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The minimum threshold for holding of a council meeting by the Council of Ministers of the EAC for there to be quorum

 East African Law Society v the Secretary General of the East African Community Application No. 1 of 2020

The East African Court of Justice

Yohane M, PJ & J; Audace N, DPJ & J; Nyawello C, Nyachae C & Richard W, JJ

March 25, 2022

Reported by Faith Wanjiku and Bonface Nyamweya

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International Law – regional integration – East African Community – organs of the East African Community – the Council- Council meeting-quorum- when was the meeting attendance legally constituted- where there were a few attorneys general and several representatives of attorneys general from partner states- what was the minimum threshold for holding of a Council meeting- whether the 39th meeting of the Council lacked quorum because of the absence of some attorneys general of the partner states- whether the alleged lack of quorum breached article 13 of the Treaty on membership of the Council- Treaty Establishing the East African Community, 1999, article 13.

International Law – regional integration – East African Community – organs of the East African Community – the Council- Council meeting- quorum- when was the meeting attendance legally constituted- where there were a few attorneys general and several representatives of attorneys general from partner states-resolutions, directives and orders in a Council meeting- whether the resolutions, directives and orders flowing from the 39th Ordinary Meeting of the Council were valid- Treaty Establishing the East African Community, 1999, articles 13 and 9 (2); East African Court of Justice Rules of Procedure, 2019, rules 2 and 11.

International Law – regional integration – East African Community – organs of the East African Community – the Council- Council meeting-powers of the Council-whether the Council of Ministers had indefinitely extended the tenure of the Ad hoc EAC Service Commission by not mentioning the time frame thereby breaching the Treaty- Treaty Establishing the East African Community, 1999, articles 14 and 9 (2).

International Law – regional integration – East African Community – institutions of the East African Community – Ad hoc EAC Service Commission-procedure to be empowered as an institution under the Treaty and Rules of Procedure- whether the Ad hoc EAC Service Commission had been empowered as an institution without following the provisions of article 9 (2) of the Treaty- Treaty Establishing the East African Community, 1999, articles 13 and 9 (2); The East African Court of Justice Rules of Procedure, 2019, rules 2 and 11.

International Law – regional integration – East African Community – institutions of the East African Community – quorum- when was the meeting attendance legally constituted- where there were a few attorneys general and several representatives of attorneys general from partner states- whether the 39th meeting of the Council lacked quorum because of the absence of some attorneys general of the partner states- what was the minimum threshold for holding of a Council meeting- whether the parties were entitled to the remedies sought because of the claimed lack of the Council quorum- Treaty Establishing the East African Community, 1999 (the Treaty), articles 13 and 9 (2); The East African Court of Justice Rules of Procedure, 2019, rules 2 and 11.

Brief facts

On or about November 28, 2019, the East African Council of Ministers (the Council) conducted its 39th Ordinary Meeting in Arusha, Tanzania, without the participation of the attorney generals of the partner states, who were mandatory members of the Council as per article 13 of the Treaty. The meeting purported to make and in fact reached several binding resolutions. One of the resolutions was creating an institution of the community; namely, the Ad hoc EAC Service Commission to take on permanent duties of recruiting staff for the community.

The applicant prayed for the following orders:

  1. A declaration that the conduct of the 39th Ordinary Meeting of the Council on or about the November 28, 2019 was unlawful and in violation of article 13 of the Treaty for lacking quorum due to absence of the attorneys general who were permanent/mandatory members of the Council;
  2. A declaration that the resolutions, directives and orders flowing from the unlawful gathering of the 39th Ordinary meeting of the Council on or about the November 28, 2019 lacked force of the law and were void;
  3. A declaration that the Ad hoc EAC Service Commission was not an institution under article 9 of the Treaty and lacked mandate to proceed as mandated by the 39th Ordinary meeting of the Council;
  4. A declaration that any act performed by or decision taken by the Ad hoc Service Commission in pursuit of the Council resolution from the 39th Ordinary meeting of the Council was void;
  5. A declaration that the respondent and the Counsel to the Community acted in breach of the Treaty by failing to properly advise the Council on lack of quorum and subsequent invalidity of a meeting where attorneys general were not present;
  6. Any other order that the EACJ considered expedient in the circumstance; and
  7. Costs to be borne by the respondent.

