East Africa: Leaders meet to decide on constitution of federation

The Sixteen Ordinary Summit of the East African Community Heads of State will be held on 30 November 2014 in Nairobi, Kenya.

Norwegian Council for Africa
By Christabel Ligami
Thursday, November 27, 2014

Nairobi (Kenya) - East Africa enters the most decisive stage in its ambitious quest for a political union this week when the five heads of state launch the writing of a federal constitution and issue a time frame for establishment of a regional government.

Political integration, which is the top agenda for the 16th Ordinary EAC Heads of State Summit scheduled for November 30 in Nairobi, would pave the way for a strong authority to reinforce implementation of the other stages of integration — the Common Market, the Monetary Union and the Customs Union.
The presidents of Burundi, Kenya, Rwanda, Tanzania and Uganda are expected to make a final decision on what form political federation will take before the draft constitution is put in place.

The presidents of South Sudan and Somalia, who have applied to join EAC, will be watching the proceedings with interest.

Among the things that the EAC presidents are expected to decide on is whether the political federation is to be under a two-tier structure with a federal entity and constituent state governments or a one-tier structure.

Under a two-tier arrangement, the federation would have a leader, with partner states sharing foreign policy, defence, currency, and economic and trade policies, even as they manage those domestic affairs that do not have a regional dimension.

The best example of a two-tier system is the Union between Tanganyika and Zanzibar, which formed the United Republic of Tanzania. While Zanzibar has its own elected government, it has to operate under the Union government in terms of foreign policy and international relations.

A one-tier system would see all member countries come under one president, with uniform policies and all citizens to be involved in the election of the federal president.

During their last summit in Kampala last year, the EAC heads of state directed partner states to hold consultations and agree on the final draft of the roadmap before it is presented to the Summit this year for approval.

2016 deadline

Early this year, EAC ministers were directed to initiate the process of drafting a constitution for the political federation ahead of the 2016 deadline.

A proposal by the ministers shows that the federal state will comprise an executive, legislature and judiciary, with functions based on the principle of separation of powers among the three organs. Constituent states of the federation will remain autonomous on matters that do not fall under the federal government.

The powers and functions proposed for the federal government will be informed by international practice: It will have control over defence and security, foreign affairs and international trade, immigration, infrastructure development and the federal public service, among other things.

The constituent states will be expected to implement federal laws and policies.

Prof Peter Kagwanja, executive director of the Africa Policy Institute, said that while the pillars of the economic federation have been established and the drafting of a regional constitution can take a short time, implementing it would take much longer.

He pointed out two challenges. One, the exploitation of mineral resources in the region, estimated as being about $5 trillion, has major political implications, which may delay the realisation of the federation. Two, there is the status of Zanzibar, which already has a federation arrangement with Tanganyika, and the place of the kingdoms of Uganda.

“The regional constitution must clearly define what will be federation issues, while at the same time leaving national issues intact,” said Prof Kagwanja.

The EAC countries have agreed that the presidency of the federation should be rotational, based on defined criteria, and that this should be the preserve of sitting presidents.

But this is where a major challenge lies, because the partner states have to decide whether the president will be elected through a collegiate system or universal suffrage. If it is rotational, then it may well turn out to be the responsibility of the partner state concerned to pick their person, just as happens with the EAC Secretary-General’s position.

Prof Kagwanja argued that a rotational presidency would not be an issue, because there is the precedent of the African Union, where the chairman — who serves for one year — is the legal spokesman of the continent.

He, however, noted that unlike the European Union, where the parliamentary system is given prominence with foreign ministers and specially elected MPs to the European parliament, the EAC is experimenting with the presidential system.

Uganda’s President Yoweri Museveni has long advocated the fast-tracking of the political federation, emphasising that the region should not only be an economic bloc, but also a political one.

Strictly economic integration

In his address last year as the chair of the EAC, President Museveni said that even if the economic integration were successful, there were certain issues that could not be addressed through economic integration alone. He said that it was not easy, for instance, to address the issue of common defence when you have different countries.

The EAC presidents will decide on whether all the five member states will join the federation at the same time or on the principle of variable geometry, which allows member countries to join the federation at different times and stages.

The admission of new members to the political union is also another matter to be decided on.

It will be known after the Heads of State Summit whether the presidents will go with the partner states’ proposal to have a political federation that comes into being instantly or the one that favours a gradual and incremental process that will culminate in a full-fledged political federation.
Uganda has proposed that the political federation take a transition period of five years to enable the development of federal institutions, but the other four partner states are asking for a longer period, to be determined later, as part of the phased roll-out that will allow for the building of strong institutions, confidence and mutual trust among member states.

Member states will also know whether they will have to lose their sovereignty once a political federation is in place as proposed by Uganda, or whether they will retain some level of sovereignty.

The fear of loss of national identity and the political power that goes with decision-making could be another headache. Memories of the collapse of the initial Community in 1977 following political differences among the three leaders and disputes over shared resources still lingers, raising apprehensions about political integration.

Then there is the issue of disparate constitutions, with some members having done away with the presidential term limit or being in the process of doing so.

Experts have expressed concern about the divergence in governance and democratic practices, accountability, respect for human rights and access to justice.

Dr Ben Sihanya, an international law lecturer at the University of Nairobi, said that sovereignty will not be a factor because it is the people who want a region that is economically integrated.

“So long as partner states are members of the EAC, African Union and United Nations, they have already ceded a portion of their sovereignty. But I believe that the citizens of East Africa are more concerned with a strong Customs Union than a political federation,” said Dr Sihanya.

He is concerned that while most of the partner states have adopted or are in the process of adopting progressive constitutions, the challenge is that some countries do not obey their constitutions and institutions.

He noted that it would be difficult to achieve a political federation when national institutions are not being respected.

The EAC partners have however agreed and adopted a draft protocol on good governance seeking to push for democratic elections and peaceful transition, potentially saving the region from recurring political instability.

They have agreed to put in place mechanisms for the appointment of an electoral management team to prevent bungled elections.

Characterised by controversy

Dr Sihanya argues that so long as elections in Kenya and Uganda — the two countries that are supposed to provide leadership — continue to be characterised by controversy, it will be difficult for others to buy into the idea of political federation.

The EAC political federation is the fourth and last pillar of the EAC integration, which aims at integrating the people of the region in all aspects of life.

The Customs Union, Common Market Protocol and the Monetary Union, which was signed last year by the Heads of State, are under implementation.

However since its signing, only Rwanda and Tanzania have ratified the Monetary Union Protocol for implementation. Kenya, Uganda and Burundi are still in the process of ratifying it.

(Source: Norwegian Council for Africa)

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