Whether the Secretary General of the East African Community is liable for failing to exercise due diligence in carrying out his obligations under the Treaty for the Establishment of The East African Community
June 20, 2016
Whether the Secretary General of The East African Community is liable for failing to exercise due diligence in carrying out his obligations under the Treaty For The Establishment of The East African Community
East African Law Society v The Secretary General of The East African Community
In The East African Court of Justice at Arusha First Instance Division
Reference No.07 of 2014
M.K. Mugenyi, PJ; I.Lenaola, DPJ; F.Ntezilyayo, J; Fakihi A. Jundu, J & Audace Ngiye, J
March 22, 2016
Reported by Linda Awuor & Kevin Kakai
Beginning from around August 2013, Rwandan and Burundian immigrants from Ngara and Karangwe in the Kagera region of the United Republic of Tanzania were expelled from that region. On August 20, 2013, the Applicant issued a statement whereby it, among others, expressed concerns over reports of the expulsion of the said immigrants and thus called on the Respondent to take remedial actions ensuring that the expulsion was done in accordance with international and regional legal standards and principles.
By its letter of February 27, 2014, the Applicant inquired from the Respondent of the remedial steps taken over the expulsion. The Respondent, in his letter dated March 19, 2014, indicated that the said expulsion had been considered by the Council of Ministers in its meeting of August 31, 2013 and had given directives to address the problem. The Applicant, considering that, by failing to abide by, or to implementing Council’s directives in order to resolve the problem of the immigrants, the Respondent had abdicated his duties and obligations under Article 71(1) of the Treaty, filed the Reference.
(i) Whether the Reference was time barred under article 30(2) of the Treaty.
(ii) Whether the Respondent failed to discharge his obligations of under taking either on its own initiative or otherwise, of such investigations, collection of information, or verification of matters relating to any matter affecting the Community that appears to it to merit examination under article 71(d) and (l) of the Treaty.
(iii) Whether the Applicant is entitled to the remedies sought.
International law – East African Community – reference by natural persons – time limit for instituting a reference by a natural person – whether the applicant’s reference was time barred – Treaty For The Establishment of The East African Community, article 30 (2)
International law – East African Community – secretariat – functions of the secretariat – whether the respondent failed to discharge his obligations under article 71(d) and (l) of the Treaty – Treaty For The Establishment of The East African Community, article 71 (d) and (l)
Relevant Provisions of law:
Treaty For The Establishment of The East African Community (as amended on December 14th, 2006 and August 20th, 2007)
Article 29 – Reference by the Secretary General
- Where the Secretary General consider s that a Partner State has failed to fulfil an obligation under this Treaty or has infringed a provision of this Treaty, the Secretary Genera l shall submit his or her findings to the Partner State concerned for that Partner State to submit its observations on the findings.
- If the Partner State concerned does not submit its observations to the Secretary Genera l within four months, or if the observations submit ted are unsatisfactory, the Secretary Genera l shall refer the matter to the Council which shall decide whether the matter should be referred by the Secretary Genera l to the Court immediately or be resolved by the Council.
- Where a matter has been refer red to the Council under the provisions of paragraph 2 of this Article and the Council fails to resolve the matter , the Council shall direct the Secretary General to refer the matter to the Court.
Article 30 – Reference by Legal and Natural Persons
- Subject to the provisions of Article 27 of this Treaty, any per son who is resident in a Partner State may refer for determination by the Court, the legality of any Act, regulation, directive, decision or action of a Partner State or an institution of the Community on the grounds that such Act , regulation, directive, decision or action is unlawful or is an infringement of the provisions of this Treaty.
- The proceedings provided for in this Article shall be instituted within two months of the enactment, publication, directive, decision or action complained of, or in the absence thereof, of the day in which it came to the knowledge of the complainant, as the case may be;
- The Court shall have no jurisdiction under this Article where an Act, regulation, directive, decision or action has been reserved under this Treaty to an institution of a Partner State.