Issues

i.        Whether the 39th meeting of the Council lacked quorum because of the absence of some attorneys general of the partner states thus breaching article 13 of the Treaty.

ii.        Whether the resolutions, directives and orders flowing from the 39th Ordinary Meeting of the Council were valid despite the alleged lack of quorum.

iii.        Whether the Council of Ministers had indefinitely extended the tenure of the Ad hoc EAC Service Commission thereby breaching the Treaty.

iv.        Whether the Ad hoc EAC Service Commission had been empowered as an institution by the Council without following the provisions of article 9 (2) of the Treaty.

v.        Whether the parties were entitled to the remedies sought pursuant to the claim that the 39th meeting of the Council lacked quorum because of the absence of some attorneys general of the partner states thus breaching article 13 of the Treaty.

Relevant provisions of the law

Treaty Establishing the East African Community, 1999

Article 9- Establishment of the Organs and Institutions of the Community

(2) The institutions of the Community shall be such bodies, departments and services as may be established by the Summit.

Article 13- Membership of the Council

The Council shall consist of the Ministers responsible for regional cooperation of each Partner State and such other Ministers of the Partner States as each Partner State may determine.

Article 14- Functions of the Council

1. The Council shall be the policy organ of the Community.

2. The Council shall promote, monitor and keep under constant review the implementation of the programmes of the Community and ensure the proper functioning and development of the Community in accordance with this Treaty.

Article 15- Meetings of the Council

2. The Council shall determine its own procedure including that for convening its meetings, for the conduct of business thereat and at other times, and for the rotation of the office of Chairperson among its members who are Ministers responsible for regional co-operation in the Partner States.

The East African Court of Justice Rules of Procedure, 2019

Rule 2

Partner State Representative(s)/representation means the Minister or Ministers designated by a Partner State as its representative in the meetings of the Council.

Rule 11

The quorum of a session of the Council shall be all Partner States representation.

Held

  1. The East African Court of Justice was not persuaded to agree with the applicant that there was no quorum of the 39th Ordinary Meeting of the Council. The reason for that was that the only reason submitted to prove the absence of the attorneys general in that meeting was an extract of the Report of the Council of Ministers in which there were names of ministers who signed the report on behalf of their respective partner states. The extract annexed in the statement of reference did not include a list of all the participants of the 39th meeting of the Council. The court expected the applicant to avail the full report, including a list of the attendees to that meeting. It was therefore difficult to agree with the applicant that since none of the six signatories of the report was an attorney general therefore there was no attorney general in attendance in the meeting.
  2. The list of participants could not have included all participants. There were 96 names of persons who participated in that meeting. Of particular interest to that issue of quorum was the participation of the Deputy Solicitor General, Commissioner (Principal Legislation) and Senior State Attorney (all from the office of the attorney general, Republic of Uganda) and Director Coordination and Advisory Services (attorney general’s office) and Senior State Attorney (Ministry of Justice) from the United Republic of Tanzania. The delegation of Burundi also comprised of the Minister of Justice/attorney general.
  3. The participation of one attorney general and several representatives of attorneys general from some party states in the 39th meeting of the Council defeated the argument of the applicant that there was no quorum. Attendance of all or some of the attorneys general was not a prerequisite for holding of a council meeting. Article 15 of the Treaty allowed the Council to regulate its own procedures, including that of conducting its meetings. The Rules of Procedure of the Council especially rules 2 and 11, provided the minimum threshold for holding of council meeting.
  4. Once a meeting of the Council was attended by a minister from each party state, the meeting was legally constituted. Therefore, the 39th meeting of the Council did not lack quorum and did not breach article 13 of the Treaty that provided for the membership of the Council because of the absence of some attorneys general of the party states. However, the omission to include the attorneys general in the Rules of Procedure of the Council, much as it could not have an effect in the legality of the Council meetings and its consequential resolutions, it could have adverse effects in meetings of the Sectoral Council on Legal and Judicial Affairs where the Rules of Procedure for the Council applied. All the business in the 39th Ordinary meeting of the Council was lawful because there was quorum. Also, there was no evidence to suggest that any illegality occurred during the transactions to vitiate the meeting’s outcomes. Thus, the resolutions, directives and orders flowing from the 39th Ordinary meeting of the Council were valid.
  5. The applicant erred in submitting that the Council transacted business under rules that were inconsistent with the Treaty and the Council in that meeting therefore acted in ultra vires to empower an institution called Ad hoc Service Commission. The submission deviated from the applicant’s pleadings and the written submissions thereof. In the affidavit in support of the reference attested by Hanningtone Amol, the applicant did not raise the issue of legality of the establishment of the Ad hoc Service Commission. It was expected that a party during the submission highlights, would not deviate from the pleadings and the written submissions already in the court records. Such deviation was meant to either mislead the court or a sign that what was pleaded was in fact untrue. Parties were bound by their pleadings.
  6. The contested Ad hoc Service Commission was established by the 30th Ordinary Meeting of the Council held in November, 2014. It continued operating and discharging its functions as assigned by the Council up to the time of the 39th meeting of the Council, in November, 2019. It had extended for about 5 years when the reference was filed. Unlike what was contended by the applicant, the court was not referred on the specific time frame within which it was to exist. The concept note prepared for the constitution of the Ad hoc Service Commission was not made available. The court therefore could not with precision determine the duration that it was to exist and whether that period was indefinitely extended as alleged.
  7. The decision to establish the Ad hoc Service Commission was made pursuant to the powers vested to the Council. The court was not told whether the duties assigned to the said Ad hoc Service Commission were duties vested to any institution other than the Council. The court was aware of the recruitment of officers and staff of the EAC Secretariat was the duty of the Council pursuant to article 70 of the Treaty. The court was not informed whether the assignment of the staff recruitment duties in 2014 and subsequent years to the said Ad hoc Commission was against the existing Staff Rules and Regulations. The court could not under any stretch of imagination assume the illegality that was not supported by evidence.
  8. The imputation of an institution of the Community on the Ad hoc Service Commission was unsubstantiated. Pursuant to article 2 and 9 (2) of the Treaty, an institution of the Community had to be a body, department or service established by the Summit. The court had had occasions to discuss what an institution of the Community entailed. An institution of the Community could not be assumed. There had to be tangible evidence to the satisfaction of the court that the said institution was in fact an institution of the Community established by the Summit pursuant to its powers under article 9 (2) of the Treaty.
  9. Where the allegation was that a body had been empowered as an institution of the Community, the applicant had to provide evidence that the duties assigned to such an institution were in fact duties that ought to be performed by an already established institution of the Community. There was no basis for the applicant to impute that title to the Ad hoc Service Commission mandated by the Council to discharge duties that the Council had power to perform. In the absence of clear timelines given to the said Ad hoc Service Commission, the court was unable to hold that the extension given to it (if any) was inordinate or indefinite. Therefore, the court could not hold that the Council breached any provision of the Treaty thereof.
  10. Granting costs against the applicant would not be in the interest of justice. The case was a public interest litigation brought to court by a body which was an important stakeholder to the court and the community at large. The applicant had an observer status pursuant to article 3 of the Treaty.

