feb. 22, 2013). 43 Id. ¶ 9. 44 Id. ¶ 41. 45 Id. ¶ 56. 46 Id. ¶¶ 58, 61. 47 Id. ¶ 58. 48 Id. 49 Id. ¶ 77. 50 Ref. No. 5 of 2011, EACJ First Instance Division, Judgment (May 17, 2013). 51 Id. ¶¶ 2–5. 52 Treaty for the Establishment of the East African Community, 2144 U.N.T.S. 255 (Nov. 30, 1999) [hereinafter EAC Treaty], art. 104 (“[The] Partner States agree . . . to achieve the free movement of persons.”). 53 EAC Common Market Protocol, supra note 8, art. 7.1 (“The Partner States hereby guarantee the free movement of persons who are citizens of the other Partner States.”). 54 EAC Treaty, supra note 52, art. 6(d); see also id. art. 7(2) (“The Partner States undertake to abide by the principles of good governance, including adherence to the principles of democracy, the rule of law, social justice and the maintenance of universally accepted standards of human rights.”). 55 Mohochi, Ref. No. 5 of 2011, ¶ 9. 56 Id. ¶ 11. 57 Id. ¶ 28. 58 EAC Treaty art. 27.2 provides that “[t]he Court shall have . . . human rights and other jurisdiction as . . . determined by the [EAC] Council at a suitable subsequent date. To this end, the Partner States shall conclude a protocol to operationalise the extended jurisdiction.” 59 Mohochi, Ref. No. 5 of 2011, ¶ 26. For an insightful discussion of the EACJ’s human rights jurisprudence, see Gathii, supra note 4, at 253–259. 60 Mohochi, Ref. No. 5 of 2011, ¶ 40. 61 Id. ¶¶ 52–53. 62 EAC Common Market Protocol, supra note 8, art. 7.2. 63 Id. art. 7.5. 64 Mohochi, Ref. No. 5 of 2011, ¶¶ 15–16. 65 Id. ¶ 96 (emphasis in original). 66 Id. ¶¶ 98, 100. 67 Common Market Protocol, supra note 8, art. 7.6 (“A Partner State imposing a limitation under paragraph 5, shall notify the other Party States accordingly.”). The EACJ described notification as “meant for the public in the Partner States to be known and be complied with by all.” Mohochi, Ref. No. 5 of 2011, ¶ 114. 68 Mohochi, Ref. No. 5 of 2011, ¶ 115. The EACJ does not explain the quantum of evidence required to justify a security exception to free movement, other than explaining that “[a] Partner State, before imposing a limitation on an individual would have to satisfy itself that the measure is merited in each particular case.” Id. 69 Id. ¶¶ 69–72. The due process requirement appears to be based on the “good governance” and “rule of law” provisions in articles 6(d) and 7(2) of the EAC Treaty. 70 Id. ¶ 72 (quoting Due Process, Black’s Law Dictionary (9th ed. 2009). 71 Id. ¶ 76 (citing State v. Royer, Case 48/75 [1976] E.C.R. I-497). 72 Id. ¶ 95. 73 Id. ¶ 105. 74 Id. ¶ 108. 75 Id. ¶ 130. 76 Josh Kron, Bombers Kill More Than 50 in Attacks in Uganda, N.Y Times, July 11, 2010, available athttp://www.nytimes.com/2010/07/12/world/africa/12uganda.html; see also Uganda Bomb Blast Kills At Least 74, The Guardian, July 11, 2010, available athttp://www.theguardian.com/world/2010/jul/12/uganda-kampala-bombs-explosions-attacks. 77 See Xan Rice, Kenyan Activist Becomes a Victim of Rendition, Time, Mar. 10, 2011, available athttp://content.time.com/time/world/article/0,8599,2057966,00.html (noting that Al-Amin Kimathi was detained on Sept. 15, 2010). 78 See Freedom for Activist Charged with Uganda Bombing, Amnesty Int’l, Sept. 12, 2011, available athttps://www.amnesty.org/press-releases/2011/09/freedom-activist-charged-uganda-bombing/ (noting that the Ugandan government denied entry to and deported “several human rights activities and lawyers who travelled to Uganda to monitor the case against Al-Amin Kimathi.”); Maxwell Masava, Kenya: Privy to Kimathi Detention. Says Jurists, The Star, Apr. 16, 2011, available athttp://allafrica.com.proxy.lib.duke.edu/stories/201104180624.html (recognizing that Uganda denied entry to other attorneys associated with Muslim human rights organizations). 79 See Lillian Onyango, Govt. Ignoring Muslims, available athttp://allafrica.com.proxy.lib.duke.edu/stories/201104180002.html (stating that four human rights activists were denied entry into Uganda in April 2011). A Ugandan court dismissed the charges against Kimathi after he spent almost a year in detention. Uganda: Charges Against Human Rights Defender Dropped, IFEX, Sept. 13, 2011, available athttps://www.ifex.org/uganda/2011/09/13/kimathi_released/. 80 Nyambura v. Attorney Gen. of Uganda, Ref. No. 11 of 2011, EACJ First Instance Division, Judgment (Feb. 24, 2014). 81 Id. ¶ 4. 82 EAC Treaty, supra note 52, art. 27.2 (“The proceedings provided for in this Article shall be instituted within two months of the enactment, publication, directive, decision or action complained of, or in the absence thereof, of the day in which it came to the knowledge of the complainant, as the case may be.”). 83 Nyambura, Ref. No. 11 of 2011, at 18. 84 Id. at 20 (quoting Attorney Gen. of Uganda v. Omar, App. No. 2 of 2012 (arising out of Ref. No. 4 of 2011), Appellate Division, Judgment ¶ 59 (Apr. 15, 2013)). 85 James Thuo Gathii, The Variation in the Use of SubRegional Integration Courts between Business and Human Rights Actors: The Case of the East African Court of Justice, 79 L. & Contemp. Probs. 37 (2016). 86 Ref. No. 1 of 2014, EACJ First Instance Division, Judgment (May 15, 2015). 87 Id. ¶¶ 93–96. 88 Id. ¶ 96. 89 E.g., Common Market Protocol, supra note 8, art. 7.1 (“The Partner States hereby guarantee the free movement of persons who are citizens of the other Partner States”) (emphasis added). 90 Campbell and Others v. Zimbabwe (Merits), Case No. SADC (T) 2/2007 (Nov. 28, 2008) ¶¶ 25–31. 91 See Alter, Helfer, & McAllister, supra note 5, at 765–766. 92 Gathii, supra note 4, at 273. 93 See Alter, Gathii, and Helfer, supra note 6, at 302–306. 94 See Gathii, supra note 85, at 45–54. 95 Common Market Protocol, supra note 8, arts. 7–14. 96 See note 6 supra. 97 SADC Tribunal Protocol, supra note 12, art. 21(b). 98 See Alter, Helfer, & McAllister, supra note 5, at 757–758. 99 As explained above, in Cimexpan the SADC Tribunal dismissed an application challenging a Tanzanian deportation order that included a request to rescind the order. 100 Balde, ECW/CCJ/APP/22/12, ¶ 77. 101 Mohochi, Ref. No. 5 of 2011, ¶ 130. 102 Id. ¶ 122. 103 Id. ¶ 125. 104 Id. ¶¶ 127–128. 105 See Alter, Helfer, & McAllister, supra note 5, at 766–767. © The Author(s) 2018. Oxford University Press and New York University School of Law. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices) http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png International Journal of Constitutional Law Oxford University Press

Subregional courts in Africa: Litigating the hybrid right to free movement of persons

Loading next page...
 
