The Jurisprudence on Regional and International Tribunals Digest

Rachel

Description

The Jurisprudence on Regional and International Tribunals Digest is borne out of the recent developments in the judicial arena of the East African Community and other inter-state arrangements where matters are increasingly getting litigated and determined at the international fora. With such a development, there is the more current need to document the reasoning, not just of judicial officers from the East African Court of Justice but also from other regional and international tribunals. This will help in consolidating knowledge on diverse aspects of substance and procedure from these tribunals for both academic and practice purposes. This digest no doubt adds value to practitioners in the East African region and beyond who are getting absorbed into legal practice before tribunals of an international law character. It is hoped that the digest will further be of great assistance to the community of the academia that is in need of material for the dispensation of knowledge in the area of international law.

Sujets

• Law

Informations

• Publié par: LawAfrica Publishing Ltd
• Date de parution: 29 décembre 2007
• Nombre de lectures: 0
• EAN13: 9789966031495
• Langue: English
• Poids de l'ouvrage: 6 Mo

Extrait

THE JURISPRUDENCE ON
REGIONAL AND INTERNATIONAL
TRIBUNALS DIGEST




THE JURISPRUDENCE ON
REGIONAL AND INTERNATIONAL
TRIBUNALS DIGEST



Published by:
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© LawAfrica Publishing Ltd 2007
ISBN 9966-7121-9-4

Printed and bound by Kijabe Printing Press TABLE OF CONTENTS
Page
Preface........................................................................................... vii
Introduction................................................................................... ix
Subject Index ................................................................................. xi
Table of Cases ................................................................................ xv
Mwatela and others v East African Community......................... 1
Anyang’ Nyong’o and others v Attorney General of the
Republic of Kenya and others ............................................ 19
Nangale and others v Attorney General of the Republic
of Kenya and others ........................................................... 28
Attorney General of the Republic of Kenya v
Anyang’ Nyong’o and others.............................................. 33
Anyang’ Nyong’o and others v Attorney General of the
Republic of Kenya and others ............................................ 54
The Republic of Kenya and Commissioner of Lands v
Coastal Acquaculture ......................................................... 86
Eastern and Southern African Trade and others v
Martin Ogang.................................................................... 94
Inter-American Court of Human Rights................................... 104
Caesar v Trinidad and Tobago Inter-Am
Ct HR (Ser C)................................................................... 167
International Court of Justice Year 2004................................... 223
The Prosecutor v Jean-Paul Akayesu......................................... 271
European Parliament v Council of the European
Communities..................................................................... 348

vi The Jurisprudence on Regional and International Tribunals Digest
European Parliament v Council of the European
Communities..................................................................... 354
East African Law Society and others v Attorney General of
the Republic of Kenya and others ...................................... 361 PREFACE
In this era of globalisation, the law is slowly but surely taking the central stage.
Unlike before, it is no longer force in the form of gunboat diplomacy or ideology
as represented by cold war which determines the right and wrong at international
level. It is the law.
The choice of the tribunals whose work is digested is wide and rich. There are
cases from one global tribunal (the International Court of Justice); one regional
tribunal (the Inter-American Court of Human Rights); two sub-regional tribunals
(the East African Court of Justice and the COMESA Court of Justice); and two ad
hoc tribunals (the International Criminal Tribunal for the Former Yugoslavia and
the International Criminal Tribunal for Rwanda). The selected cases cover a variety
of subjects in international law from international trade to international
humanitarian law. They deal with both issues of substance as well as procedure.
Of special interest in this digest is the work of the East African Court of Justice.
This court, hitherto thought to be a dormant and useless part of the East African
Community set-up has of late surprised many. After almost six years of inaction, it
has recently produced earth-shaking decisions. These bold rulings and judgments
have caught governments of East African Community member States by surprise
and thus forcing them to make a clear choice between respecting rule of law or
resorting to illegality. Unfortunately, they have chosen the later. They have resorted
to high-handedness – threatening judges, ignoring rulings – all in the name of
sovereignty! This is an indication of the effects of a good international tribunal
which is composed of people of integrity – bold spirits who are ready to stand by
justice even if heavens fall. The judges of the East African Court of Justice are doing
the region proud.
The arrival of this Digest is more than timely. It is inter alia, a clear evidence
that both regional and international tribunals are doing a fantastic work and
enormously contributing to the development of international law. In addition, it is
making the work from the African continent which is rarely available to the rest of
mankind now accessible to the wider world. This is an important and
wellconceived initiative for which the East Africa Law Society should be saluted.
Chris Maina Peter
Professor of Law
University of Dar es Salaam, TANZANIA INTRODUCTION
For a long time states committed themselves to international legal obligations that
they did not, with equal enthusiasm, commit themselves to enforcement. The
concept of state sovereignty was the shield that many states invoked to keep at bay
attempts by the international community to measure their compliance with
international legal obligations.
The recent past has seen the fashionability of regional trading and administrative
blocks. With the emergence of these blocks have emerged institutions for dispute
resolution. This accounts for the existence of such institutions such as the East
African Court of Justice, the court for the Common Market for Eastern and
Southern African States, the African Commission of Human and Peoples’ Rights,
the African Court of Human and Peoples’ Rights, the Inter-American Court of
Human Rights, the European Court of Human Rights among other regional
tribunals.
The changing nature of interstate relations has also seen the emergence of
international tribunals like the International Court of Justice, the International
Criminal Tribunal Tribunal for the Former Yugoslavia, the International Criminal
Tribunal for Rwanda and the International Criminal Court.
These courts have varying approaches to procedural aspects of the questions
that they are confronted with. Further, the jurisdictions of these tribunals vary
depending on the instruments establishing them and other general principles of
international law.
The emergence of these tribunals has further had the desired and enriching
effect of adding value and giving meaning to the dry letter of international law.
Areas of international law such as general international law, principles of regional
integration, international human rights, international humanitarian law,
international criminal law, international trade law, international environmental law,
innal law of the sea, international space law among other branches of law
have benefited tremendously from the reasoning advanced by these tribunals on a
case by case basis.
Practitioners of law cannot evade the challenges attendant to practicing before
these tribunals. It is against the background of this inescapable challenge that this
digest becomes the more relevant. Though not covering all aspects of international
law as discovered by various tribunals, it is a material addition to the resources of
international law available in the East African region.

x The Jurisprudence on Regional and International Tribunals Digest
The digest covers all decisions so far made by the East African Court of Justice.
The digest, thereafter samples two decisions from the COMESA court, two
decisions from the Inter-American Court of Human Rights, two decisions from the
International Court of Justice, two decisions from the International Criminal
Tribunal for the former Yugoslavia and two decisions from the International
Criminal Tribunal for Rwanda. Space is many times a highly limiting factor. That is
why diverse reasoning from other cases determined by the same tribunal as well as
the jurisprudence from other tribunals like the African Commission on Human and
Peoples’ Rights and the European Court of Human Rights have been given a wide
berth. It is hoped that by instrumentality of sequels, such inadequacies will be
addressed.
Ongoya Z Elisha, Advocate
Editor SUBJECT INDEX
Action for annulment – Parliament’s right to bring such an action restricted to
defence of its prerogatives (EEC Treaty, article 173; EAEC Treaty, article 146).
European Parliament v Council of the European Communities; 354
Bias – Disqualification of judicial officer – Applicable principle – Procedure for
making the application. Attorney General of the Republic of Kenya v Anyang’ Nyong’o
and others; 33
Children’s rights – Scope of children’s rights – The persons, bodies and institutions
to gua