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Advertisement For The Recruitment Of The Registrar Of The East African Court Of Justice Held To Be In Conformity With The Treaty.

Advertisement For The Recruitment Of The Registrar Of The East African Court Of Justice Held To Be In Conformity With The Treaty.

Rwenga Etienne & Moses R. Marumbo v Secretary General, East African Community

M.K.Mugenyi, PJ; I. Lenaola, DPJ; F.Ntezilyayo J, FA. Jundu J &A. Ngiye J

March 23, 2016

Reported by Linda Awuor & Faith Wanjiku

Brief Facts

On August 3, 2015 the Respondent published an advertisement for the recruitment of the Registrar of the East African Court of Justice (EACJ), Ref. EAC/HR/2014-2015/033, on the website of the East African Community (EAC). The advertisement expressly restricted eligibility for application to citizens of the Republics of Burundi, Kenya and Uganda owing to a quota points system applied in the EAC recruitment process as they had attained the 12 quota points required for eligibility. The advertisement did also enumerate requirements for academic qualifications and professional experience that were purportedly over and above the requirements stipulated in article 45(1) of the Treaty for the Establishment of the East African Community (the Treaty).

According to the Applicants, who were residents of Rwanda and Tanzania, whereas the position of Registrar carried 12 points in the quota system, the quota points held by each Partner State as at 4th December 2015 was as follows:- Kenya (4.8); Uganda (4.8); Burundi (11.8); Rwanda (-1.20), and Tanzania (2.8); but the Respondent did not advise the Council meeting of August 14, 2015 that none of the   Partner States possessed the requisite 12 quota points. Aggrieved with alleged irregularities in the recruitment process, the Applicants filed the Reference.

The Applicants sought declarations that the present recruitment process was a violation of the Treaty; the said recruitment process was null and void, and the elimination of Rwanda and Tanzania was a violation of the spirit of integration under the Treaty, as well as the quota system that guided recruitment in the Community. They did also seek the following orders against the Respondent: the halting of the recruitment process until all the alleged irregularities ensuing therefrom had been addressed; compliance with article 45(1) of the Treaty in the recruitment of a Registrar; implementation of the Operational Manual in accordance with article 6(d) of the Treaty, and inclusion of candidates of all Partner States in the recruitment exercise, with application of quota points at the time of appointment of the successful candidate. Quite clearly, given the Court’s findings on the substantive issues, neither the declarations nor orders sought against the Respondent were tenable. They were   accordingly disallowed.

Issues

i. Whether the Respondent’s advertisement for the position of the Registrar of the EACJ published on August 3, 2015 referenced EAC/HR/2014-2015/033 was contrary to functions of the Council and provisions on recruitment of the Registrar under the Treaty.

ii. Whether the decision of the Council taken under functions of the Council and provisions on recruitment of the Registrar was subject to consensus under the Protocol on Decision Making by the Council of the East African Community (Protocol on Decision Making).

iii. Whether the recruitment process for the Registrar of EACJ wrongly eliminated potential candidates from Tanzania and Rwanda contrary to fundamental principles of the Treaty.

iv. Whether in the absence of anyone member qualifying to attain the requisite quota, it was discriminatory to exclude Tanzania and Rwanda to contest contrary to fundamental principles of the Treaty.

International Law law of Treaty- Interpretation of the Treaty for the Establishment of the East African Community-Functions of the Council-whether the Respondent’s advertisement for the position of the Registrar of the EACJ published on August 3, 2015 referenced EAC/HR/2014-2015/033 was contrary to article 14 of the Treaty- Treaty for the Establishment of the East African Community (As amended on 14th December, 2006 and 20th August, 2007)-article 14(1), (3)

International Law law of Treaty- Interpretation of the Treaty for the Establishment of the East African Community-Registrar of the Court and Other Staff- whether the Respondent’s advertisement for the position of the Registrar of the EACJ published on August 3, 2015 referenced EAC/HR/2014-2015/033 was contrary to article 45 (1), (3)- Treaty for the Establishment of the East African Community (As amended on 14th December, 2006 and 20th August, 2007)-article 45(1), (3)