/lp/ou_press/subregional-courts-in-africa-litigating-the-hybrid-right-to-free-X6idud4g5L
Publisher
Oxford University Press
Copyright
© The Author(s) 2018. Oxford University Press and New York University School of Law. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com
ISSN
1474-2640
eISSN
1474-2659
D.O.I.
10.1093/icon/moy006
Publisher site
See Article on Publisher Site

Abstract

Abstract Human rights attorneys and civil society groups in Africa have recently focused their advocacy efforts on subregional courts associated with economic integration communities in East, West and Southern Africa. The East African Court of Justice, the Court of Justice of the Economic Community of West African States, and the Tribunal of the Southern African Development Community have received few suits challenging trade restrictions and other barriers to subregional integration. Instead, and surprisingly, the courts’ dockets are dominated by complaints alleging violations of international human rights law. This article offers the first analysis of EACJ, ECOWAS Court, and SADC Tribunal decisions concerning the free movement of persons. Freedom of movement is a hybrid legal right. It is protected in the African Charter on Human and Peoples’ Rights and in other human rights instruments, but it is also a central pillar of all regional integration systems. Free movement case law thus offers a revealing lens through which to examine how African subregional courts decide which litigants have access to justice, interpret international legal norms, and fashion the remedies awarded to successful complainants. 1. Introduction International human rights litigation in Africa is evolving in ways that few could have foreseen only a decade ago. Human rights attorneys and civil society groups now focus much of their advocacy efforts not on the judicial and quasi-judicial bodies of the African Charter human rights system1 but on subregional courts associated with economic integration communities in West, East, and Southern Africa. The subregional courts for the East African Community (EAC), the Economic Community of West African States (ECOWAS), and the Southern African Development Community (SADC) share a number of similarities.2 The three courts were created in the early 2000s to adjudicate disputes relating to each integration project’s founding legal instruments, which, among other goals, aim to reduce trade barriers; harmonize national economic, financial, social and cultural policies; and build a common market and a monetary union.3 Yet the dockets of these courts contain few cases involving tariffs, trade barriers, or other integration law issues. Instead, they are dominated by suits filed by individuals and NGOs (nongovernmental organizations) alleging violations of international human rights law by African governments. For the East African Court of Justice (EACJ) and the SADC Tribunal, the shift to human rights occurred via expansive interpretations of the integration treaties’ principles and objectives clauses.4 In contrast, the expansion into human rights by the ECOWAS Court of Justice resulted from a decision by the member states to broaden the Court’s jurisdiction.5 All three subregional courts have also experienced significant political backlashes. In SADC, the backlash was severe, resulting in the indefinite suspension of the Tribunal. In East and West Africa, both subregional courts survived. In ECOWAS, judicial reform proposals that were barely disguised rebukes of subregional judges were narrowly defeated. In the EAC, member states created a new appellate division, staffed it with more conservative judges, and narrowed the EACJ’s jurisdiction.6 Cases involving the free movement of persons offer an especially revealing lens through which to examine the African subregional courts’ distinctive approaches to access, interpretation, and remedies. Freedom of movement is a hybrid legal right. The obligation to respect the right is found both in human rights instruments and in treaties regulating economic integration, although, as this article illustrates, the scope of protection and the ability of individuals to raise claims differs in the two contexts. In Africa, the free movement of persons is protected in the African Charter7 and in other human rights instruments, but it is also a central pillar of the subregional communities in West, East, and Southern Africa.8 Unfortunately, these overlapping legal commitments are often honored in the breach. African governments regularly close international borders and refuse entry to foreign nationals, citing national security and political concerns. Unofficial barriers to cross-border travel—such as roadblocks, bureaucratic red tape, and graft by customs officials—are also commonplace.9 Violations of free movement obligations thus implicate an important obstacle to subregional integration that arises at the intersection of human rights and international economic law. Yet suits challenging such violations also implicate a core attribute of sovereignty—the power of a state to control the individuals who enters its territory. Section 2 provides the first ever review of the decisions of the three African subregional courts concerning the free movement of persons. Section 3 compares and contrasts the reasoning and outcomes in these cases. The analysis focuses on the challenges faced by litigants seeking access to the courts, the different legal instruments invoked in support of their claims, the choices made by judges when interpreting these instruments, and the remedies awarded to successful applicants. Section 4 briefly concludes, identifying avenues for future research. 2. Litigating the right to freedom of movement in SADC, ECOWAS, and the EAC African subregional courts have adjudicated several cases challenging restrictions on freedom of movement. This section reviews these cases chronologically. It begins with a 2010 SADC Tribunal admissibility ruling, then turns to 2012 and 2013 judgments of the ECOWAS Court, and concludes with three decisions of the EACJ from 2013, 2014, and 2015, two of which find violations of the right to freedom of movement. 2.1. The SADC Tribunal In United Republic of Tanzania v. Cimexpan (Mauritius) LTD and Others,10 Ajaye Jogoo, a resident alien in Tanzania and the director of a Mauritian investment company, challenged his deportation following the cancellation of a joint venture contract with the government of Zanzibar. Jogoo claimed that his family, who remained in Tanzania after his deportation, was assaulted by armed men. When Jogoo attempted to return to the country, Tanzanian immigration officials jailed him for a week and allegedly tortured him before deporting him again. Jogoo filed suit against Tanzania with the SADC Tribunal, seeking to rescind the deportation order. The state filed a preliminary objection, arguing that the Tribunal lacked jurisdiction, the applicant had not exhausted local remedies, and the admission and expulsion of aliens was not subject to judicial review.11 After rejecting the jurisdictional objection as contrary to the SADC Tribunal Protocol,12 the judges agreed that Jogoo had not exhausted domestic remedies because, even from outside Tanzania, he could have hired an attorney in the country “to challenge by judicial review the deportation order made against him, if he had so wished.”13 The Tribunal then considered the legality of the expulsion order. Although agreeing with the government that “the right to admit or to expel an alien remains squarely within the preserve of [Tanzania’s] sovereignty,” the judges conditioned the exercise of this discretion upon “the observance of minimum human rights standards[] for the treatment of aliens.”14 These minimum standards, the Tribunal reasoned, are found in “the United Nations General Assembly Declaration on the Human Rights of Individuals Who Are Not Nationals of the Country in which They Live, Resolution 40/144 (1985); read together with the Universal Declaration of Human Rights, and other international instruments.”15 More specifically, the standards “include non-discrimination on grounds of race, the prohibition of torture and of inhuman or degrading treatment or punishment, and the right to a fair trial.”16 However, because Jogoo failed to offer any evidence to support his allegations of torture or mistreatment by Tanzanian immigration authorities, his deportation “did not constitute an international delinquency.”17 The Cimexpan decision must be viewed in light of the weak legal protection of free movement in Southern Africa. The 1992 SADC Treaty includes only a vague promise to “develop policies aimed at the progressive elimination of obstacles to the free movement of . . . the peoples of the Region.”18 Not until 2005 did the member states adopt a Protocol to “facilitate” the movement of individuals, and even that unambitious legal instrument has not yet entered into force.19 Seen from this perspective, the Tribunal’s conclusion that international human rights law provides some protection to alien deportees is quite progressive. The judges had previously claimed the authority to hear human rights suits as part of their mandate to adjudicate violations of the SADC Treaty.20 But human rights law imposes few constraints on the expulsion of non-nationals. Indeed, the judges cite only nonbinding declarations and scholarly writings to support the conclusion that aliens are protected against abuses such as torture and racial discrimination. In light of Jogoo’s failure to exhaust domestic remedies and inability to produce evidence supporting his alleged mistreatment, a ruling for the government seems entirely appropriate. 