By Bashir M. Sheikh Ali
The East African Court of Justice issued an interim order directing the East African Legislative Assembly not to swear in Somalia’s nine nominated representatives. The order followed a legal challenge by Somali applicants who argue that the nomination process did not comply with Article 50 of the EAC Treaty. Because the swearing-in was imminent and seating the nominees would make any later remedy effectively impossible, the Court intervened to preserve the status quo. Courts routinely employ such measures when an imminent action risks causing irreparable harm that cannot be remedied once events move ahead. The ruling therefore does not reflect a view on the merits, nor does it signal any reluctance to decide the case. It is a standard protective tool used to prevent irreversible consequences while the Court examines the legality of the underlying process.
This is also the first instance in which Somalia has been required to answer before a regional court for how it implements its obligations under the EAC Treaty. To understand what the ruling means—and what it does not—it is necessary to follow the Court’s analytical sequence: jurisdiction, the test for interim relief, and how Somalia’s situation fits within that jurisprudence.
The applicants are three Somali politicians who challenge the October 2025 process that produced Somalia’s nine nominees to the EALA. They allege that the joint sitting of the Federal Parliament failed to meet the transparency, competitiveness, and representativeness requirements of Article 50. They contend that the ruling Justice and Solidarity Party (JSP) controlled the process, that opposition voices and under-represented sub-clans were excluded, and that the language of 4.5 balance was invoked rhetorically while the outcome was engineered to benefit a narrow political bloc. The Court summarizes these allegations, noting in particular claims of procedural opacity, partisan dominance, exclusion of minorities, and disputed assertions about the existence and role of opposition parties within Parliament.
Somalia argued that its bicameral structure required an adaptation of Article 50’s “National Assembly” requirement: The Federal Parliament as a whole, sitting jointly, was treated as the electing body. The government maintains that the procedure complied with both domestic law and the Treaty. The Court does not decide that dispute at this stage. Instead, it asks whether it even has jurisdiction to hear this kind of challenge. To answer that question, the Court leans heavily on its prior jurisprudence. It distinguishes, with some care, between two categories of EALA disputes: pre-seating challenges to the validity of the election process itself (Article 50), and post-seating disputes concerning the “membership” of someone already sworn as a member (Article 52). It found that pre-seating cases fall squarely within the Court’s interpretive and enforcement jurisdiction under Articles 23, 27 and 30(2) of the Treaty. Once members are seated, however, any question about whether they should continue to hold office is reserved by Article 52 to domestic institutions in the partner state.
The Court then recalls a number of pre-seating cases in which it intervened to prevent flawed elections from maturing into representation at Community level, and contrasts them with other cases where it declined jurisdiction once members had already been sworn in and the dispute had shifted to a “question concerning membership” under Article 52. That distinction is decisive here. The Court notes that none of Somalia’s nominees has taken the oath or sat in EALA; the plenary at which oaths are to be administered is scheduled for 23 November 2025. The challenge, therefore, is “classically a pre-seating challenge” and “wholly outside” the strand of cases that applies only after seating under Article 52. Having determined that the case is a pre-seating matter under Article 50, the Court asserted jurisdiction over the matter.
Once it decided on jurisdiction, the Court turns to interim relief. Here it expressly adopts the classic three-prong test of (i) whether there is a prima facie case with a probability of success; (ii) whether the applicant would suffer irreparable harm not compensable by damages if relief is refused; and (iii) where the balance of convenience lies.
On the first prong, the Court does far more than say “there is a serious issue.” It engages Somalia’s specific institutional architecture. It notes that in most partner states with bicameral legislatures, the lower house functions as the “National Assembly” for Article 50 purposes. Somalia’s Provisional Constitution, however, creates a Federal Parliament in which both houses jointly exercise legislative authority. The government defends a joint-sitting model; the applicants contend that the joint procedure was manipulated to favor the ruling party and exclude opposition and minorities.
The Court then places Somalia’s facts alongside its precedents. It recalls a case where it invalidated a ruling-party dominated voice-vote process that lacked genuine competition, and in another case where it granted an injunction where Uganda’s rules failed to provide proportionate representation. It explicitly likens the allegations about JSP dominance in Mogadishu to the all-NRM slate in Uganda. The Court recites the applicants’ claims: handpicking that ignores 4.5 diversity, exclusion of under-represented minorities and opposition factions, and misstatements about whether “opposition parties” exist at all. On the face of the material before it, the Court concludes that the impugned process, prima facie, contravenes Article 50 by failing to ensure a transparent, competitive and representative election. These are, in its words, “serious questions… that stand the probability of success and ought to be tried on the merits.”
