An East African federation and the constitution of Kenya. A critical look at the proposed creation of an East African federation vis-a-vis the constitution of Kenya
Wang'oo, Moses G
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Economic integration is in vogue in East Africa. The three East African countries, that is, Kenya, Uganda and Tanzania have entered into the Treaty for the Establishment of an East African Community, 1999.1 The objective of the East African Community is economic integration through the formation of a Customs Union, a Common Market, a Monetary Union and ultimately a Political Federation.'. The logic of political integration as a policy of economic integration is in ascendance in East Africa replacing the purely economic integration measures and rejecting an incremental process. The East African Political Federation envisaged would mean that the three East African countries would have common foreign and security policies and a central federal government under an East African President.3 An East African Federation is to be in place with a new Federal Constitution by 2010.4 A Political Federation as a policy of economic integration brings into sharp focus the issue of the constitutionality of such fundamental alteration of the constitutional order in Kenya. This is mainly because there are express and implied constitutional limits on the power of the Executive to enter into such a treaty and in the pursuit of economic integration. Under the operational East African Community certain constitutional conflict areas are already evident. In brief, these conflict areas; First, each of the three East African countries has a hierarchy of norms which emphasizes the supremacy of their respective Constitution. In Kenya, the Constitution as the supreme law, Goes not attempt to deal with treaty making and the effects that this would have on a treaty that has as its objective the altering of the laid down constitutional order. It follows, therefore, that even if the Treaty declares it is supreme over national Constitutions of the Member States, each of the Constitutions would still retain the declaration of itself as the supreme law of its territory. Secondly, the East African Legislative Assembly has been given legislative power at par with the Parliament of Kenya and in some aspects is superior on matters that affect Kenyans.' This is not delegated legislation as Article 4 of the Treaty gives it precedence over similar provisions of the national laws. Thirdly, the Council under the Treaty has executive power as it has the responsibility of making decisions on key economic policies of the Member States such as taxation and initiation of Bills to the East African Legislative Assembly.i Fourthly, the East African Court of Justice has original jurisdiction on matters touching on interpretation and compliance with the Treaty. The jurisdiction of this court is also to be extended to include appellate and human rights jurisdiction. Lastly, the current conflicting position is to be extended and magnified by the formation of an East African Political Federation. 9 The East African Federation is to have a central Federal government and a single East African President.1o Therefore, there is an existing limited sharing of executive, legislative and judicial power that is to be made all encompassing in an East African Federation. It is thus evident that there is currently an emergent new constitutional order in East Africa and under an East Africa Federation there will be a complete dislocation of the current executive, legislative and judicial powers. The extension and broadening of the East African Community into an East African Federation may therefore exacerbate the constitutional problems and democratic legitimacy of the resultant state. This research paper looks at the Treaty for the Establishment of the East African Community, 1999 in so far as it seeks to create an East African Federation. This is in the light of the legal reception of treaties in Kenya and the supremacy of the Constitution. It reflects on whether the creation of an East African Federation is an unconstitutional change of the constitutional order in Kenya. The paper concludes with recommendations for a constitutional process for the creation of an East African Federation. This must take cognizance of the express and implicit constitutional limits. It must also give due consideration to the people of East Africa's constituent power. The leadership must change the legitimating basis of the federation from being based on the member states to being based on a single East African people. This would end up turning the East African Community into an East African State.