Inter-country relations facilitate movements and business from one country to another. Cross-border players include different countries or involve people from different countries.
This entails movement from one country to another delivering goods, labour or even services. The belief is that the practice of law is more important to economies than ever, but also with the fact that lawyers are playing an increasingly important role in business transactions, alongside providing a necessary service that impacts all aspects of society by framing and guiding social and business relationships.
This has real benefits for both advocates and the public. With cross-border legal practice, advocates are able to follow their clients and can choose who they want to represent them, wherever they are. The East African Community has indeed become successful in establishing a basic legal framework to facilitate the cross-border practice of law in this community.
As an Intergovernmental Organization, the East African Community that was established in 1967 with three member states which are Uganda, Kenya and Tanzania whose membership later increased with the inclusion of Burundi, Rwanda, South Sudan and recently the Democratic Republic of Congo in 2022, it created a common market for its partner states.
To actualize this, the common market involves the elimination of all obstacles to intra-community trade in order to merge the national markets into a single market bringing about the conditions as close as possible. So it is a union of two or more territories to form one common territory in which there is free movement of persons, goods, labour services and capital.
With the coming in place of the East African Community saw the Protocol on the establishment of the East African Community Common Market which was signed in 2010 by Tanzania, Burundi, Kenya, Rwanda, and Uganda as partner states and entered into force. The partner states seek to achieve balanced growth and development across the region.
As per cross-border practice, we are looking at temporary provision of legal services across boundaries which includes having permission to appear in Court in the host country with the supervision of a local advocate. On the 6th day of December 2024, a seasoned politician and advocate in Kenya who applied to the Uganda Law Council for a temporary practising certificate was denied the same.
The East African Community Common Market Protocol necessitates that partner states should undertake to observe the principle of non-discrimination of nationals of other partner states on grounds of nationality; accord equal treatment to nationals of other partner states and share information for the implementation of the protocol.
Furthermore, this protocol guarantees that partner states should ensure the free movement of services supplied by nationals of partner states and the free movement of service suppliers who are nationals of partner states within the East African Community.
National legislations in partner states governing professional legal practice contain reciprocity clauses, which may facilitate cross-border legal practice. As anyone within Uganda, they are bound by the provisions of the Constitution of Uganda, 1995 together with the East African Common Market Protocol and shall not derogate from them.
With primary regard to the Constitution, in the determination of civil rights and obligations or any criminal charge, a person shall be entitled to a fair, speedy and public hearing before an independent and impartial Court or tribunal established by the law.
In addition, every person charged with a criminal offence shall be permitted to appear before the Court in person or by a lawyer of his or her choice. Most important to note is that there shall be no derogation from the enjoyment of the right to a fair hearing.
In exercise of the prevalence of these freedoms, the East African Community Protocol emphasizes the prevalence of the sovereignty of partner states. However, the realization of the various provisions emphasizing the life of the cross-border legal practice remains an option and not strictly adhered to in mandatory terms of compliance by partner states.