International Law –law of Treaty- Interpretation of the Treaty for the Establishment of the East African Community-Fundamental Principles of the Community- whether the recruitment process for the Registrar of EACJ wrongly eliminated and discriminated potential candidates from Tanzania and Rwanda on there being no qualified member contrary to article 6(d) of the Treaty- Treaty for the Establishment of the East African Community (As amended on 14th December, 2006 and 20th August, 2007)-article 6(d)

International Law –East African Community-Protocol on Decision Making by the Council of the East African Community-Decisions- whether the decision of the Council taken under articles 14(3) and 45(3) was subject to article 2 of the Protocol on Decision Making-Protocol on Decision Making by the Council of the East African Community 2001- article 2

Relevant Provisions of the Law

Treaty for the Establishment of the East African Community (As amended on 14th December, 2006 and 20th August, 2007)

Article 6 (d)-Fundamental Principles of the Community

The fundamental principles that shall govern the achievement of the objectives of the Community by the Partner States shall include:

(d) good governance including adherence to the principles of ….transparency, … equal opportunities…

Article 14(1) – Functions of the Council

The Council shall be the policy organ of the Community.

Article 14(3) – Functions of the Council

For purposes of paragraph 1 of this Article, the Council shall:

(a) Make policy decisions for the efficient and harmonious functioning and development of the Community.

Article 45(1) – Registrar of the Court and Other Staff

The Council shall appoint a Registrar of the Court from among citizens of the Partner States qualified to hold such high judicial office in their respective Partner States.

Article 45(3) – Registrar of the Court and Other Staff

The salary and other conditions of service of the Registrar and other staff of the Court shall be determined by the Council.

Protocol on Decision Making by the Council of the East African Community, 2001

Article 2 (1) (g) – Decisions

The decision of the Council on the following matters shall be by consensus:

Decisions on what should be recommended to the Summit on:

Policy decisions made pursuant toarticle 14 (3) (a) of the treaty

Article 2 (1) (h) (i) – Decisions

The decision of the Council on the following matters shall be by consensus:

Decisions on what should be recommended to the Summit on:

