Examining the Legal Basis for Challenging Somalia’s EALA Nomination Before the East African Court of Justice

by: Bashiir M. Sheikh Ali | 16 November 2025 16:48

EALA logo. Photo courtesy

Somalia’s accession to the East African Community (EAC) in 2023 marked a transition from an exclusively domestic legal framework to a dual system in which national institutions will need to operate alongside binding supranational obligations. Few tests illustrate this shift more clearly than the dispute surrounding Somalia’s nomination of its first representatives to the East African Legislative Assembly (EALA).

According to media reports, a group of Somali legislators has challenged the legality of the nomination process before the East African Court of Justice (EACJ). Because the Court has not yet published the pleadings, the analysis in this essay relies on publicly reported allegations; any conclusions drawn here remain subject to revision should the official filings diverge from the facts reported.

Somalia’s entry into the EAC carried with it a set of binding obligations arising from the Treaty for the Establishment of the EAC. As I have explained more fully here, the Treaty establishes a distinct legal order complete with its own hierarchy of norms, guiding principles, enforcement mechanisms, and judicial institutions. By joining the Community, Partner States knowingly accept limits on aspects of their previously unrestricted sovereignty in fields governed by the Treaty, and they undertake to apply the Community’s legal norms consistently and in good faith. This framework is essential for understanding both the rules that regulate elections to the EALA and the authority of the EACJ to scrutinize those elections.

The supranational character of the EAC legal order has several important features. First, the Treaty’s provisions create binding obligations that are not dependent on domestic incorporation for their validity. Partner States, by acceding to the Treaty, accept its normative force and undertake to give effect to its requirements. The obligations set forth in the Treaty are autonomous; they do not derive their authority from national parliaments or executives. Second, in areas falling within the competence of the Community, EAC law enjoys primacy over inconsistent national law. This principle is essential for guaranteeing uniformity and preventing the fragmentation of obligations across Partner States. Third, the Community legal order confers rights directly upon individuals. For example, Article 30 of the the Treaty allows any person resident in a Partner State to bring before the EACJ a challenge to the legality of any act, regulation, directive, decision, or action taken by a Partner State or by an institution of the Community, on the ground that it is unlawful or infringes the Treaty. This mechanism distinguishes the EAC from traditional intergovernmental organizations and allows the Court to review domestic practices directly, without requiring referral through national institutions.

Within this system, the EACJ plays a central role. For instance, the Court is the final authority on the interpretation and application of the Treaty. Its judgments guarantee the consistency of EAC law and ensure that Partner States observe their obligations. National courts remain competent in matters internal to their own constitutional arrangements, but they do not determine compliance with the Treaty, nor do they review the legality of Partner State actions in relation to EAC obligations unless expressly provided. In the context of EALA elections, this division of jurisdiction is reinforced by Article 52 of the Treaty, which reserves to national courts “questions of membership” to EALA but does not confer on them the authority to evaluate whether the procedures used to elect members comply with Article 50(1). The legality of the process—not the legitimacy of individual membership—is the province of the EACJ.

The EACJ’s jurisdiction over matters relating to the election of EALA members has been clarified in two major decisions. In Among A. Anita v Attorney General of Uganda, the applicant challenged the legality of Uganda’s rules for electing its EALA representatives under Article 50(1) of the Treaty. Uganda argued that the dispute fell under Article 52 and therefore belonged exclusively to national courts, but the EACJ rejected this position. The Court held that examining whether national rules and processes comply with Article 50(1) is squarely within its jurisdiction under Articles 23, 27, and 30, because the issue concerns adherence to Treaty obligations rather than disputes over the qualification or seating of individual members. Substantively, domestic election rules satisfy Article 50(1) when they provide equal opportunity to become a candidate, allow full participation and competition among the required groupings, and ultimately ensure their effective representation in the EALA. Further, Partner States cannot insulate domestic electoral procedures from supranational review by invoking Article 52.

The second significant precedent is Wani Santino Jada v Attorney General of South Sudan, which concerned allegations that the President of South Sudan had directly appointed nine nominees to EALA without conducting the parliamentary election required by Article 50(1). Reviewing the circumstances on their face, the Court found that the process appeared inconsistent with the Treaty because Article 50(1) demands an election by the National Assembly, not executive designation. Given the imminence of the swearing-in ceremony, the Court issued interim orders restraining EALA from administering the oath of office pending a full hearing. This case illustrates the Court’s willingness to intervene to prevent possible Treaty violations from taking effect, and it confirms that the EACJ may review state conduct affecting EALA representation so long as the question concerns the legality of the process rather than the entitlement of a specific individual to hold office.

