Case Watch: Time Limits Thwart Justice in East Africa

The East African Court of Justice (EACJ) continues to reject cases on the ground that the strict two-month time limit in which to bring a claim has expired. This short time frame and the court’s hard-line refusal to recognize the concept of continuing violations impedes access to justice in a forum that has the potential to strengthen the rule of law in East Africa.

The Treaty Establishing the East African Community (EAC Treaty) requires a case to be filed with the court within two months of the alleged violation. This time frame is short for any plaintiff, especially where plaintiffs often do not have ready access to legal advice. By comparison, the African Commission requires a case to be submitted within a “reasonable time” from the date of exhaustion of local remedies and the ECOWAS Court requires a case to be filed within three years of the right of action arising. At two months, the EACJ’s time limit is considerably shorter than these other regional mechanisms.

But it is the EACJ’s interpretation of the two month limitation that most severely restricts access to the court and diverges from international law and practice.

In the case of IMLU v. Attorney General of Kenya  (Mt. Elgon appeal), the court considered that the EAC Treaty requires that a case must be filed within two months from when the action or decision was first taken or made, or when the claimant first became aware of it. Therefore, rather than starting the clock when the violation ceases in the case of ongoing violations, the EACJ counts the two-month time limit from when the violation began. This approach runs contrary to the practice of all other international tribunals and against principles of law, is unsupported by the court’s reasoning, and is not required by even a strict textual reading of the EAC Treaty.

The perverse reasoning of the Mt. Elgon appeal was applied to a recent complaint against Burundi. At the time the case was filed, Prof. Francois Nyamoya, a vocal member of the opposition party Mouvement pour la solidarité et la démocratie, was being detained by Burundian authorities. Nyamoya complained to the EACJ that his detention was arbitrary and violated article 6(d) of the EAC Treaty. The court held that the complaint was not filed in time, even though the case was filed while Nyamoya was still in prison. The court noted Nyamoya’s argument that his complaint was based on a “process of acts” that began with his arrest in July 2011, and did not end until his release in February 2012. However, it again rejected outright the concept of a continuing violation. This has been the court’s approach in numerous cases, as detailed in an earlier post.

The EACJ’s refusal to recognize continuing violations is at odds with international law and practice. The concept of a continuing violation is well-established in international law, recognized by the ECOWAS Court, the African Commission, the UN treaty bodies, the Inter-American Court of Human Rights and the European Court of Human Rights. Of international tribunals, only the EACJ considers that time limitations run only from the first instance of a violation. The EACJ’s sparse reasoning for its interpretation of the time limitation relies on the principle of legal certainty, noting that legal certainty requires the uniform application of community rules. The concept of continuing violations is compatible with this (and the EAC Treaty), and can be applied uniformly as is the case with other international courts.

No distinctions between the EACJ and other tribunals justify its outlier interpretation. The EACJ does not have formal human rights jurisdiction—it adjudicates cases involving human rights claims as potential violations of the rule of law or the principle of good governance—but the EACJ itself does not rely on this distinction.

The court has noted that it is “alive to the fact that the Rules of Procedure are only hand maidens of justice and they should not be used to defeat substantive justice.” By refusing to recognize the concept of a continuing violation, the court does exactly that which it warns against: it prioritizes an unusual interpretation of procedure over substantive justice.