amendment of the treaty

Held

  1. Article 45(3) of the Treaty was inapplicable to the recruitment process that was under scrutiny. That legal provision pertained specifically to salary and other conditions of service. In the interpretation section of the Treaty the terms salary and terms and conditions of service were defined to include wages, overtime pay, salary and wage structures, leave, passages, transport for leave purposes, pensions and other       retirement benefits, redundancy and severance payments, hours of duty, grading of posts, medical arrangements, housing, arrangements for transport and travelling on duty, and allowances.
  2. The Court appreciated that the employment parameters were typically     pre-determined prior       to the commencement of a recruitment process,   as       would the qualifications for any vacant position; it seemed that the items listed in that interpretation clause entailed emoluments, benefits and rules of       engagement that would       accrue to a       holder of a staff position post-recruitment; one that had met the minimum requirements for a staff position and was either duly employed as such or had been given an offer of employment. The term terms and conditions of service could not be stretched to include criteria against which a candidate would be evaluated in the course of the recruitment process. With respect, the Court was unable to appreciate how criteria or requirements that would pre-qualify a candidate for admission to the recruitment process could be equated to terms and conditions of service that pertained to the post-recruitment, post­ appointment phase. The former were pertinent to the recruitment process, while the latter would accrue   to the employment phase. Any purported prescription of the qualifications for the post of Registrar under article 45(3) of the Treaty was erroneous and misconceived.
  3. Whereas article 45(3) limited the mandate of the Council to the formulation of staff terms and conditions of service as defined above, article 14(3) did mandate it to take policy decisions that would engender the efficient and harmonious functioning and development of the Community. The question would be whether or not the setting of qualifications for the position of Registrar and the requirements   set       out   in article 45(1) notwithstanding, legally fell within the ambit of article 14(3)(a) of the Treaty,   and       if so, whether       the criteria the       Council set thereunder contravened article 45(1) of the Treaty.
  4. It was       a well recognized rule       of procedure that       s/he who asserted had to prove their case. Courts required the party that raised a claim or advanced a particular contention to       establish the elements of fact       and of law on which the decision in its favour would be given. Ultimately, it was the litigant that sought to establish a fact who bore the burden of proving it. The evidential burden upon a party that sought to rely on a specific fact did not negate the overall burden of proof upon a claimant to prove his/ her case against the Respondent.
  5. The evidential burden on the issue of compliance rested with the Party pleading so. The Respondent did adduce evidence that the qualifications for the position of Registrar were determined by the Council acting within its mandate under article 14 of the Treaty, and were set at 15 years’ experience in view of the demanding nature of the position at regional level. Quiteclearly, the rationale behind the 15-year experience   requirement was to underpin the efficiency of the office of the Registrar. The veracity of the evidence was not rebutted by the Applicants; rather their affidavit evidence simply questioned adherence of those requirements with the provisions of article 45(1) of the Treaty.
  6. It seemed quite logical that there would be need to standardize the qualifications for the position of Registrar within the EAC in order to underscore the efficacy of the Court, an organ with a pivotal function in the development of the Community. Policy decisions taken to entrench efficiency and efficacy in the office of the Registrar of the EACJ, as illustrated above, would squarely fall within the mandate of the Council under article 14(3)(a) of the Treaty.
  7. The Court failed to agree that such standardization amounted to a breach of article 45(1) or indeed of the Treaty. Article 45(1) did place an obligation upon the Council to consider for appointment to the position of Registrar a citizen of any of the Partner states that qualified to hold such high judicial office therein. The requirements of article 45(1) set the minimum pre-qualification criteria for a candidate to be admitted to the recruitment process, while the standardized qualifications adopted by the Council prescribed such standards as would engender the development of the Court and, by extension, the Community. That was the prerogative of the Council under article 14(1) and (3) of the Treaty.
  8. Given that the standardized qualifications had not been proven to have fallen below the qualifications applicable to such high judicial office in any of the partner states, it could not be suggested that the provisions of article 45(1) had been breached. Rather, the requirements prescribed by article 45(1) had been duly embedded within the standardized criteria set by the Council       pursuant to article       14(1) and (3)(a)       of the Treaty. There was no evidence in the Reference that a candidate that would have met the criteria set by the Council and was duly recommended for appointment under article 45(1) of the Treaty, would not meet       the minimum qualifications stipulated in       that article.
  9. There were no contradictions in either the interpretation or application of the Treaty by the Council’s decision to prescribe specific qualifications for the position of Registrar. The advertisement for the position of Registrar that was published on August 3, 2015 did not contravene either article 14 or article 45(1) of the Treaty. Article 45(3) was not applicable to the said recruitment exercise.
  10. The Council’s decision, having been a policy decision taken pursuant to article 14(3) (a), did fall within the ambit of article 2(1) (g) of the Protocol on Decision Making. The Court was not addressed on any other Treaty provision that might have been amended by the said decision. In any event, it was abundantly clear from a reading of article 2(1) that even a decision under article 2(1) (h) (i) would have been taken by consensus and not simple majority as argued. The Council’s decision under article 14(3) of the Treaty on decision making by the Council was subject to article 2(1) (g) of the Protocol on Decision Making on policy decisions being made on consensus.