Against this jurisprudential backdrop, Article 50(1) of the Treaty imposes clear and binding obligations on Partner States. The provision requires that each State elect nine members to EALA through its National Assembly and that the elected representatives, “as much as feasible,” reflect political parties, shades of opinion, gender representation, and other interest groups. While the Treaty allows each National Assembly to determine its own procedure for conducting the election, this discretion is not unfettered. As the Uganda case shows, the procedures must be consistent with the overarching principles of good governance, democracy, rule of law, and participation embodied in Articles 6(d) and 7(2) of the Treaty. Partner States must adopt rules that ensure transparency, fairness, and genuine opportunity for competition.

In the context of Somalia’s EALA nomination, media reporting suggests that the challengers claim Somalia’s process departed from the Treaty’s requirements in several ways, though the accuracy of those reports can only be assessed once official documents become available. The allegations reportedly include that Somalia’s Federal Parliament did not conduct a competitive, transparent election and instead endorsed a list emerging from political agreements or internal negotiations without broad participation or open competition. The allegations also appear to include that Somalia has not adopted domestic rules of procedure specifically governing the election of EALA representatives. These assertions resemble the kinds of procedural defects that could lead the Court to conclude that national rules are inconsistent with the Treaty because they do not provide adequate procedures, representation, or transparent selection.

Another concern reflected in media accounts is whether Somalia’s process permitted the participation of political parties, women, youth, and other interest groups. Article 50(1) does not require proportional representation or fixed quotas. However, it does require that representation be feasible. As the Court explained in Among, feasibility is assessed through the design of the process. If the procedures prevent the participation of significant constituencies, then the State may be in violation of the Treaty even if the ultimate list includes individuals from multiple backgrounds. The emphasis is on opportunity, not outcome.

Media reporting also raises questions about possible executive influence in the nomination process, though this too can only be confirmed once official records are available. It is reported that the allegations include that the shortlist or final list of nominees was shaped largely through executive involvement rather than through an independent parliamentary election. If these assertions are proven, the parallels with the South Sudan precedent become significant, as the Court held that even the appearance of an executive-driven appointment process—unmediated by proper parliamentary procedures—could amount to a violation of Article 50(1). The similarity between that scenario and the allegations concerning Somalia, if proven in court, would indicate a substantial risk of non-compliance.

In evaluating the Somali situation within the broader supranational framework, it is important to recall that Partner States cannot rely on internal political dynamics to justify deviation from Treaty obligations. Once a State accedes to the Treaty, legal compliance becomes an objective requirement assessed by reference to Community standards, not domestic political convenience. Where domestic practices conflict with the Treaty, the Treaty prevails. This principle ensures uniformity, predictability, and legal integrity across the region. Somalia’s domestic parliamentary traditions, political context, or internal balance of power cannot therefore override the supranational obligations imposed by Article 50(1).

The remedies available to the Court depend on the stage of the process. If the Somali nominees have not yet been sworn in, the Court may issue interim orders similar to those granted in the South Sudan case, preventing their seating until the legality of the process is determined. If they have already taken the oath, the Court may avoid retroactive unseating—though this is not an absolute rule—and may instead issue prospective orders requiring Somalia to adopt compliant procedures for future elections. In both the Uganda and South Sudan cases, the Court balanced the need to protect the integrity of the Treaty with the practical consequences of disrupting a regional legislative body’s functioning.

The likely outcome of the Somali case, based solely on reported allegations, is that the Court will assert jurisdiction under Articles 23, 27, and 30 and reject any argument that the matter falls exclusively within national jurisdiction under Article 52. The Court will then examine whether Somalia conducted a genuine parliamentary election, whether transparent procedural rules were adopted, whether representation was feasible, and whether executive involvement compromised the process. If the reported deficiencies are proven, the Court may conclude that Somalia failed to meet the requirements of Article 50(1) and may direct the State to rectify its procedures. These conclusions remain provisional; they may change significantly once the actual pleadings clarify the factual circumstances.

Somalia’s first engagement with the supranational legal mechanisms of the EAC carries broader implications. By acceding to the Treaty, Somalia has accepted that its internal procedures may be reviewed by the EACJ, and this dispute marks the first practical exercise of that authority. The discipline imposed by supranational oversight is foundational to ensure that integration operates through uniform standards, predictable processes, and enforceable legal obligations. The controversy surrounding the EALA nominations is therefore less about the individuals involved and more about Somalia’s entry into a legal order in which state conduct is subject to binding regional scrutiny. It signals the beginning of Somalia’s adjustment to a system that requires legal harmonisation, institutional responsibility, and adherence to supranational norms—an evolution that should shape Somalia’s legal system and its participation in the Community.

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The author is a Somali-American lawyer based in Nairobi. The views expressed in this analysis are his own and do not reflect those of any organization with which he may be affiliated. He can be reached at bsali@yahoo.com.

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