2.2. The ECOWAS Court In April 2004 Femi Falana and Waidi Moustapha, respectively the president and vice president of the West African Bar Association, attempted to travel overland from Nigeria to Togo for meetings of the Association. At the Nigerian border, police and immigration officials stopped the two men and blocked the road but eventually allowed them to enter Benin. The officials also allegedly harassed and attempted to extort money from other travelers. At the Togolese border, Falana and Moustapha were refused entry on the grounds that Togo “was holding its presidential election and the order was to close to the border.”21 Officials detained the two men until after the election, at which point “their assignment in Togo was not possible to be carried out.”22 Falana and Moustapha filed suit with the ECOWAS Court in October 2007, alleging violations of the right to freedom of movement guaranteed by the ECOWAS Free Movement Protocol and the African Charter.23 They asked the Court to declare that the member states “are under an obligation to remove all checkpoints, toll-gates, and obstacles to free movement” and to issue an order mandating their removal.24 In response, the states sought to dismiss the complaint on two jurisdictional grounds—first, that the 2005 Supplementary Protocol25 granting the ECOWAS Court human rights jurisdiction does not apply to events that occurred before its adoption, and second, that the plaintiffs filed suit more than three years after the events in question and beyond the Supplementary Protocol’s three-year limitations period.26 On the merits, the states argued that the facts alleged did not amount to violations of the right to free movement of persons, and that article 12 of the African Charter allows restrictions on free movement that are “provided for by law for the protection of national security, law and order, public health or morality.”27 In Falana v. Republic of Benin, the ECOWAS Court concluded that the plain language of the 2005 Supplementary Protocol extends the Court’s jurisdiction to human rights violations that occurred prior to the Protocol’s adoption.28 However, the judges limited the practical impact of that interpretation by applying the Protocol’s limitations period to bar suits—such as those alleged by Falana and Moustapha—filed more than three years after the events in question occurred.29 The Court next considered whether the limitations rule should be applied to human rights suits. Endorsing the approach adopted by a 2005 UN General Assembly resolution, the judges held that the limitations period applies “except in respect of gross violation of rights[,] which the violation in the instant case cannot be so characterized.”30 The Falana decision’s reasoning on the latter point is somewhat ambiguous. In particular, it is uncertain whether the ECOWAS Court held that an infringement of freedom of movement is per se not a gross human rights violation, or whether the facts alleged by the plaintiffs were insufficient to prove such a violation. The judges emphasized that freedom of movement “is not absolute but qualified, that is to say the right . . . though guaranteed is subject to the laws, national security, public health and morality” of the state.31 However, they also devoted an entire section of the decision to the burden of proof, concluding that “there was no restraint to the movement in Nigeria and Benin, based on the evidence of Plaintiff.”32 These statements suggest that the Court might recognize an exception to the three-year limitations period where the applicant can prove a more severe free violation of the right to freedom of movement. Even if the latter interpretation is correct, the Court’s analysis of the factual allegations in Falana is problematic in several respects. The decision begins with the unobjectionable proposition that an infringement of freedom of movement requires a showing of restraint by state officials. Yet the judges’ conclusion that “there was no form of restraint” of the plaintiffs’ movements is unpersuasive.33 Nothing in the facts suggests that Falana and Moustapha were impeded while traveling across Benin, but the two men claimed that they were stopped by officials at roadblocks near Nigeria’s border with that country. The officials did not harass or attempt to extort money from the plaintiffs, as they allegedly did to other travelers. Nevertheless, the Court does not consider whether the unofficial roadblocks—which are all too common in West Africa34—violate the “provided for by law” clause of article 12(2) of the African Charter.35 A similar critique applies to the analysis of the plaintiffs’ detention at the Togolese border. The Court recognizes this as a restraint but concludes that “the evidence was abundantly sufficient to the effect that the closure of the border was due to the Presidential Election and within the confines of the Protocol on free movement.” Yet instead of applying the necessity and proportionality standard to evaluate the legality of closing a border during a national election—a test required by the case law interpreting article 12(2)36—the Falana decision turns to a 1985 Supplementary Protocol on Free Movement, which contains the following provision: 1 Whenever a problem of internal security shall lead to the imposition of measures restricting the implementation of the [ECOWAS Free Movement Protocol], the Member State concerned shall inform the Executive Secretariat and other Member States within a reasonable period of time. 2. Whenever, for reasons of internal security, a Member State shall deem it necessary to close its borders, the Member State concerned shall inform the Executive Secretariat, and the other Member States, if necessary even after the act, regardless of the reasons justifying such measures.37 According to the Court, these paragraphs “fortify” the conclusion that Falana and Moustapha provided “insufficient” evidence to prove a violation of the right to free of movement or to justify awarding the remedies they requested.38 The judges never indicate, however, whether Togo gave the required notice. Nor, more significantly, do they explain why it is appropriate to substitute the 1985 Protocol’s self-judging approach to necessity for the African Charter’s more rights-protective necessity and proportionality test.39 The result of this implicit conflation of the two legal standards implies a de facto diminution of freedom of movement within the subregion. Whatever the shortcomings of its legal analysis, the Falana decision likely reflects the political reality in West Africa. Restrictions on migrants remain popular,40 and member states regularly close their borders before and during national elections.41 Given this political climate, the judges’ reluctance to order the removal of “all checkpoints, toll-gates, and obstacles to free movement,” as the applicants requested, is understandable. The ECOWAS Court’s second decision concerning the free movement of persons, Balde v. Republic of Senegal,42 hewed more closely to a traditional human rights analysis. The case concerned a criminal investigation of former government officials by the prosecutor of a special corruption tribunal. During pretrial proceedings, the prosecutor banned the suspects from traveling internationally.43 The officials complained to the ECOWAS Court that the investigation violated multiple human rights, including the freedom of movement. Although the Court rejected most of the officials’ allegations, it agreed that the travel ban infringed article 12 of the African Charter. Senegal sought to justify the travel ban under article 12(2). Specifically, the government argued that the suspects were a threat to public order and public safety, and that the prosecutor was authorized to issue travel ban under article 33 of the Senegalese Code of Criminal Procedure, which provides: “The Public Prosecutor shall carry out or have carried out all the necessary measures required for investigating and trying all violations of the criminal law.”44 The ECOWAS Court rejected Senegal’s argument. The judges first underscored that “[t]he right to free movement is sanctioned by various international and regional