  11. More importantly was the question as to whether there was, in fact, a legal requirement for decisions of the Council to be published in the Gazette at all. As could be gleaned from the wording of article 14(5), what the Treaty required to be published in the Gazette were regulations and directives of the Council. The provision provided that they would be published in the Gazette and would come into force       on the date       of   publication unless otherwise provided. There was no provision in the Treaty that imposed upon the Council the duty to publish its decisions in the Gazette, or translate any or       all of them into       regulations for purposes       of publication therein.   Therefore, strictly       speaking, there was no Treaty obligation upon       the Council to publish       its decision with regard to the Registrar’s qualifications in the Gazette.
  12. The Operational Manual that regulated the operation of the quota system in the Community appeared to have been formulated to give effect to the provisions of article 6(e) of the Treaty, which enumerated the equal distribution of benefits as a fundamental principle of the Community. Indeed, clause 2.0 of the Operational Manual explicitly expounded its legal basis as being grounded in article 6(e) of the Treaty. Article       31(3)(a) of the       Vienna Convention on       the Law of Treaties did take due   cognizance of any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions. The Operational Manual was enacted on the recommendation of the Council to operationalize the quota system now applicable in the EAC. It did, therefore, represent an agreement of the Partner States with regard to recruitment in the Community. It was, therefore, absolutely pertinent to the application of the Treaty as provided in article 23 thereof.
  13. The first component of clause 4.6 was couched in terms that made it abundantly clear that a citizen of a partner state could only be considered eligible to submit to the recruitment process if such partner state possessed the requisite quota       points for that position. It appeared, therefore, that the possession of the requisite quota points       by a partner       state was a       pre-qualification requirement that had to be met before EAC citizens could be eligible to       apply for a       staff position. In       the same vein,       the second component of the same provision enjoined the Secretariat to inform each partner state of the points available to them at the onset of any recruitment.   It seemed that the practice was intended to foster the transparency and integrity of the points system, and gave an opportunity to partner states to put the record straight right from the onset, if the circumstances so warranted.
  14. Interpretation of clauses 3.5 and 4.6 of the Operational Manual read together was that the issue of quota points did accrue at the commencement of the recruitment exercise and not at the point of selection of the winning candidate, as suggested by the Applicants. It did follow, then, that the Respondent rightly computed the quota points available to each Partner State at the beginning of the recruitment process so as to determine which, if any, of them was eligible to present candidates for the position of Registrar.
  15. Clause 3.5 pertained to the computation of quota points applicable to each staff position, rather than the computation of points held by each partner state. It simply included a note that when one used an excel worksheet, the computer corrected to the nearest point, which was what appeared to have informed the Respondent’s       decision to round       off the Partner       States’ quota points to the nearest whole number.
  16. Clause 7.1 of the Operational Manual       vested   the   implementation   and interpretation of the Manual with the Respondent.   That mandate had to be exercised with demonstrable transparency, objectivity and professionalism. With that yardstick in mind, the Respondent’s implementation of       the quota system in the matter could not be faulted. It seemed quite logical, rational and objective that if the quota points applicable to staff positions could       be rounded off to       the nearest whole number, similarly, the points available to partner states would be computed on like basis.
  17. There was no discriminatory   practice   in       the Respondent’s computation of the quota points available to the partner states, neither could lack of transparency be attributed to a party that duly       circulated the quota       points available to       each partner state as required by clause 4.6. The said computation could not be equated to unequal distribution of opportunities within the EAC. Indeed, the Respondent’s additional affidavit evidence did explicitly expound the rationale behind the quota system as a measure to enable citizens from all the partner states to       enjoy   equal   opportunities   to       employment   in the Community.           The Republics of Burundi, Kenya and Uganda did possess the requisite quota points to have their citizens compete for the position of Registrar in the EACJ, and the elimination of potential candidates from the Republic of Rwanda and United       Republic of Tanzania       was neither discriminatory nor a violation of article 6(d) of the Treaty.
  18. Rule 111(1) of the East African Court of Justice Rules of Procedure 2013 provided that costs should follow the event unless the Court, for good reason, decided otherwise. Whereas the first Applicant represented himself as a person that       was   personally aggrieved   by       the recruitment process, the second Applicant appeared to have been a person that was purely interested in the proper implementation of the Treaty. The Reference had, indeed, procured the clarification of significant aspects of the Community’s recruitment process. To that extent, it seemed to have been litigation that was instituted in the public interest. That was deemed to be sufficient reason to depart from the general rule on costs.

 

Reference dismissed, each Party to bear its own costs.

 

 

 

 

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