EACJ Appellate Division delivers a Ruling on an Advisory Opinion requested by the EAC Council of Ministers
The East African Court of Justice Appellate Division on 20th November 2015 gave an advisory opinion filed on 15th April 2015 by the Secretary-General of the EAC on behalf of the Council of Ministers of the EAC. The request was filed pursuant to Article 14(4) and 36 of the Treaty and Rule 75 of the EACJ Rules of Procedure.
The request sought an opinion as to whether or not the words “forfeit” and “withdraw”, appearing respectively in Article 67(2) of the EAC Treaty and Rule 96(3) of the EAC Staff Rules and Regulation 2006, in effect amount to the same thing.
The gist of the matter that led to the rise of the inquiry is that Rwanda as a Partner State of the Community, nominated its national (Mr Alloys Mutabingwa) for appointment as EAC Deputy Secretary-General by the Summit of EAC Heads of State. Mr Mutabingwa was duly appointed in that position on 29th July 2009 for a term of three (3) years; however, on 29th April 2011 before the expiry of his term, Rwanda nominated Amb. Dr Richard Sezibera (another Rwandan national) for the appointment by the Summit as Secretary-General of the Community for a term of five (5) years. By virtue of Article 67(2) of the Treaty, “upon appointment of the Secretary-General, the Partner State from which he or she is appointed shall forfeit the post of Deputy Secretary-General”.
Also said that with that forfeiture Mr Mutabingwa’s contract was brought to an end, exactly 12 months before due date of its expiry. Upon that premature end of Mr Mtabingwa’s contract of employment, the Community, as the employer, compensated him in an amount equivalent to his full remuneration package for the 12 months balance of his contract.
In doing so the Community based itself on the authority of Rule 96(3) of the Staff Rules which provide, “where a Partner State withdraws one of its Executive staff before the expiry of contract, the individual shall be compensated the full remuneration package he or she would have received if he / she had served the entire period of the running contract. The funds paid by the Community shall be reimbursed by the concerned Partner State”.
Further, it was stated that the State practice of the Community regarding similar withdrawals in the past notably in 2001 and 2006, when Uganda and Tanzania respectively reimbursed the Community upon withdrawal of their respective Deputy Secretaries-General. Consequently, upon its payment of the above full compensation to Mr Mutabingwa, the Community Secretariat requested Rwanda to reimburse to the Community the amount of that compensation.
Rwanda declined to make the requested reimbursement, on the basis that the matter did not fall within the ambit of Rule 96(3) and additionally, contended that there is no clear established state practice in this regard. Confronted with the impasse, the Council of Ministers took a decision at its 29th extra ordinary meeting of 23rd-28th August 2014 to seek the Court’s Advisory Opinion on the matter.
Specifically, the Council sought an opinion on whether “forfeiture” of the position of Deputy Secretary-General under Article 67(2) of the Treaty for purpose of making way for an incoming Secretary-General from the same Partner State is in effect “withdrawal” of such Deputy Secretary-General.
The Court in its ruling said that, forfeiture of the position of the Deputy Secretary-General pursuant to Article 67(2) of the Treaty is a function and consequence imposed by automatic operation of law - without the free will or choice of the Partner State concerned. Withdrawal of Deputy Secretaries-General from their position by a Partner State of which the DSG is a national, for purposes of making way for an incoming Secretary-General of the same Partner State, though contemplated under Rule 96(3) of the Staff Rules and Regulations, 2006 of the Community, would in its application be a function and result of the free will and choice of the Partner State involved. To that extent, that function offends and is clearly inconsistent with and contrary to the objectives and purpose of the Treaty, in particular concerning the principle of rotation in Article 67(1) and (2) of the Treaty.
The Court further ruled that, given the inconsistency between the Treaty and the Staff Rules, which are made pursuant to the provisions of Articles 14(3) (g) and 70 of the same Treaty, the Staff Rules must to the extent of the inconsistency yield to the primacy of the provision of the Treaty.
It further ruled that, the “practise” whereby two Partner States have in the past refunded to the Secretariat of the Community the compensation paid to two former Deputy Secretaries-General of their nationality for premature termination of their tenure (in order to give way to the incoming Secretaries-General of the same nationality), has not as yet developed to trigger objective recognition under international law as an “established state practice”.
It is at best only a developing practice. At worst, any emerging “practise” from the past two precedents of Uganda and Tanzania has been fatally wounded and may well be on its way to becoming inchoate (unclear) if not comatose (exhausted).
Again, the Court added that of the three precedents signifying the alleged “practise”, the first Uganda’s was effected prior to the 2006 Staff Rules and therefore lacked any legal basis at all, the third Rwanda’s has been plainly challenged and openly disputed by the Partner State concerned.
That leaves Tanzania as the lone practise. Therefore, no legitimate basis to hold this as a valid practise of the Partner States of the EAC. Accordingly, it is quite evident that this so called practise cannot be taken into account for purposes of interpreting or applying Article 67(2) of the EAC Treaty and Rule 96(3) of the EAC Staff Rules and Regulations.
The Court also said that to avoid the latent friction between Article 67(2) of the Treaty and Rule 96(3) of the Staff Rules and Regulations, the two need formal, adequate and appropriate harmonisation by the competent organs and authorities of the Community.