On irreparable harm, the Court focuses on the institutional consequences of allowing the nine nominees to be sworn in before the references are decided. Once they become full members of EALA, any attempt to remove them would be framed as a “question concerning membership” under Article 52 and would fall exclusively within domestic jurisdiction. The Court recalls its own decisions where it held that such questions lie beyond its reach once seating has occurred. If that happens here, any Treaty violation would become irreversible at Community level. No subsequent judgment could dislodge improperly seated members.
Only after satisfying itself on those two prongs does the Court consider the balance of convenience. It notes that Somalia has, since accession, had no seated representatives in EALA, and the Assembly has continued to function with 63 rather than 72 members, without evidence that the absence of Somali members has paralyzed its work. A short further delay, coupled with the Court’s commitment to an expedited hearing, preserves the existing position with “minimal inconvenience.” Refusing relief, by contrast, would permit the nine nominees to be sworn in at the November plenary. If the references were later upheld, the Community would be faced with “the irreversible presence” of members elected through a process found to breach Article 50, and the Court would be powerless to correct the violation at regional level. That outcome would cause greater damage to the integrity of the Community’s institutions, public confidence in the integration project, and the rule of law, than any transient delay in Somalia’s full representation. In light of that, the public interest clearly favors restraint.
For those who supported the challenge, the injunction is a welcome development. Yet a jurisdictional wrinkle leaves one remaining risk. Although the order is designed to prevent harm to the Community, none of its organs is a party to the litigation. If the applicants and the Somali authorities were to settle and withdraw the reference, the interim order would lapse and EALA would regain full discretion to proceed with the swearing-in. Unless another Somali citizen were ready to file a new reference immediately and secure emergency interim relief, the window for judicial scrutiny could close before anyone else could act. EALA might, as a matter of prudence, choose to wait for political clarity, but as a non-party it would have no legal obligation to delay. A rapid seating of the delegation after settlement would shift the issue into the Article 52 domain, which the Court’s jurisprudence treats as non-justiciable, leaving serious procedural concerns with no viable regional remedy.
In my Horn Observer analysis of the EALA dispute,[1] I argued that accession places Somalia within a binding supranational legal order in which the legality of EALA elections must be assessed through Article 50 and the Treaty’s autonomous standards rather than through political accommodation. Likewise, in my Heritage Institute report on Somalia’s accession,[2] I explained that joining the Community requires a wholesale strengthening of Somalia’s legal and institutional architecture—domestication of the Treaty, harmonization of national laws, and creation of a judiciary capable of applying EAC law—so that supranational obligations can operate as intended. Taken together, a simple point becomes clear: accession carries legal consequences that are enforced through judicial processes, not diplomatic improvisation.
The interim order does not brand Somalia a violator, nor does it predetermine the outcome. What it does is insist that the legality of Somalia’s first EALA election be examined while the matter remains justiciable and before any alleged Treaty breach becomes entrenched in the Community’s only legislative organ. For a country that has just joined a rules-based bloc, that is not an affront. It is an invitation to meet the standard it accepted. It is also a moment that requires sobriety from both Somalia and its closest regional partners.
For Somalia, the more responsible path is to confront the litigation through legal argument rather than political maneuver. The country should craft a defense grounded in the text and purpose of Article 50, informed by the logic of its federal constitutional structure and by the Court’s jurisprudence in the Kenyan, Ugandan, and South Sudanese pre-seating cases. That form of engagement would protect Somalia’s immediate interests while demonstrating that accession was understood as a commitment to legality, not as reliance on political intermediaries to mask procedural shortcomings. If Somalia uses this moment to clarify its internal nomination procedures, close the institutional gaps exposed by the challenge, and strengthen the legal capacity required to manage Treaty obligations, the long-term effect will be a stronger, more credible institutional posture within the Community.
Kenya, for its part, should exercise restraint in how it channels its instinct to assist Somalia. Regional solidarity should not be expressed through political intervention that dilutes or pre-empts a judicial process already underway. The most constructive support Kenya can offer is technical rather than political: assistance in interpreting Article 50, comparative guidance on how bicameral legislatures operationalize EALA elections, and capacity-building that helps Somalia participate in the Community on a legally secure footing. Kenya and other partner states strengthen the EAC not by insulating one member from scrutiny but by defending the integrity of the Community’s legal institutions. A rules-based regional project can withstand difficult cases; what it cannot survive is the perception that its members treat the Court’s authority as negotiable.
Bashir M. Sheikh Ali
Email: bsali@yahoo.com
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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.
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References
[1] Examining the Legal Basis for Challenging Somalia’s EALA Nomination Before the East African Court of Justice.
[2] Somalias-Accession-to-EAC.pdf-English-v-one.pdf.