The application was found unmerited. It was dismissed in its entirety with each party to bear its costs.

Order

The court advised that the Rules of Procedure of the Council be amended to incorporate the amendments made in article 13 of the Treaty on membership of the council. That would solve the omission to include the attorneys general in the Rules of Procedure of the Council.

Relevance to Kenya’s legal system

Kenya is a partner state of the East African Community Council because it signed this Treaty on November 30, 1999 in Arusha. The preamble of the Treaty Establishing the East African Community, 1999, notes that:

…on the 30th day of November, 1993, provision was made by the Agreement for the Establishment of a Permanent Tripartite Commission for Co-operation Between the Republic of Kenya, the Republic of Uganda and the United Republic of Tanzania for the establishment of the Permanent Tripartite Commission for Co-operation hereinafter referred to as the Tripartite Commission to be responsible for the co-ordination of economic, social, cultural, security and political issues among the said countries and a Declaration was also made by the Heads of State of the said countries for closer East African Co-operation;

AND WHEREAS on the 26th day of November, 1994, provision was made by the Protocol on the Establishment of a Secretariat of the Permanent Tripartite Commission for Co-operation Between the Republic of Kenya, the Republic of Uganda and the United Republic of Tanzania, for the establishment of the Secretariat of the Permanent Tripartite Commission for Co-operation Between the Republic of Kenya, the Republic of Uganda and the United Republic of Tanzania to act as the Secretariat of the Tripartite Commission, hereinafter referred to as the Secretariat of the Tripartite Commission;

AND WHEREAS on the 29th day of April 1997 at Arusha in Tanzania, the Heads of State of the said countries after reviewing the progress made by the Tripartite Commission, in the development of closer co-operation between the said countries in the fiscal, monetary, immigration, infrastructure and service fields and after approving the East African Cooperation Development Strategy for the period 1997 – 2000, directed the Tripartite Commission to embark on negotiations for the upgrading of the Agreement establishing the Tripartite Commission into a Treaty.

Article 3 of the Treaty Establishing the East AfricanCommunity, 1999, adds that:

The members of the Community, in this Treaty referred to as the Partner States, shall be the Republic of Kenya, the Republic of Uganda and the United Republic of Tanzania and any other country granted membership to the Community under this Article.

This means that Kenya is a partner state of the East African Community Council and thus is affected by its legislation and case law of the EACJ. This case is therefore important to the Kenyan jurisprudence because it clarifies on the minimum threshold for quorum for the Council meetings.

 

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