Outgoing EA Law Society president speaks out about his tour of duty

After serving his two terms as president of the East Africa Law Society, Mr Bernard Oundo will hand over office in November. Derrick Wandera caught up with him and they talked about his term in office and a wide range of issues.

How has your term in office been as the East Africa Law Society president?

East Africa Law Society (EALS) is a consortium that brings together more than 25,000 lawyers from six member states, including Uganda and Tanzania which have two bodies, Rwanda, Burundi, Kenya and South Sudan. We have seen this society grow from where we found it, especially the subscription of some member states.

My experience has come with many opportunities to address the issue of rule of law and accountability for human rights violations. For instance, we petitioned the East African Court of Justice over [Uganda] government switching off the internet during elections last year and we hope that the court will bring justice to the people.

And what are some of the challenges?

The challenges were many, especially countries that don’t have it as a mandate that all lawyers ought to be part of the East Africa Law Society. But we have since addressed this issue and we now know that membership is increasing. As I leave office there is a need for people to appreciate the central role of the society and its mandate, which is what has lacked over the years.

How can the question of non-tariff barriers in East Africa be addressed?

Non-tariff barriers have continued to be a big problem facing cross-border trade in the region. When the community was established, the key objective then was to create a bloc that has free and seamless flow of trade and allowed free movement of people, goods, services and capital. To achieve this objective, the community in 2005 operationalised a Customs Union (Customs Union Protocol). Under this union, EAC partner states agreed to establish free trade (or zero duty imposed) on goods and services among themselves and agreed on common external tariffs (CET), whereby imports from countries outside the EAC zone were/are subjected to the same tariff when sold to a EAC Partner State.

In 2010, the community operationalised the Common Market Protocol (CMP). The main aim of the CMP was to boost and spur the growth of the EAC through free movement of people, goods, services, labour and capital.

While the community has made tremendous steps towards achieving the goals of the Customs Union and the Common Market Protocol and substantive steps towards a monetary union and political confederation, a number of challenges have arisen along the way. Key among these challenges has been the question of NTBs [non-tariff barriers]. The restrictions unrelated to tariffs that result from quotas, import licensing systems, prohibitions, regulations, conditions or specific market requirements that make the importation or exportation of products difficult and costly.

EAC still grapples with the problem of common market; free entry and exit. How can it be solved?

The EAC was established with the clear aim of making the community a one trade area. Under the operational principles of the community, it is expected that nationals from one Partner state are not discriminated against in any way based on their nationality when in another country. They are also expected to get equal treatment. These operational principles are further cemented under the EAC Common Market Protocol which, among others, creates rights and freedoms for East Africans to, among others, enjoy: free movement of persons within the community, free movement of goods in the community, free movement of labour/workers and others.

While this is what is on paper and while EAC partner states have taken tremendous steps to implement the CMP, a number of factors have continued to hamper full implementation and realisation of the benefits of the CMP.

What’s to be done?

There’s no one-fits-all solution to implementing free movement of the various factors of production within the East African Community. However, a number of actions can be taken to realise this critical objective. The most obvious actions are enactment of relevant laws at national level to conform to the requirements of the CMP.

Further, partner states need to make sure citizens and other stakeholders are fully aware of the free movement rights and freedoms they ought to enjoy. Awareness campaigns and full implementation of CMP requirements will aid the realisation of this objective.

The other significant action by partner states is goodwill towards implementing the requirements for free movement of people, goods and services. This includes the will to eliminate all existing NTBs and other restrictions to movement of people, goods, services and capital in the region.

Other simple but workable solutions include scrapping the need for travel passports for East Africans within the community, the East African Community passport notwithstanding, and also easing clearance for goods at border points.

For professional exchange of services, it is critical that the partner states adopt mutual recognition agreements for academic qualifications.

Uganda has faced a strenuous relationship with Kenya. Until recently, the same with Tanzania and other countries. How can this be permanently solved?

The strain in relations between EAC partner states has mostly been driven by protectionist tendencies by the states contrary to the requirements for free movement. Deeply looked at, these relations are strained by a ban on access to markets for goods produced in one country with other countries reciprocating. These are mostly political problems that require political solutions and political will. However, there are a number of solutions available on the table. First, it’s essential for the partner states to have regular dialogue on areas of disagreement. A recent example of solutions from dialogue is the opening of the Rwanda-Uganda border.

Second, there are solutions provided by courts. The East African Court of Justice has recently emerged as a good arbiter of cross-border conflicts (See Ref. No. 2 of 2019, Steven Kalali Vs. Attorney General of Rwanda).

Third, and this is futuristic, there is a need to operationalise the EAC Trade Remedies Committee which will expeditiously resolve conflicts between partner states on trade matters.

Having finished your mandate as the president of the East Africa Law Society, what is your next step?

I will contest for president Uganda Law Society because having moved in all these East African countries I have benchmarked on what we need to improve. I think there should be an intentional drive to see the rule of law respected and make sure that no one undermines court orders. My presidency will be based on the people which I think should be the ideal and intention is to make sure that I introduce a Sacco for lawyers. This is something that has been in place, but not functional. So I want to revive it.

Looking at the Kenyan polls and the end result, what are the takeaways?

The Kenya elections have set a precedent that all other countries need to borrow a leaf from in terms of conducting a peaceful election. We need to appreciate them for their role in promoting the rule of law, in that if this matter goes to court, whichever side it goes, justice will be dispensed.

The question of the law in this country is another leaf from which to borrow and we shall expect that Uganda, which still struggles with upholding the law, needs to take lessons. Uganda, for instance, has had issues of abusing court orders and government offices acting with impunity, this is where the Kenyans have done well.

What has the East Africa Law Society done on the rule of law?

Rule of law is the cornerstone of the East Africa Law Society. We are the regional watchdog on rule of law matters and we regularly monitor activities of partner states to ensure conformity with the requirements of the treaty establishing the community. To do this, we leverage on our observer status with both the East African Community and the African Commission on Human and People’s Rights based in Banjul.

We have in the recent past undertaken a number of rule of law initiatives to strengthen adherence to commitments made by partner states. They include public interest advocacy and public interest litigation, production of rule of law index, production of the East Africa Law Society Human Rights and Rule of Law Journal, safeguarding rule of law and good governance in East Africa project and election observation missions.