instruments,” including the African Charter.45 Turning to article 12, the Court held that the government “failed to bring evidence” that the suspects were “disrupting public order or national security.”46 Even assuming for purposes of argument that a travel ban was necessary to achieve these goals, the government could only adopt such a ban “within the dictates of the law or in compliance with a court decision,” and only if the ban was not “disproportionate in terms of the objective pursued.”47 The restriction failed both of these requirements. No provision of Senegalese law authorized the prosecutor to issue a travel ban without a court order, and the imposition of such a ban based on “mere police information” was disproportionate.48 The Court thus declared that the Senegal had violated the applicants’ right to freedom of movement, and it ordered the government to “remov[e] the legally unfounded ban imposed on the Applicants, which restrains them from going outside the national territory.”49 2.3. The EACJ Suits alleging violations of the right to free movement of persons have a relatively prominent place on the docket of the EACJ. The Court’s First Instance Division has considered three such challenges, finding violations of EAC law in two of the cases. These decisions significantly constrain the ability of governments to deny entry to the citizens of other EAC member states, to detain and expel such individuals lawfully admitted to their respective territories, and to ban international travel by their own nationals. At the same time, the Court has strictly adhered to the short two-month limitations period within which private litigants must file suit with the EACJ, barring claims that raise troubling allegations of free movement violations. Mohochi v. Attorney General of Uganda50 is the leading precedent interpreting the EAC’s free movement rules. Samwel Mohochi, a Kenyan human rights attorney, traveled to Uganda in 2011 with a delegation from the Kenyan chapter of the International Commission of Jurists. Immigration officials at Entebbe Airport refused to admit Mohochi into Uganda, although they permitted the rest of the delegation to enter the country. The officials sent Kenya Airways a “Notice to Return or Convey Prohibited Immigrant” and, after detaining Mohochi for several hours, placed him on an airplane to Kenya. The authorities never disclosed why they denied Mohochi entry into the Uganda, other than providing him with a copy of the notice.51 Mohochi promptly filed suit with the EACJ, alleging violations of free movement of persons provisions in the EAC Treaty52 and the Common Market Protocol.53 He also claimed that he had been denied due process of law contrary to the EAC Treaty’s “fundamental principles,” which include “good governance[,] adherence to the principles of democracy, the rule of law, accountability, transparency, social justice, equal opportunities . . . as well as the recognition, promotion and protection of human and peoples rights in accordance with the provisions of the African Charter on Human and Peoples’ Rights.”54 Finally, Mohochi asserted multiple violations of the African Charter, including “discrimination, freedom from arbitrary arrest and detention, the right to a fair and just administrative action, the right to information and freedoms of assembly, association and movement . . . .”55 To remedy these breaches, Mohochi asked the EACJ to declare that denying him entry without a hearing or providing reasons was illegal. He also asked for a declaration that Uganda’s Citizenship and Immigration Control Act, pursuant to which the government designated him as a “prohibited immigrant,” violated the EAC laws listed above.56 The First Instance Division initially reaffirmed prior EACJ rulings that extended the Court’s jurisdiction to interpret and apply East African Community law to all provisions of the EAC Treaty and its protocols, including the Treaty’s fundamental principles clause. The First Instance judges acknowledged that the EAC’s founding charter is not a “Human Rights Convention or a Human Rights Treaty as understood in international law,”57 and that the member states had not adopted the protocol referred to in the EAC Treaty to give the Court an express human rights jurisdiction.58 Nevertheless, the judges reiterated the settled EACJ doctrine that the “mere inclusion of allegations of human rights violations in a [complaint] will not deter the Court from exercising its interpretation jurisdiction . . . .”59 Having established its authority to hear the suit, the EACJ turned to three substantive questions: whether the EAC Treaty limits Uganda’s sovereignty to deny entry to nationals of other member states on security grounds; whether immigration officials were required to explain to Mohochi why they denied him entry; and whether Mohochi’s arrest, detention, and expulsion violated his right to freedom of movement. The Court answered each of these questions in the affirmative, finding that Uganda had breached multiple provisions of EAC law, including the human rights commitments in the Treaty’s fundamental principles clause. The reasoning and analysis in the Mohochi case are as significant as these individual holdings. The Court recognizes that Uganda, as a sovereign nation, has the “power to deny entry to . . . citizens of EAC Partner States.”60 But it must exercise this power “in accordance with the law,” including Community rules guaranteeing the right to freedom of movement: [B]y accepting to be bound by [the EAC Treaty and Common Market Protocol,] Uganda also accepted that her sovereignty to deny entry to persons, who are citizens of the Partner States, becomes qualified and governed by the same and, therefore, could no longer apply domestic legislation in ways that make its effects prevail over those of Community law. Sovereignty, therefore, cannot not take away the precedence of Community law, cannot stand as a defence or justification for non[-]compliance with Treaty obligations and neither can it act to exempt, impede or restrain Uganda from ensuring that her actions and laws are in conformity with requirements of the Treaty or the [Common Market] Protocol.61 The Court next examined article 7 of the Common Market Protocol, which “guarantee[s] the free movement of persons who are citizens of the other Partner States,” including the visa-free entry into, free movement and residence within, and exit from the territory of other EAC member states.62 These guarantees are, however, “subject to limitations imposed by the host Partner State on grounds of public policy, public security or public health.”63 Invoking this clause, Uganda argued that its decision to exclude Mohochi was “in the best interest of [the country’s] national security,” and furthered the “security interest of the people of the [EAC].”64 The First Instance Division was unpersuaded. Uganda never explained how Mohochi posed a security risk; instead it merely “asserted that the Court should consider the circumstances during the wind of terrorism.”65 In addition, allowing Mohochi to “just be left to await the next flight” without arresting him suggested that he was “known to be harmless.”66 Uganda also failed to notify the other EAC member states of the limitation on free movement, as the Common Market Protocol requires.67 In sum, the government provided no evidence that the “Applicant indeed constituted a real threat to regional security.”68 The EACJ also concluded that Ugandan officials were required to inform Mohochi of the basis for his exclusion and to provide him an opportunity to challenge that decision. According to the Court, the EAC Treaty’s fundamental principles clause includes an obligation to provide “due process” to individuals denied entry into a member state’s territory.69 Such process requires “notice and the right to a fair hearing before a tribunal.”70 Uganda was thus under “a duty to give [Mohochi] sufficient reasons for denying him entry, declaring him a prohibited immigrant and removing him from Uganda.” They also “had a duty to afford him a fair opportunity to be heard, and, as they made their decisions about him, to take into consideration whatever he had to say.”71 The government breached these duties, instead using “kangaroo methods for want of a lawful procedure by which to swiftly return the Applicant to Kenya.”72 Finally, the First Instance Division found that Ugandan immigration officials had violated Mohochi’s right to freedom of movement. “It is undeniable, that [the Applicant] was taken into custody, deprived of his liberty and was not a free man between 9am and 3pm.”73 In holding this conduct to be illegal, the EACJ underscored the connection between human rights and the free movement of persons and their mutual importance to the East African integration project. Detention is indeed deprivation of liberty. When it is illegal it is not only an infringement of the freedom