Article 71 – Functions of the Secretariat
1. The Secretariat shall be responsible for:(a)initiating, receiving and submitting recommendations to the Council, and forwarding of Bills to the Assembly through the Coordination Committee;
(b)the initiation of studies and research related to, and the implementation of, programmes for the most appropriate, expeditious and efficient ways of achieving the objectives of the Community;
(c)the strategic planning, management and monitoring of programmes for the development of the Community;
(d)the under taking either on its own initiative or otherwise, of such investigations, collection of information, or verification of matters relating to any matter affecting the Community that appears to it to merit examination;
(e)the co-ordination and harmonisation of the policies and strategies relating to the development of the Community through the Coordination Committee;
(f) the genera l promotion and dissemination of information on the Community to the stakeholder s, the genera l public and the international community;
(g)the submission of reports on the activities of the Community to the Council through the Co-ordination Committee;
(h)the genera l administration and financial management of the Community;
(i) the mobilisation of funds from development partner s and other sources for the implementation of projects of the Community;
(j) subject to the provisions of this Treaty, the submission of the budget of the Community to the Council for its consideration;
(k) proposing draft agenda for the meetings of the organs of the Community other than the Court and the Assembly;
(l) the implementation of the decisions of the Summit and the Council;
(m) the organisation and the keeping of records of meetings of the institutions of the Community other than those of the Court and the Assembly;
(n)the custody of the property of the Community;
(o)the establishment of practical working relations with the Court and the Assembly; and
(p)such other matters that may be provided for under this Treaty.
- Determination of whether the Reference was time barred required determining the cause of action. It was worth noting that, although the Applicant, in his statement dated August 20, 2013, had condemned the expulsion of citizens of Partner States from another Partner State without following the due process as running afoul of the fundamental principles enshrined in the Treaty and other relevant international instruments, it nevertheless did not file any action in that regard. Instead, it instituted an action against the Respondent, faulting him for non- compliance with the Council’s directives and failure to play the monitoring and oversight role as provided by Article 71(1) of the Treaty.
- The Applicant had the right to seek judicial redress or relief against the Respondent and the cause of action of the Reference, was the alleged failure of legal duty by the Respondent.
- If the Court had considered that the starting time was when the alleged infringement came to the knowledge of the Applicant, that was on March 19, 2014, and that the Reference was filed on April 28, 2014, it was evident that the Applicant was within the time frame prescribed by article 30(2) of the Treaty.
- One of the functions of the Secretariat, as provided for by article 71(1)(d), was the undertaking of such investigations, collection of information, or verification of matters relating to any matter affecting the Community that appears to it to merit examination. It was undeniable that a matter such as the alleged illegal expulsion of citizens of a Partner State by another Partner State of the Community was one that called for examination in order to have assessed the truth about it and take appropriate remedial measures.
- Faced with alleged violations of some of the objectives and fundamental principles encapsulated in the Treaty as it could have been the case with the alleged illegal expulsion of immigrants at issue, the Respondent ought to have been vigilant and should have taken effective and proactive measures in order to ensure a thorough investigation into the matter and come up with a comprehensive report with relevant recommendations on how to resolve the matter.
- It was also possible for the Respondent, informed by the findings of the investigative mission as regards instances of failure by a Partner State to fulfil its Treaty obligations or infringement of a provision of the Treaty, to take appropriate remedial actions in line with the Respondent’s responsibility under article 29 of the Treaty.
- The normal course of action would have been then to submit the findings and recommendations from the mission’s report to the Council of Ministers for consideration. This would have been in fulfilment of the Secretariat’s other function of initiating, receiving and submitting recommendations to the Council (article 71(1) (a).
- Although some actions had been undertaken in line with the Respondent’s responsibilities under article 71(1) of the Treaty, no effective action was initiated by the Respondent to effectively resolve the issue of the expulsion of immigrants from the Kagera Region of the United Republic of Tanzania. The Respondent could not shun his responsibilities by stating that he took ineffective measures such as initiating meetings which never took place or establishing a fact finding mission whose report was never submitted to the relevant organ of the Community for consideration.
- The Respondent should have, as a matter of utmost urgency, submitted the findings and recommendations of the fact finding mission to the Council of Ministers for consideration. The Respondent ought to have exercised due diligence in carrying out his Treaty obligations, by failing to do so, he had breached his statutory obligations under Article 71(1) (d) & (1) of the Treaty.
Application allowed, the Respondent to submit to the next meeting of the Council of Ministers for consideration, the findings and recommendations of the fact finding mission that had been established and had visited areas of the Kagera Region of the United Republic of Tanzania, affected by the alleged irregular expulsion of immigrants with each party to bear its own costs.