“If we don’t, then we will forever be dependent,”
As the East African Court of Justice (EACJ) scales up sensitisation on arbitration in the partner states , The New Times’ James Karuhanga later caught up with Justice Johnston Busingye, president of the Rwandan High Court and a Principal Judge at the EACJ on the workings of the 10 year regional justice system. Excerpts:
Briefly tell us, what the EACJ arbitration jurisdiction is?
The arbitration jurisdiction of the East African Court of Justice is one of the various jurisdictions conferred upon the EACJ by the East African Community (EAC) treaty.
Specifically on arbitration, it [the treaty] confers upon the court an arbitration jurisdiction whereby parties to a conflict can opt for arbitration rather than litigation and chose the EACJ to do the arbitration. Arbitration is a method of resolving disputes without going to the typical court.
Why is it [EACJ’s arbitration jurisdiction] so important?
Arbitration, I think has got its roots in amicable settling of disputes. I think it is not just a creation of this treaty – it has existed in all ages and centuries. Even in families, I am sure, there is a lot of arbitration that goes on before you invite the outer world to come and help sort out problems.
So, the importance of it is not only that it is cheaper, faster and more amicable, it also is, in my view, in the normal course of doing things – people should end up having resolved the conflict, and having remained with their business relationship and friendship or partnership going on smoothly.
But how then, is it different from our local Abunzi system?
It is probably not very much different in the context. With Abunzi, probably the difference is that they deal with low value arbitrations – it is called mediation and, actually, mediation is one form of arbitration.
There is mediation, there is conciliation, and there is arbitration, but Abunzi are probably a low form of arbitration, low value litigation, low value conflict resolution within the country.
So, the difference is that arbitration by the EACJ’s arbitration jurisdiction might probably be at a higher value, higher level with more qualified people, serious legal arguments…
The court’s arbitration jurisdiction has been there for about ten years?
Yes, ever since 2001.
It has not received any cases at all! How do you explain that?
I have a feeling that East Africans are not aware… about the existence of this jurisdiction. I believe that around the region, there must be some arbitrations going on – in fact some of them may be taken to Paris, to London, to New York, and so on, because people may not be aware.
You see, awareness is some kind of vicious cycle; one only becomes aware from some two or three cases which come to the court. But if they don’t come to the court, then the readers, those who follow, those who want to know what is happening, may not know that it is there.
Others may know that it is there but may not have complete trust in the quality of work to expect out of it, having not seen one case from the court resolved through arbitration.
There may be a number of reasons. Having said that, I believe that there is no good reason why we should not start to see some arbitration cases coming in, after making East Africans aware that it exists and it is cheaper, fairer, and is as good… and that we can bring in expertise that we probably might not have.
There are arbitration cases in the region but people instead take them to New York, London or elsewhere. What do you make of this?
Sometimes it is branding. Sometimes it is our own historical context. Sometimes it is our stereo types. There are many reasons. If someone comes here and they are doing a contract for a road, whenever you reach this article on arbitration, they want you to put Paris, or New York or London. They want a place they know, or a place they think is excellent in arbitration.
But the point I was trying to make was that the arbitration decisions I read whenever I do some research … I find that this world has become a very small world … you choose Paris but when you reach Paris, you find that James Karuhanga and Johnstone Busingye are the arbitrators yet you left them here in Kigali.
Either your lecturer, or your employer or your friend told you that Paris is the best place. To me, Paris, or New York or London, is not the important thing. The important thing is who is doing the job?
Secondly, I must point out that as East Africans, as Africans, we need to affirm our own confidence in our own institutions, in our own things, in our own initiatives, and use them, build them and build our own capacities to deliver because if we don’t, then we will forever be dependent.
Despite the fact that advantages seem to outweigh disadvantages, in the workshop, participants noted that there could be downsides to arbitration. People need to make informed choices. Please shed some light possible downsides.
Every arbitration has got a down side. Why we say that it is faster, cheaper, and all, is that the fastness of it may depend on how complex the matter is. It might depend on how many people are involved, and it might depend on the good will of the parties to get things done quickly.
While we say that it is cheaper … if it drags on and on, the cheapness disappears because you are now going into costs that you probably did not think should arise because you are in an arbitration jurisdiction.
I think there is a couple of down side issues which in my view, are small and wouldn’t constrain the success of the arbitration movement in the region or outside the region.
This still sounds, to many people, as being too good to be true. I mean the advantages. What is your take on that?
People should not take any conflict resolution as a very good thing. The ideal situation is that there should be no conflict. So, once there is conflict, which ever way you go, the arbitration way or the court way, you should not base on the premise that the whole thing is a bed of roses.
I don’t think people should paint it like the best thing that has ever happened to mankind. You should go into it ready with your facts, ready with the truths. And, there are rules, there are conventions about this. The fact that there is a conflict, in my view, should tell everybody that there is no bed of roses in such a situation.
It was revealed that the arbitration process is impartial. This didn’t sound proof as well. The arbitrators are human beings. Anything can happen.
Arbitration is done by human beings as you say. There is no litmus test for impartiality. When we chose arbitrators – they sign an undertaking that they are going to be impartial.
We believe, we trust them, we not only pay them to do it but we think that they are men and women of impeccable integrity and they won’t go as low as being fraudulent. Once in a while, human beings fail some of these standards.
Normally, a court waits for cases to come in. But how come the EACJ is going out of its way, sort of, to sensitise, or campaign, if I may put it that way? Why?
I am not the spokesman for the EACJ but I would imagine that this is not going to be part of the programme of the EACJ all the time.
What I think is that it is done so that people get aware.People need to know that this jurisdiction exists.
Probably, the other organs of the East African Community, the legal and judicial sub-committees, the East African Community ministries in the different states, consulting researchers and so on, may have to take on the task of talking about, not only the arbitration jurisdiction, but the whole court and what it can do.
What we thought was, look, people, this is ten years!... Maybe we need to get out of our traditional robes and, once in a while, say that here we are… this opportunity exists, take advantage of it.
We don’t wish to be called campaigners for the court as you said but we would want to act as some kind of catalyst, some kind of curtain raiser in the hope that our colleagues in the other organs will take it up and drive that agenda.
The EACJ is based hundreds of miles away in Tanzania. What about the issue of accessibility. What is in the pipeline, I mean, for Rwandans, at least?
Late last year and early this year, we embarked on developing a five-year strategic plan for the EACJ. Part of the activities planned include to be visible in the countries of the EAC and to be accessible by citizens.
Right now, the court is still very much based in Arusha, although even that, by the way, is not the permanent seat. The treaty says the summit of the community will decide on the permanent seat.
Right now I think it is still a temporary seat. But what will happen in our strategic plan is, we intend to open sub-registries in the different countries. Sub-registries mean that a citizen of any country can walk to the capital and file a case.
In this way I have a feeling that it will succeed because if it remains only in Arusha , for sure, people might start to feel it doesn’t belong to them. And that is a bad feeling… We need to budget on accessibility as a major or a deliberate item on the agenda.