of movement, but also an act that undermines one’s dignity. Furthermore, when a citizen of a Partner State is illegally detained in another Partner State, with no right to be informed why or to be heard in his defence, and the reasons cannot be disclosed, even in a court of law, it is not just a violation of the Treaty, it is indeed a threat to integration.74 The Court concluded by granting all of Mohochi’s requests for declaratory relief, including a declaration that Uganda’s Citizenship and Immigration Control Act was “rendered inoperative and ha[s] no force of law” to the extent that the Act conflicts with EAC free movement rules.75 The EACJ’s ringing endorsement of freedom of movement in the Mohochi case is all the more striking in light of the ongoing terrorist attacks by Muslim extremists in East Africa—a backdrop only hinted at in the decision itself. On July 11, 2010, the terrorist group Al-Shabaab claimed responsibility for two bombings in Kampala, Uganda that killed seventy-four people.76 Soon after the attacks, Ugandan officials arrested twelve Muslim suspects from Kenya. They later detained Al-Amin Kimathi, a Muslim human rights advocate from Kenya and the suspects’ legal counsel, during a visit to Uganda for a hearing in the case in September 2010.77 Mohochi belonged to several human rights organizations that publicly condemned Kimathi’s detention. Other individuals affiliated with these groups were denied entry into Uganda.78 This suggests that the state may have excluded Mohochi because of his involvement in the campaign to free Kimathi.79 These same events triggered a second EACJ free movement suit by another Kenyan human rights attorney, Mbugua Mureithi Wa Nyambura, who, together with Kimathi, represented several suspects charged in the Kampala bombings.80 Unlike Mohochi, Nyambura was permitted entry into Uganda. But only a few hours later he was arrested at gunpoint, harassed, imprisoned with his clients for two days, and then expelled from the country without explanation.81 Also unlike Mohochi, Nyambura did not file suit with the EACJ for more than fourteen months after these events—well beyond the two-month limitations period specified in the EAC Treaty.82 The First Instance Division applied settled EACJ case law requiring the dismissal of suits filed outside the limitations period. Nyambura sought to excuse the delay by arguing that “he wanted to be told before he initiated [the case] when, where, why, and by whom he had been detained.”83 The judges categorically rejected this argument, citing the allegations in the complaint to show that Nyambura was aware of all information needed to file suit after his expulsion from Uganda. They also quoted from an earlier decision of EACJ Appellate Division, Attorney General of Uganda v. Omar, which held that “[t]he principle of legal certainty requires strict application of” the limitations period, and that the EACJ does not—unlike international human rights courts and review bodies—have any power to “to extend, to condone, to waive or to modify the prescribed time limit for any reason.”84 Stated more pointedly, the Appellate Division views the EACJ as an international judicial body that primarily adjudicates human rights claims even as it publicly disclaims an identity as an international human rights court.85 Seen from this perspective, the EACJ’s most recent free movement decision is noteworthy. The case, East Africa Law Society v. Attorney General of Burundi, concerned a challenge to the prosecution and disbarment of Isidore Rufyikiri, the president of the Bar Association of Burundi, in response to allegations of corruption.86 The free movement issues in the case related to an order by the public prosecutor prohibiting Rufyikiri from traveling outside the country.87 The East Africa Law Society, the nominal plaintiff, challenged the order as contrary to the fundamental principles in articles 6(d) and 7(2) of the EAC Treaty. The First Instance Division agreed, holding that Burundian law requires a court order to bar an individual from traveling abroad. Because the prosecutor never sought such an order, “due process of law, one of the cornerstones of the rule of law, was not respected.”88 Two aspects of the decision are significant. First, Rufyikiri did not allege violations of the Community’s free movement guarantees, perhaps because those provisions focus on obligations to the nationals of other member nations, not on duties that a government owes to its own citizens.89 By challenging the travel ban as a breach of the EAC Treaty’s fundamental principles, Rufyikiri provided an opportunity for the EACJ to extend the due process analysis in Mohochi—involving restrictions on a foreign national’s ability to enter a country—to restrictions on the freedom of a citizen to leave his or her own country. Second, human rights discourse is conspicuously absent from the decision. Whereas both the Mohochi and Nyambura cases alleged violations of multiple rights in the African Charter (as well as breaches of EAC law), such claims do not appear in Rufyikiri, although the facts in the complaint could easily have been reframed in human rights terms. Instead, the East Africa Law Society challenged the prosecutor’s failure to follow Burundian law as violation of due process, a legal principle that international human rights law also recognizes. This framing, which may reflect a strategic decision to avoid directly confronting the government at a time of widespread repression in Burundi, also suggests that advocates are becoming more comfortable with the EACJ’s preference for adjudicating human rights issues in practice but not in name. 3. Insights of the free movement of persons case law for subregional human rights litigation in Africa The decisions of the SADC Tribunal, ECOWAS Court, and EACJ on the free movement of persons offer a number of insights for how subregional judges in Africa regulate access to the courts, interpret international law, and award remedies to prevailing litigants. 3.1. Access The overarching issue that determines private litigant access to the African subregional courts is how strictly judges construe black letter admissibility requirements, such as exhaustion of local remedies, limitations periods, and standing rules. Although exhaustion is a foundational element of all three regional human rights systems and of UN treaty bodies, it was deliberately omitted from the legal instruments establishing the EACJ and the ECOWAS Court. The SADC Tribunal Protocol does require exhaustion, although the Tribunal has recognized the exceptions to exhaustion adopted by other judicial and quasi-judicial human rights bodies.90 In the Cimexpan free movement suit, however, the applicant made no attempt to exhaust domestic remedies following his expulsion from Tanzania. This precluded the SADC Tribunal from applying any exception to the exhaustion requirement. The judges nevertheless carefully explained what the applicant could have done to satisfy the Tribunal’s admissibility rule. Even more important, the judges chose to address the merits of the case. Although the facts in Cimexpan revealed no violation of the applicant’s rights, the judges’ careful treatment of the admissibility and merits signaled to future litigants both how to access the Tribunal as well as the kinds of human rights claims that would likely receive a sympathetic hearing. The ECOWAS Court in the Falana case also broadcast a signal to future litigants—although the message was quite different. Since its first case, the Court has eschewed opportunities to adopt expansive or novel interpretations of international human rights law. Yet, when applicants present well-supported allegations of established human rights, such as slavery, torture, and arbitrary detention—and, in the Balde case, freedom of movement—the Court has not shied away from issuing bold judgments against national governments.91 The judge-made exception to the three-year limitations period recognized in Falana is consistent with this approach. Going forward, the exception will screen out stale complaints alleging less serious violations of individual rights while giving ECOWAS judges leeway to determine which abuses qualify as gross violations that can be reviewed on the merits even if they were not timely filed. In contrast to their West African colleagues, EACJ judges have refused to imply exceptions to the EAC’s limitations period. The judges are surely aware—not least because many continue to serve as national judges in their home countries during their part-time appointments to the EACJ92—of the many barriers that impede individuals from going to court, including understanding their legal rights, determining whether those rights have been violated, gathering facts and evidence, and finding suitable counsel to represent them. Why, then, would the judges refuse to recognize any exceptions to the very short two-month window