East African Community
Secretariat, Arusha, 31 October 2012: A two-day retreat of
Senior Experts on development of the Model Structure and Action Plan for the
proposed EAC Political Federation ended 31 October at the Gold Crest Hotel in
Mwanza, Tanzania.
The Retreat was convened pursuant to
the decision of the 25th Meeting of the Council of Ministers
and was attended by Senior Experts on regional integration and constitutional
matters that included Prof. Sam Tulya-Muhika, Prof. Palamangamba Kabudi, Hon.
Amos Wako, Amb. Juma Mwapachu, Hon. Lydia Wanyoto, Dr Patrick Maluki, Mr. Dan
Ameyo, Dr. Emanuel Ugirashebuja and other senior experts from the Partner
States, and Dr. Julius Rotich and Hon. Wilbert Kaahwa from the EAC Secretariat,
among others.
The retreat considered the Zero
Draft Model of the Structure and Plan of Action of the Political Federation
developed by the Secretariat in line with the Directive of the 10thExtraordinary
Summit held in April 2012.
Welcoming the delegates to the
Retreat, the Deputy Secretary General in charge of Political Federation Dr.
Julius Tangus Rotich emphasized that the draft Model of the Structure
prescribes far-reaching ameliorative measures towards addressing fears of loss
of sovereignty and urged the experts to also consider, the positive aspect of
pooled sovereignty.
He said the EAC integration in
its entirety was a political process, its negotiation was political, and its
decisions were to a large extend political and reaffirmed that that political
integration compliments economic integration and fortifies the gains of the
whole integration process.
In considering the Zero
Draft, the Senior Experts agreed that while borrowing from other models, the
EAC Model should be tailored in a way that answers to the EAC context as well
as the identified Fears, Challenges and Concerns. The Model should be simple
enough to be articulated by both the ordinary citizens of East Africa and the
Heads of State.
The Experts noted that during the
negotiations of the Federal Constitution, attention should be given to
addressing the fears within the different competences of the Federal and
Constituent States.
The Experts agreed that the
rationale of the model structure was the springboard for the entire instrument
and should justify why the EAC had opted for a Federation. They noted that it
was important to emphasize the historical background and key Institutions and
Corporations that existed in the old Community as strength to be built upon.
They noted that the absence of strong supra-national institutions contributed
to the disintegration of the first EAC. These institutions were critical to
establishment of a strong foundation for a political federation.
In regard to Transitional
arrangements, the Experts felt that there was need for negotiating a Treaty
establishing the Federation, in line with the Vienna Conventions relating to
assumption of obligations and responsibilities, which would be deposited with
international organizations.
There was also the need to learn
from the experiences of the Tanganyika/Zanzibar Union, taking stock of lessons
from other types of Federations be they voluntary or forced and those that have
since collapsed. The Tanzania/Zanzibar experience should help the EAC to avoid
pitfalls and address some of the challenges that it is facing at the moment.
This information will shape the EAC processes as it moves towards Political
Federation.
On matters that are identified
as federal, they would require further interrogation during the negotiation of
the Federal Constitution. In the Federal Constitution, it should be made clear
that concurrent matters should not encroach on the autonomy of the Constituent
States on non-federal matters. All concurrent matters should not be included
under either constituent or federal matters to avoid confusion in the
interpretation of the roles, functions, and responsibilities.
The Experts agreed that sovereignty
was a dicey issue and should be taken positively through championing pooling of
sovereignty as opposed to ceding sovereignty. Under the proposed model, the
constituent states will lose the sovereign powers. There was need to consider
whether there were success stories of federations where constituent states
retained sovereignty and legal personality.
The meeting noted that Partner
States need to be mindful of current realities that are obtaining on the ground
and the effects they would have on the proposed federation. The concept of
sovereignty has transformed from the notion of state sovereignty to the
sovereignty of the people and it is also that may make or break the federation.
On the Variable Geometry Principle,
it was agreed that this principle should be retained but further elaborated as
to when it should be invoked. The fact that the Federation will be a voluntary
union calls for consideration of an opt out provision.
On the Federal Presidency, the
experts recommended providing for a transitional period during which the
Presidency will be assumed rotationally on annual basis. There was also the
need to consider provision of a Presidential Council that brings together the
Federal and Constituent State Presidents to ventilate on issues that relate to
the Federal/Constituent State relationship.
In regard to Jurisdiction of the
Federal Courts, the issue of human rights should not be original jurisdiction
for the Federal Courts. The human rights issues should be unpacked and detailed
in the negotiation of the federal constitution. Issues relating to appeals,
original or appellate jurisdiction of the Federal Courts will be detailed in
the Federal Constitution and rules of the Court. With respect to conflict
between the Federation and a Constituent State, jurisdiction should be left to
the Federal Court.
In regard to the action plan, the
experts agreed to present an action plan that sequences activities
and the time period within which they will be undertaken but leave the
timeframes to the Heads of State to decide.
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