Supranational and National Constitutions in Shaping Human Rights

The EU is used as a case study and the primary area of inquiry of the thesis is the East African Community (EAC), and that is why the thesis adopts a constitutional comparative approach. Is it possible to compare the EU and the EAC?  Two distinct communities with different histories in making? The thesis responds in the affirmative. What is being compared are processes, mechanisms, and actors that contribute to the supranational constitutional order for both communities.

“There is not much contestation on whether the EU forms a supranational constitutional regime. Does the EAC Treaty pose the features of a supranational constitutional order?” reflects Tom Mulisa and continues:

“This is one of the central questions under inquiry in my thesis. It analyses the processes, actors, and mechanisms at the EAC using the constitutional synthesis theory to explain the existence of a supranational constitutional order for the EAC.”

In case the EAC is a supranational constitutional order, could this be an alternative order for the protection of human rights of individuals within the member states, especially those where the human rights protection regime is lacking or weak? The thesis uses the recent case law of the East African Court of Justice where human rights cases have been adjudicated through the Court’s interpretation of the rule of law and good governance in favour of the applicants. The Court does not have jurisdiction to deal with human rights cases but has proactively through what some have termed as judicial activism responded to human rights cases. The Court held that it had an obligation to “provide a check on the exercise of the responsibility … to protect the rule of law..”, and to answer the question of jurisdiction the Court states that “While the Court will not assume jurisdiction to adjudicate on human rights disputes, it will not abdicate from exercising its jurisdiction of interpretation under article 27(1) merely because the [r]reference includes an allegation of human rights violation….” Even though much criticised this has set a precedent in what the thesis terms as Jurisprudence for subsequent human rights cases that alleged violation of the treaty under the rule of law.

The thesis suggests that even though the EAC is distinct from the EU, it's important to take note of the plurality of constitutional sources within the EU constitutional order itself. EU constitutional law is a product of state and EU constitutional sources, as presented by the constitutional synthesis theory. A well-known example pertains to the protection of fundamental rights as general principles of law that the European Court of Justice (ECJ) recognised on the basis of the common constitutional traditions of the member states.

“This thesis urges that law is in place to micro-manage society, and this resonates with community law coming into existence to allow the movement of persons and goods and resolve disputes among member states. In this thesis, it is urged that supranational constitutional order might be more of a spill-over effect, using the functional approach than an intended outcome”, concludes Tom.

Tom Mulisa defends his thesis “Supranational and National Constitutions in Shaping Human Rights Jurisprudence: A Comparison of the East African Community and the European Union” in the Brusewitz room, Östra Ågatan 19, Uppsala, on 1 September 2023 at 10.15. Opponent is Associate Professor Markus Böckenförde from Central European University.

The public defence can also be followed digitally.
Zoom link: https://uu-se.zoom.us/j/67992300265