during which litigants must perform all of these difficult tasks? The answer is that a reduced limitations period was part of an earlier backlash against the EACJ.93 By amending the EAC Treaty to narrow the Court’s authority, the member states laid down a series of red lines that East African judges have been loath to cross. Doing so preserves the EACJ’s independence to interpret the Treaty in cases that are properly before it. Strict adherence to the limitations period also privileges attorneys, such as the East Africa Law Society, who are repeat players in human rights litigation before the Court and are familiar with its procedural restrictions. But this strict approach to limitations may also hamper the EACJ’s ability to cultivate a broader set of lawyers and civil society groups.94 3.2. Interpretation Subregional courts in West, East and Southern Africa have adopted differing interpretations of the Community and human rights instruments that protect freedom of movement. Although the small number of cases decided to date precludes drawing any definitive conclusions, there are several plausible explanations for the courts’ divergent interpretive approaches in these cases. First, the rules governing the free movement of persons vary significantly across the three subregions. The rules are weakest in SADC, which, as noted above, recognizes free movement as only an aspirational goal pending the entry into force of an anemic protocol on that topic. Free movement is somewhat more strongly protected in ECOWAS, which has adopted a blueprint to expand free movement in a series of protocols. The EAC has the most expansive free movement rules. Its Common Market Protocol guarantees free movement for all individuals, including workers and their families, adopts a program to harmonize identity documents and labor policies, and recognizes the rights of residence and establishment for non-nationals.95 Seen from this perspective, it is hardly surprisingly that the EACJ, in the Mohochi and Rufyikiri decisions, provided the most robust interpretation of subregional free movement of persons rules. And it is equally apparent why neither the applicant nor the SADC judges in the Cimexpan case so much as mentioned a Community right to free movement in a suit challenging the expulsion of a national of one SDAC member state by another member state. A second factor that illuminates the differing interpretations is the scope of each court’s subject matter jurisdiction. The SADC Tribunal Protocol, prior to its revision in 2014,96 was the most capacious of the international instruments establishing the three courts. The Protocol gave the Tribunal broad authority to “develop its own Community jurisprudence having regard to applicable treaties, general principles, and rules of public international law.”97 The Protocol’s expansive mandate may explain why the judges in Cimexpan endorsed soft law and scholarly writings urging recognition of minimum human rights protections for foreign nationals. Turning to West Africa, the 2005 Supplementary Protocol gives the ECOWAS Court express authority to review human rights suits filed by individuals. The Protocol does not, however, indicate which human rights the judges may apply, nor, more significantly, does it grant jurisdiction over private litigant suits alleging violations of the ECOWAS Treaty or other Community rules. Although the Court can interpret these legal instruments in suits between member states or between a member state and a Community institution, no such case has ever been filed.98 The bifurcation of the ECOWAS Court’s jurisdiction sits uneasily with the dual protection of free movement of persons in both the African Charter and ECOWAS protocols. It suggests that whether the judges hear a case depends on whether private litigants frame their complaints as human rights violations rather than breaches of subregional free movement rules—even if the facts underlying those complaints are identical. The bifurcation of the Court’s jurisdiction may also explain the contrasting interpretative approaches in the Falana and Balde cases. The former suit, which challenged formal and unofficial barriers to travel across West Africa, was framed primarily as a breach of ECOWAS free movement rules; the latter, involving a ban on all foreign travel applied to a state’s own citizens, was litigated exclusively on human rights grounds. The EACJ’s jurisdictional mandate cuts in the opposite direction. The EAC Treaty provides East African judges with unequivocal authority to interpret all aspects of Community law. In contrast, the judges’ power to entertain human rights suits is more tenuous and continues to be challenged by governments. The Court has justified its jurisdiction over such suits by citing the references to human rights in the Treaty’s fundamental principles clause. Yet as the Appellate Division’s Omar judgment reveals, the EACJ has refrained from adopting the pro-applicant doctrinal innovations that regional human rights tribunals have embraced because it lacks an express human rights mandate. In cases alleging violations of the right to freedom of movement, however, there is less need for such caution due to the robust protections of that right in EAC law. The result is that EACJ judges have adopted bold legal rulings that forcefully condemn arbitrary restrictions on entering or leaving a member state and that label such restrictions as a dual threat—to individual liberty and to subregional integration. 3.3. Remedies The relief that international courts provide to prevailing litigants depends on a range of factors, including the kinds of remedies the court is authorized to award, the nature and extent of the applicant’s injuries, and the judges’ (often unarticulated) sense of whether the defendant—usually a state or government actor—is likely to comply with the court’s orders. As this last factor suggests, remedies enable international judges to modulate the political impact of their rulings, including decisions that expansively interpret substantive rules or judicial access provisions. A state that loses a case but need not do much to comply with the judgment against it is, all other things equal, less likely to challenge that judgment or incite a backlash against the judges who issued the decision. The most common remedy requested by the applicants in the subregional free movement cases was a declaration that the travel restrictions infringed human rights law and/or Community law. The ECOWAS Court and EACJ, the two courts that ruled in favor of the applicants, readily granted declaratory relief.99 But the judges went further. In Balde, the ECOWAS Court ordered Senegal to remove the travel ban.100 And in Mohochi, the EACJ issued an order asserting that the offending Ugandan legislation was “rendered inoperative and ha[d] no force of law” to the extent that the statute conflicted with the EAC Treaty and Protocols.101 Whereas the former remedy applies only to a single individual, the latter has a much wider legal and political impact. The EACJ’s bolder remedial order is consistent with its capacious interpretation of East Africa’s more robust protection of the free movement of persons, discussed above. The Court did not, however, grant all of the relief that the applicant requested. Its declaratory orders were more temperate in tone than those Mohochi had sought. The judges also emphasized that Uganda’s Citizenship and Immigration Control Act remains applicable “where citizens of other nations, except the Partner States, are concerned.”102 Finally, the EACJ declined to award costs to Mohochi because he had filed suit “to highlight, contest and cause resolution to an issue of regional concern rather than to seek material restitution . . . from the Republic of Uganda.”103 Due to the “public interest” nature of the litigation, which would “enrich and benefit Community jurisprudence,” the case was “a fitting one where each party should bear their costs.”104 In contrast to their colleagues in East Africa, the ECOWAS judges in Balde avoided invalidating a domestic statute by construing Senegalese law as requiring a court to issue a travel ban. This interpretation seems entirely reasonable. But it is also consistent with the ECOWAS Court’s cautious approach to remedies in other high-profile cases, which favor modest damage awards and declarations of violations over injunctions and orders striking down national legislation.105 4. Conclusion The free movement of persons case law of the SADC Tribunal, ECOWAS Court, and EACJ illustrate some of the challenges faced by international judicial bodies that adjudicate human rights cases but were not initially established to hear such suits. The discrepancy between the courts’ originally intended functions and their actual practice helps to explain the different reasoning and results of decisions concerning the hybrid right to freedom of movement. That