When the Ugandan opposition leader, Dr Kizza Besigye was kidnapped in Nairobi on November 16 by security agents and rendition back to his country, it put both the Kenyan and Ugandan governments in the limelight for violating human rights laws.

Amnesty International strongly condemned Kenya for not following the extradition process. Also, it raised concerns that Nairobi has become notorious as a place where foreign dissidents are abducted with abandon.

Amnesty also took issues with the Ugandan government terming the abduction as part of a growing and worrying trend of transnational repression with governments violating human rights beyond their borders.

“The Ugandan government has a track record of systematically cracking down on opposition political parties through abductions, arbitrary arrests and unlawful detentions on trumped-up charges.,” said Tigere Chagutah, Amnesty International’s Regional Director for East and Southern Africa.

However, the incident has now turned into a testing ground on how partner states of the East African Community (EAC) are adhering to various protocols of the regional economic bloc, especially the Common Market Protocol.

This came after the Uganda Law Council (ULC) denied Kenya’s Senior Counsel, Martha Karua a temporary practising certificate to represent Dr Besigye, contrary to the EAC Mutual Recognition Agreements.

Dr Besiye and his ally, Hajj Obeid Lutale are currently undergoing trial at the General Court Martial in Kampala, charged with possession of illegal arms in Kenya, Greece and Switzerland to overthrow the government of President Yoweri Museveni.

The decision by ULC to deny Ms Karua a temporary certificate has caused an uproar within the Law Society of Kenya (LSK), which has not only accused Uganda of contravening EAC Mutual Recognition Agreements but also of not being reciprocal given that several Ugandan lawyers are allowed to represent their clients in Kenyan courts as a matter of routine.

“We express our unqualified disenchantment with the derogatory, contemptuous, and highhanded decision taken by the Law Council of Uganda. This decision not only offends the mutual cooperation between the Kenyan and Ugandan bar but how it was communicated and the reasons given are ludicrous and distasteful,” said LSK president Faith Odhiambo in a statement released on December 10. 

“It is inconceivable that the Law Council of Uganda would hold such little regard for Kenyan practitioners, no less, a reputable and long-standing member of the Senior Counsel Bar,” she continued.

The LSK threatened to suspend the admission of Ugandan advocates into Kenyan practice in retaliation, given that the decision is a setback to regional legal cooperation and respect between the Kenyan and Ugandan bars.

“It is inconceivable that the Law Council of Uganda would hold such little regard for Kenyan practitioners, no less, a reputable and long-standing member of the Senior Counsel Bar,” said Ms Odhiambo.

It was interesting that the president of the Uganda Law Society (ULS), Isaac Ssemakadde has also condemned the ULC decision arguing that it disregarded Article 19 of the International Bar Association (IBA).

This article says; “Where a person involved in litigation wishes to engage a lawyer from another country to act with a local lawyer, the appropriate association of lawyers shall co-operate in assisting a foreign lawyer to obtain the necessary right of audience provided that he or she has the qualifications and fulfils the conditions required to obtain that right”. 

The EAC Common Market Protocol, in Article 11, calls for enhancing labour mobility within the Community through harmonisation and mutual recognition of academic and professional qualifications. To actualise this vision, the Partner States have committed to Mutual Recognition Agreements (MRAs) aimed at recognizing academic and professional qualifications, along with associated experiences, licenses, and certifications obtained in other Partner States.

These apply to all the eight EAC partner states including Kenya, Uganda, Tanzania, Somalia, South Sudan, Burundi, Rwanda and the Democratic Republic of Congo.

The MRAs represent a significant stride towards harmonising standards and facilitating the movement of services and labour across borders. These agreements have been meticulously negotiated and ratified, serving as foundational pillars for the realisation of a cohesive and dynamic common market within the EAC.

Currently, four (4) MRAs have been successfully negotiated and signed. These encompass vital professional domains of Accountancy; Engineering; Architecture; and Veterinary Science.

In theory, lawyers from the East African Community (EAC) partner states should be able to practice in all eight partner states without restriction, since the Common Market Protocol supports cross-border legal practice.

However, there are some challenges; Legal instruments to implement cross-border legal practice have been drafted but are yet to be fully adopted.

At the same time, some partner states have adopted laws that favour cross-border legal practice, while others that restrict the practice of foreign lawyers have not. The East African Cross-Border Legal Practice Bill—which could open the door for unfettered cross-border practice—is yet to be passed.  

The president of the East Africa Law Society (EALS), Ramadhan Abubakar said that the decision by the LCU is against the spirit of EAC that calls for progressive integration and erodes the gains that have been made in pursuing cross border practice of advocates.

He called for partner states to urgently sign and implement a Mutual Recognition Agreement (MRA) for lawyers to create a framework for mutual recognition of professional qualifications. 

“The draft MRA has been prepared by EALS and is ready for signing,” said Mr Abubakar, who added that partner states should consider and pass the East African Cross-Border Legal Practice Bill. 

However, LSK argues that Kenya and Uganda—as the founding members of EAC going back to its inception in 1967—have always had bilateral and mutual agreements where lawyers from the two countries practice without restriction.

Ms Odhiambo pointed out Kenya’s leading role in fostering regional legal cooperation, pointing out that Kenya has made significant strides in allowing the integration of foreign counsel into local practice.