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Sources of Customs Law

Stephen Otieno

Sources of Customs Law

According to Article 39 of the Protocol for the Establishment of the East Africa Community (EAC) Customs Union, Customs Law include the following:

1. Relevant provisions of the Treaty establishing the EAC;
2. Protocol on the establishment of the EAC Customs Union and its annexes;
3. Regulations and directives made by the Council;
4. Applicable decisions made by the court
5. Acts of the Community enacted by the Legislative Assembly; and
6. Relevant principles of international law.
Customs law of the Community shall apply uniformly in the Customs Union except where otherwise provided in the Protocol.

Relevant Provisions of The Treaty for the Establishment of the EAC

Article 5(2) of the Treaty states, “the Partner States undertake to establish among themselves and in accordance with the provisions of this Treaty, a Customs Union, a Common Market, subsequently a Monetary Union and ultimately a Political Federation in order to strengthen and regulate the industrial, commercial, infrastructural, cultural, social, political and other relations of the Partner States to the end that there shall be accelerated, harmonious and balanced development and sustained expansion of economic activities, the benefit of which shall be equitably shared.”

Protocol on the Establishment of the EAC Customs Union

In tandem with provisions of the Article XXIV.8(a) of the GATT, Article 1(k) of the Revised Kyoto Convention and Article 1(e) of the Istanbul Convention, the EAC Customs Union as established in the Protocol provides for elimination of Customs duties and other charges of equivalent effect imposed on imports; removal of non-tariff barriers to trade among the Partner States; and establishment and maintenance of a common external tariff in respect of all goods imported into the Partner States from foreign countries.
The Protocol on the Establishment of the East African Community Customs Union was signed by the three East African Heads of State on 2 March 2004 in Arusha, Tanzania. The Republics of Rwanda and Burundi joined the Customs Union in 2008 and started applying its instruments in July 2009 (East African Community, 2021). South Sudan joined the East African Community in April 2016.

Regulations and Directives Made by the Council

Subject to the provisions of the Treaty on Establishment of the EAC, the regulations, directives and decisions of the Council shall be binding on the Partner States, on all organs and institutions of the Community -other than the Summit, the Court and the Assembly within their jurisdictions- and on those to whom they may under this Treaty be addressed.

Applicable Decisions Made by the Court

Decisions of the East African Court of Justice on the interpretation and application of this Treaty shall have precedence over decisions of national courts on a similar matter.
Partner States are legally required to immediately take the measures required to implement a judgment of the Court.

Acts of the Community Enacted by the Legislative Assembly

The EAC Customs Management Act (EACCMA) 2004

The EACCMA, 2004 makes provisions for the management and administration of Customs and for related matters. Its structure comprises of twenty-one parts, two hundred and fifty-three sections, and six schedules as follows:

PART I: Preliminary provisions

Short title, application and commencement
Interpretation

PART II: Administration

The Directorate of Customs and its functions
Provisions relating to staff, Customs seal and flag
Officers to have powers of Police and hours of attendance
Offences by, or offences in relation to officers
Exchange of information and common border controls

PART III: Importation

Prohibited and restricted imports
Power to prohibit, etc., imports
Exemptions of goods in transit.
Procedures on arrival
Reports
Arrival overland
Entry, examination and delivery of cargo

PART IV: Warehousing of goods

Dutiable goods may be warehoused
Entry and removal of warehoused goods
Operations in the warehouse
Penalty for unlawfully taking, etc., warehoused goods
Bonded warehouses

PART V: Exportation

Prohibited and restricted exports
Exemption of goods in transit
Entry of cargo for export
Vehicles departing overland
Treatment of goods under transit and trans-shipment

PART VI: Departure and clearance of aircraft and vessels

Clearance required for departure to foreign port
Deficiency or surplus in cargo or stores

PART VII: Importation and exportation by post

Application of Act to postal articles
Time of entry of postal articles
Registered courier companies to land, stores, etc.

PART VIII: Carriage coastwise and transfer of goods

Meaning of carriage coastwise and transfer
Loading, etc. of coastwise and transfer cargo
Transire to be delivered on arrival
Examination of coasting vessels and goods

PART IX: Provisions relating to securities

General provisions relating to giving of security
Enforcement of bonds

PART X: Liability to duty Rates, etc.

Preferential tariff treatment under COMESA and SADC
Exemption regime
Goods imported duty free liable to duty
Time of entry determines rate of duty
Value of goods for export
Allowance for tare
Agency notices
Anti-dumping and countervailing duties
Drawback, remission, rebate and refund

PART XI: Customs agency

Licensing of agency
Liability of duly authorized agent
Liability of owner for acts of agents

PART XII: Prevention of smuggling

Power to require vessels, etc., to bring to or to depart
Power to stop vehicles
Power to search persons
Power to require production books, etc.