mismatch also suggests that the subregional courts are likely to chart courses that diverge from the relatively expansive approaches to access, interpretation, and remedies adopted by human rights tribunals in Africa, the Americas, and Europe. There are three plausible explanations for this divergence which suggest fruitful areas for future research. First, the courts in West, East, and Southern Africa operate at the interface of international human rights law and subregional integration law, an intersection that colors their approach to adjudication in distinctive ways. Second, the access rules, interpretive authority, and remedial powers of the three courts are less a product of rational design than the result of evolving, piecemeal, and sometimes inconsistent decisions by governments whose support for subregional integration—and for the role of international judges in the integration process—waxes and wanes over time. Third, all three courts have experienced significant political backlashes during their early years. The outcomes of these backlashes varied, but each has left an indelible mark on subregional judges, in particular on how bold or timid they are in their still-evolving approaches to access, interpretation, and remedies. Footnotes 1 African (Banjul) Charter on Human and Peoples’ Rights, June 27, 1981, 1520 U.N.T.S. 217, 21 I.L.M. 58 (1982) [hereinafter African Charter]. 2 This article does not discuss another African subregional integration system, the Common Market for Eastern and Southern Africa (COMESA), which also protected free movement of persons, because its Court of Justice has primarily adjudicated disputes involving COMESA employees. See James Thuo Gathii, Subregional Court or Employment Tribunal? The Legacy and Legitimacy of the COMESA Court of Justice, inThe Legitimacy of International Trade Tribunals (Robert Howse et al. eds., forthcoming). 3 For additional discussion of the origins of the three subregional communities, including member states, supranational institutions, and differing approaches to regulating the free movement of persons, seeJames Thuo Gathii, African Regional Trade Agreements as Legal Regimes (2011); Kofi Oteng Kufuor, The Institutional Transformation of the Economic Community of West African States (2006); Peter Mudungwe, Promoting Free Movement of People in Southern Africa: A Case for Ratification of the Protocol on the Facilitation of Movement of Persons in the SADC Region (ADPC Res. Rep. No. 2016/03), available athttp://www.diaspora-centre.org/wp-content/uploads/2016/03/Research-Report-Promoting-Free-Movement-of-People-in-SADC.pdfhttp://www.diaspora-centre.org/wp-content/uploads/2016/03/Research-Report-Promoting-Free-Movement-of-People-in-SADC.pdf. 4 See James Gathii, Mission Creep or a Search for Relevance: The East African Court of Justice’s Human Rights Strategy, 24 Duke J. Comp. & Int’l L. 249, 250 (2014). 5 See Karen J. Alter, Laurence R. Helfer, & Jacqueline McAllister, A New International Human Rights Court for West Africa: The ECOWAS Community Court of Justice, 108 Am. J. Int’l L. 737, 737–739 (2013). 6 See Karen J. Alter, James T. Gathii, & Laurence R. Helfer, Backlash Against International Courts in West, East and Southern Africa: Causes and Consequences, 27 Eur. J. Int’l L. 293 (2016). In August 2014, SADC member states adopted a new protocol that strips the SADC Tribunal of private litigant access. The Protocol has yet to enter into force. In the meanwhile, the Tribunal remains suspended. Id. at 314. 7 The African Charter provides in relevant part: 2. Every individual shall have the right to leave any country including his own, and to return to his country. This right may only be subject to restrictions, provided for by law for the protection of national security, law and order, public health or morality. . . . 4. A non-national legally admitted in a territory of a State Party to the present Charter, may only be expelled from it by virtue of a decision taken in accordance with the law. African Charter, supra note 1, art. 12. 8 The EAC, ECOWAS, and SADC have each adopted instruments regarding the free movement of Community citizens among their respective member states. See, e.g., Protocol A/P.1/5/79 Relating to Free Movement of Persons, Residence and Establishment, art. 3 (May 29, 1979) [hereinafter ECOWAS Free Movement Protocol]; Protocol on the Establishment of the East African Community Common Market, art. 7 (Nov. 20, 2009) [hereinafter EAC Common Market Protocol]; Treaty of the Southern African Development Community, art. 5(2)(d) (Aug. 17, 1992) [hereinafter SADC Treaty]. 9 Nat’l Ass’n of Nigerian Traders, Sovereignty, Supranationality and Trade: The Case of ECOWAS Laws, 2 ECOWAS Vanguard 7 (Feb. 2013) [hereinafter Sovereignty, Supranationality and Trade] (on file with author). 10 Case No. SADC (T) 01/2009 (June 11, 2010). 11 Id. at 6. 12 Article 14 of the Protocol provides that the Tribunal “shall have jurisdiction over all disputes and all applications referred to it in accordance with the [SADC] Treaty and this Protocol which relate to . . . the interpretation and application of the Treaty.” Protocol on the Tribunal and Rules thereof (2000) [hereinafter SADC Tribunal Protocol], available athttp://www.sadc.int/files/1413/5292/8369/Protocol_on_the_Tribunal_and_Rules_thereof2000.pdf. 13 Cimexpan, Case No. SADC (T) 01/2009, at 6. 14 Id. at 8. 15 Id. at 7. 16 Id. at 7. 17 Id. at 8. 18 SADC Treaty, supra note 8, art. 5(2)(d). 19 [SADC] Protocol on Facilitation of Movement of Persons, Aug. 18, 2005 (not yet in force). Only five SADC member states have ratified the Protocol, fewer than the nine required for its entry into force. 20 Alter, Gathii, & Helfer, supra note 6, at 306–309. 21 Falana v. Republic of Benin, ECW/CCJ/APP/10/07, Judgment ¶ 3 (Jan. 24, 2012). 22 Id. 23 ECOWAS Free Movement Protocol, supra note 8, art. 2(1) (“The Community citizens have the right to enter, reside and establish in the territory of Member States.”); id. art. 3(2) (“A citizen of the Community visiting any Member State for a period not exceeding ninety (90) days shall enter the territory of that Member State through the official entry point free of visa requirements.”); African Charter, supra note 1, art. 12(2) (“Every individual shall have the right to leave any country including his own, and to return to his country.”). 24 Falana, ECW/CCJ/APP/10/07 ¶ 4. 25 Supplementary Protocol A/SP1/01/05 Amending the Preamble and Articles 1, 2, 9 and 30 of Protocol (A/P.1/7/91) Relating to the Community Court of Justice, Jan. 19, 2005 [hereinafter 2005 Supplementary Protocol], available athttp://www.courtecowas.org/site2012/pdf_files/supplementary_protocol.pdf. 26 Falana, ECW/CCJ/APP/10/07 ¶¶ 8–11. 27 African Charter, supra note 1, art. 12(2). 28 Falana, ECW/CCJ/APP/10/07 ¶¶ 27–28. 29 2005 Supplementary Protocol, supra note 25, art. 9(3) (“Any action by or against . . . any Member of the Community shall be statute barred [sic] after three (3) years from the date when the right of action arose.”). 30 Falana, supra note 21 ¶ 30 (citing Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, G.A. Res. 60/147, U.N. GAOR, 60th Sess. U.N. Doc. A/RES/60/147 (Dec. 16, 2005)). The resolution provides in relevant part: “Where so provided for in an applicable treaty or contained in other international legal obligations, statutes of limitations shall not apply to gross violations of international human rights law and serious violations of international humanitarian law which constitute crimes under international law.” Id. ¶ 6 (emphasis added). 31 Falana, ECW/CCJ/APP/10/07 ¶ 33. 32 Id. ¶ 42. 33 Id. ¶ 33. 34 Sovereignty, Supranationality and Trade, supra note 9. 35 African Charter, supra note 1, art. 12(2) (permitting restrictions on the right to leave any country only when such restrictions are “provided for by law for the protection of national security, law and order, public health or morality”). 36 When reviewing restrictions under the African Charter’s “claw-back” clauses, including restrictions on free movement of persons under article 12(2), the African Commission “weighs the impact, nature and extent of the limitation against the legitimate state interest serving a particular goal,” which must be “strictly proportionate with and absolutely necessary for the advantages which are to be obtained.” Frans Viljoen, International Human Rights Law in Africa 331 (2d ed. 2012). 37 Supplementary Protocol on the Code of Conduct for the Implementation of the Protocol on Free Movement of Persons, the Right of Residence and Establishment, A/SP 2/7/85, art. 8 (July 6, 1985), quoted in Falana, supra note 21 ¶ 43. 38 Falana, ECW/CCJ/APP/10/07, ¶¶ 43–44. 39 The 1985 Protocol appears to permit a member state itself to determine whether closing its borders is a necessary measure. This differs from article 12 of the African Charter, which subjects the necessity and proportionality of state restrictions on freedom of movement to review by the African Commission and Court of Human and Peoples’ Rights. 