PART XIII: Manufacturing Under Bond

Licensing of bonded factories
Manufacturer to provide facilities
Goods from bonded factory may be entered for home consumption

PART XIV: Export Processing Zones and Freeports

Goods entering Export Processing Zones or Freeports
Designated areas in Export Processing Zones or a Freeports

PART XV: Inward and Outward Processing

Procedure of Inward operations
Compensating products and rate of yield
Authorization for Outward Processing
Relief from payment of duty

PART XVI: Application of information technology

Customs formalities may be carried out by ICT
Unauthorized access to or improper use of Customs computerised system

PART XVII: Offences, penalties, forfeitures and seizures

Offence with violence
Offences related to prohibited, restricted and uncustomed goods
General penalty
Restoration of seizures

PART XVIII: Settlement of cases by the Commissioner

PART XIX: Legal proceedings

Actions by or against the Commissioner
Protection of witnesses
Power of officer to prosecute

PART XX: Appeals

PART XXI: Miscellaneous provisions

Schedules:

First schedule: Declaration of Officer
Second schedule: Prohibited and Restricted Imports Generally
Third schedule: Prohibited and Restricted Exports Generally
Fourth schedule: Determination of Value of Imported Goods Liable to Ad Valorem Import Duty
Fifth schedule: Exemption Regime
Sixth schedule: Warrant of Distress

The EAC Customs Management Regulations (EACCMR) 2010

In accordance to Section 251 of the EACCMA, 2004, the Council makes regulations generally giving effect to EACCMA’s provisions and for conduct of any business relating to Customs. Some of the matters covered under this Regulations include importation; internal container depot; warehousing of goods; exportation; departure and clearance of aircraft and vessels; importation and exportation by post; importation and exportation by registered couriers; carriage coastwise and transfer of goods; Customs agents; manufacturing under bond; and export processing zones. The structure of the EACCMR, 2010 comprises of fourteen parts and two hundred and twenty regulations, as listed in the table below.

PART I: Preliminary Provisions

Citation and commencement
Interpretation.

PART II: Administration

Delegation of powers of Commissioner
Working days and hours.
Overtime fees
Fees to Customs revenue.
Customs Union Seal and Flag.

PART III: Importation

Arrival and Report of Aircraft and Vessel
Arrival Overland
Entry, Examination and Delivery

PART IV

Internal Container Depot

PART V

Warehousing of Goods
Bonded Warehouses
Government Warehouses

PART VI

Exportation
Entry Outward and Loading of Aircraft and Vessels
Departure Overland
Goods in transit or for transshipment
Goods in transit
Transhipment

PART VII

Clearance and general declaration for aircraft
Departure and Clearance of Aircraft and Vessels

PART VIII

Importation and Exportation by Post

PART IX

Importation and Exportation by Registered Couriers

PART X

Carriage Coastwise and Transfer of Goods

PART XI

Duties
Goods imported for temporary use or purpose
Duty Drawback
Remission or refund
Rebate
Refund

PART XII

CUSTOMS AGENTS

PART XIII

Manufacturing under Bond

PART XIV

Export Processing Zones

PART XV

Free Ports

PART XVI

Inward and Outward Processing
Inward processing
Outward processing

PART XVII

Settlement of Cases by the Commissioner

PART XVIII

Miscellaneous Provisions

SCHEDULES

First Schedule Consists of various customs forms used in the process of clearing goods
Second Schedule is the East African Community Customs Union Flag that symbolizes the unity among the Partner States

The EAC Customs Management (Compliance and Enforcement) Regulations, 2012

The Council formulated the East African Community Customs Management (Compliance and Enforcement) Regulations (EACCMR), 2012 in accordance with Section 251 of the EACCMA, 2004 to address matters that concern Customs administration; Including:
- Cross-border cooperation;
- Post clearance audit;
- Authorized economic operators;
- Use and management of information.
The EACCMR, 2012 has six parts and forty-one regulations.

Other Laws and Regulations impacting Freight Logistics Industry

In addition to the EACCMA, 2004 and its accompanying regulations EACCMR, 2010, practitioners in the Freight Logistics industry must be aware of national Laws and Regulations regarding establishment, registration and operation of Clearing and forwarding firms include:
1. Provision of Company’s Ordinance/Act with regards to establishing of a company. This differs in each Partner State
2. Registration requirements from the registrar of companies.
3. Business Licensing requirements from the specific government organs.
4. Any other Laws or regulations necessary to be completed prior to starting a business.