40 See, e.g., Kate D. A. Costa, Nigeria: Ghana Threatens to Expel Foreign Retailers, Daily Trust, June 29, 2012, available athttp://allafrica.com/stories/201206290777.html; Good v. Botswana, Comm. No. 313/05, African Comm’n on Human Rights, 28th Activity Report ¶ 205 (2009–2010) (recognizing “the challenges that are faced by African countries that might push them to resort to extreme measures like deportation in order to protect their nationals and economies from non-nationals.”). 41 See, e.g., Nigeria: Govt Closes Borders Ahead of Governorship Elections, Daily Independent (Lagos), Apr. 8, 2015, available athttp://allafrica.com/stories/201504090252.html; Ghana closes border to Togo ahead of elections, Starr FM, Apr. 24, 2015, available athttp://www.ghheadlines.com/agency/starr-fm/20150424/715090/ghana-closes-border-to-togo-ahead-of-elections; Umaro Djau, Authorities Close Border as Ivory Coast Election Stalls, cnn (Dec. 3, 2010), available athttp://www.wibw.com/home/headlines/Authorities_close_border_as_Ivory_Coast_election_stalls_111265834.html. 42 ECW/CCJ/APP/22/12, Judgment (Feb. 22, 2013). 43 Id. ¶ 9. 44 Id. ¶ 41. 45 Id. ¶ 56. 46 Id. ¶¶ 58, 61. 47 Id. ¶ 58. 48 Id. 49 Id. ¶ 77. 50 Ref. No. 5 of 2011, EACJ First Instance Division, Judgment (May 17, 2013). 51 Id. ¶¶ 2–5. 52 Treaty for the Establishment of the East African Community, 2144 U.N.T.S. 255 (Nov. 30, 1999) [hereinafter EAC Treaty], art. 104 (“[The] Partner States agree . . . to achieve the free movement of persons.”). 53 EAC Common Market Protocol, supra note 8, art. 7.1 (“The Partner States hereby guarantee the free movement of persons who are citizens of the other Partner States.”). 54 EAC Treaty, supra note 52, art. 6(d); see also id. art. 7(2) (“The Partner States undertake to abide by the principles of good governance, including adherence to the principles of democracy, the rule of law, social justice and the maintenance of universally accepted standards of human rights.”). 55 Mohochi, Ref. No. 5 of 2011, ¶ 9. 56 Id. ¶ 11. 57 Id. ¶ 28. 58 EAC Treaty art. 27.2 provides that “[t]he Court shall have . . . human rights and other jurisdiction as . . . determined by the [EAC] Council at a suitable subsequent date. To this end, the Partner States shall conclude a protocol to operationalise the extended jurisdiction.” 59 Mohochi, Ref. No. 5 of 2011, ¶ 26. For an insightful discussion of the EACJ’s human rights jurisprudence, see Gathii, supra note 4, at 253–259. 60 Mohochi, Ref. No. 5 of 2011, ¶ 40. 61 Id. ¶¶ 52–53. 62 EAC Common Market Protocol, supra note 8, art. 7.2. 63 Id. art. 7.5. 64 Mohochi, Ref. No. 5 of 2011, ¶¶ 15–16. 65 Id. ¶ 96 (emphasis in original). 66 Id. ¶¶ 98, 100. 67 Common Market Protocol, supra note 8, art. 7.6 (“A Partner State imposing a limitation under paragraph 5, shall notify the other Party States accordingly.”). The EACJ described notification as “meant for the public in the Partner States to be known and be complied with by all.” Mohochi, Ref. No. 5 of 2011, ¶ 114. 68 Mohochi, Ref. No. 5 of 2011, ¶ 115. The EACJ does not explain the quantum of evidence required to justify a security exception to free movement, other than explaining that “[a] Partner State, before imposing a limitation on an individual would have to satisfy itself that the measure is merited in each particular case.” Id. 69 Id. ¶¶ 69–72. The due process requirement appears to be based on the “good governance” and “rule of law” provisions in articles 6(d) and 7(2) of the EAC Treaty. 70 Id. ¶ 72 (quoting Due Process, Black’s Law Dictionary (9th ed. 2009). 71 Id. ¶ 76 (citing State v. Royer, Case 48/75 [1976] E.C.R. I-497). 72 Id. ¶ 95. 73 Id. ¶ 105. 74 Id. ¶ 108. 75 Id. ¶ 130. 76 Josh Kron, Bombers Kill More Than 50 in Attacks in Uganda, N.Y Times, July 11, 2010, available athttp://www.nytimes.com/2010/07/12/world/africa/12uganda.html; see also Uganda Bomb Blast Kills At Least 74, The Guardian, July 11, 2010, available athttp://www.theguardian.com/world/2010/jul/12/uganda-kampala-bombs-explosions-attacks. 77 See Xan Rice, Kenyan Activist Becomes a Victim of Rendition, Time, Mar. 10, 2011, available athttp://content.time.com/time/world/article/0,8599,2057966,00.html (noting that Al-Amin Kimathi was detained on Sept. 15, 2010). 78 See Freedom for Activist Charged with Uganda Bombing, Amnesty Int’l, Sept. 12, 2011, available athttps://www.amnesty.org/press-releases/2011/09/freedom-activist-charged-uganda-bombing/ (noting that the Ugandan government denied entry to and deported “several human rights activities and lawyers who travelled to Uganda to monitor the case against Al-Amin Kimathi.”); Maxwell Masava, Kenya: Privy to Kimathi Detention. Says Jurists, The Star, Apr. 16, 2011, available athttp://allafrica.com.proxy.lib.duke.edu/stories/201104180624.html (recognizing that Uganda denied entry to other attorneys associated with Muslim human rights organizations). 79 See Lillian Onyango, Govt. Ignoring Muslims, available athttp://allafrica.com.proxy.lib.duke.edu/stories/201104180002.html (stating that four human rights activists were denied entry into Uganda in April 2011). A Ugandan court dismissed the charges against Kimathi after he spent almost a year in detention. Uganda: Charges Against Human Rights Defender Dropped, IFEX, Sept. 13, 2011, available athttps://www.ifex.org/uganda/2011/09/13/kimathi_released/. 80 Nyambura v. Attorney Gen. of Uganda, Ref. No. 11 of 2011, EACJ First Instance Division, Judgment (Feb. 24, 2014). 81 Id. ¶ 4. 82 EAC Treaty, supra note 52, art. 27.2 (“The proceedings provided for in this Article shall be instituted within two months of the enactment, publication, directive, decision or action complained of, or in the absence thereof, of the day in which it came to the knowledge of the complainant, as the case may be.”). 83 Nyambura, Ref. No. 11 of 2011, at 18. 84 Id. at 20 (quoting Attorney Gen. of Uganda v. Omar, App. No. 2 of 2012 (arising out of Ref. No. 4 of 2011), Appellate Division, Judgment ¶ 59 (Apr. 15, 2013)). 85 James Thuo Gathii, The Variation in the Use of SubRegional Integration Courts between Business and Human Rights Actors: The Case of the East African Court of Justice, 79 L. & Contemp. Probs. 37 (2016). 86 Ref. No. 1 of 2014, EACJ First Instance Division, Judgment (May 15, 2015). 87 Id. ¶¶ 93–96. 88 Id. ¶ 96. 89 E.g., Common Market Protocol, supra note 8, art. 7.1 (“The Partner States hereby guarantee the free movement of persons who are citizens of the other Partner States”) (emphasis added). 90 Campbell and Others v. Zimbabwe (Merits), Case No. SADC (T) 2/2007 (Nov. 28, 2008) ¶¶ 25–31. 91 See Alter, Helfer, & McAllister, supra note 5, at 765–766. 92 Gathii, supra note 4, at 273. 93 See Alter, Gathii, and Helfer, supra note 6, at 302–306. 94 See Gathii, supra note 85, at 45–54. 95 Common Market Protocol, supra note 8, arts. 7–14. 96 See note 6 supra. 97 SADC Tribunal Protocol, supra note 12, art. 21(b). 98 See Alter, Helfer, & McAllister, supra note 5, at 757–758. 99 As explained above, in Cimexpan the SADC Tribunal dismissed an application challenging a Tanzanian deportation order that included a request to rescind the order. 100 Balde, ECW/CCJ/APP/22/12, ¶ 77. 101 Mohochi, Ref. No. 5 of 2011, ¶ 130. 102 Id. ¶ 122. 103 Id. ¶ 125. 104 Id. ¶¶ 127–128. 105 See Alter, Helfer, & McAllister, supra note 5, at 766–767. © The Author(s) 2018. Oxford University Press and New York University School of Law. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)

Journal

International Journal of Constitutional LawOxford University Press

Published: May 12, 2018

There are no references for this article.

You’re reading a free preview. Subscribe to read the entire article.


DeepDyve is your
personal research library

It’s your single place to instantly
discover and read the research
that matters to you.

Enjoy affordable access to
over 18 million articles from more than
15,000 peer-reviewed journals.

All for just $49/month

Explore the DeepDyve Library

Search

Query the DeepDyve database, plus search all of PubMed and Google Scholar seamlessly

Organize

Save any article or search result from DeepDyve, PubMed, and Google Scholar... all in one place.

Access

Get unlimited, online access to over 18 million full-text articles from more than 15,000 scientific journals.

Your journals are on DeepDyve

Read from thousands of the leading scholarly journals from SpringerNature, Elsevier, Wiley-Blackwell, Oxford University Press and more.

All the latest content is available, no embargo periods.

See the journals in your area

DeepDyve

Freelancer

DeepDyve

Pro

Price

FREE

$49/month
$360/year

Save searches from
Google Scholar,
PubMed

Create lists to
organize your research

Export lists, citations

Read DeepDyve articles

Abstract access only

Unlimited access to over
18 million full-text articles

Print

20 pages / month

PDF Discount

20% off