Wakilii

Etienne and Anor v Secretary General of the East African Community (Reference 5 of 2015)

East African Court of Justice · [2016] EACJ 37 · 2016 Reference Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Reference challenging recruitment process for Registrar of the East African Court of Justice
Decision
Reference dismissed with each party bearing own costs

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court held that the Council of Ministers acted within its mandate under Article 14(3)(a) of the Treaty in setting standardised qualifications for the position of Registrar beyond the minimum requirements in Article 45(1), as this was a policy decision to ensure efficiency and harmonious functioning of the Community. The Court further held that Article 45(3) pertains to post-recruitment terms and conditions of service, not pre-recruitment qualifications. The application of the quota system, which eliminated candidates from Rwanda and Tanzania, was lawful as those Partner States lacked the requisite quota points at the commencement of the recruitment process. The Reference was dismissed.

Outcome

Reference dismissed with each party bearing own costs

Facts

The Secretary General of the East African Community published an advertisement on 3 August 2015 for the recruitment of the Registrar of the East African Court of Justice. The advertisement restricted eligibility to citizens of Burundi, Kenya and Uganda based on a quota points system, and specified qualifications including 15 years' experience and an LLM degree. The Applicants, citizens of Rwanda and Tanzania respectively, challenged the recruitment process, alleging that the additional qualifications contravened Article 45(1) of the Treaty, which requires only that the Registrar be qualified to hold such high judicial office in their respective Partner States. They further contended that the quota system was wrongly applied to pre-disqualify candidates from Rwanda and Tanzania, as none of the Partner States possessed the 12 quota points required for the position. The Applicants did not appear in Court throughout the hearing.

Issues

  1. Whether the Respondent's advertisement for the position of the Registrar of the EACJ published on 3rd August 2015 referenced EAC/HR/2014-2015/033 was contrary to Articles 14, 45(1) and 45(3) of the Treaty.
  2. Whether the decision of the Council taken under Articles 14(3) and 45(3) are subject to Article 2 of the Protocol on Decision Making by the Council of the East African Community.
  3. Whether the recruitment process for the Registrar of EACJ wrongly eliminated potential candidates from Tanzania and Rwanda contrary to Article 6(d) of the Treaty.
  4. 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 Article 6(d) of the Treaty.
  5. Whether the Applicants are entitled to the prayers sought.

Orders

  • Reference dismissed.
  • Each party to bear its own costs.

Rules and key headnotes

Administrative Law — Treaty Interpretation — Policy Decisions by Council of Ministers — Scope of Article 14(3)(a) of EAC Treaty
The Council of Ministers is mandated under Article 14(3)(a) of the Treaty for the Establishment of the East African Community to make policy decisions for the efficient and harmonious functioning and development of the Community, including the standardisation of qualifications for the position of Registrar of the East African Court of Justice where disparities exist among Partner States as to the qualifications required for such high judicial office.
Statutory Interpretation — Treaty Provisions — Article 45(3) of EAC Treaty — Meaning of 'Terms and Conditions of Service'
The term 'terms and conditions of service' in Article 45(3) of the Treaty for the Establishment of the East African Community pertains to emoluments, benefits and rules of engagement that accrue to a holder of a staff position post-recruitment and post-appointment, and cannot be stretched to include criteria or requirements that would pre-qualify a candidate for admission to the recruitment process.
Employment & Labour — Recruitment — Quota System — Application at Commencement of Recruitment Process
Under Clause 4.6 of the Operational Manual for the Implementation of the Quota System in Recruitment of Staff in the East African Community, a Partner State must have the requisite quota points at the commencement of a recruitment exercise for its citizens to be considered eligible candidates, and the quota points applicable to a recruitment process accrue at the beginning of the exercise and not at the point of selection of the winning candidate.
Administrative Law — Interpretation and Implementation of Operational Manual — Discretion of Secretary General
Clause 7.1 of the Operational Manual for the Implementation of the Quota System vests the interpretation and implementation of the Manual with the Secretary General of the East African Community, and this mandate must be exercised with demonstrable transparency, objectivity and professionalism. The rounding off of quota points held by Partner States to the nearest whole number, consistent with the computation of quota points applicable to staff positions, is a logical, rational and objective implementation of the quota system.
Administrative Law — Treaty Interpretation — Subsequent Agreements — Vienna Convention on the Law of Treaties Article 31(3)(a)
Article 31(3)(a) of the Vienna Convention on the Law of Treaties takes due cognizance of any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions. An operational manual enacted on the recommendation of the Council of Ministers to operationalise a system under the Treaty represents an agreement of the Partner States and is pertinent to the application of the Treaty.
Evidence — Burden of Proof — Evidential Burden on Party Asserting Compliance
The party that raises a claim or advances a particular contention bears the burden of establishing the elements of fact and of law on which the decision in its favour might be given. Where a respondent pleads compliance with a legal provision, the evidential burden on the issue of compliance rests with that party.
Civil Procedure — Extension of Time — Late Filing of Pleadings — Acquiescence by Opposite Party
Where a party files pleadings out of time in contravention of a court order, but the opposite party does not object and itself files submissions in reply late, the silence or inaction of the opposite party constitutes sufficient reason for the court to exercise its discretion to extend the time prescribed and admit the late pleadings on the court record.

Legislation cited (19)

  • Treaty for the Establishment of the East African Community Article 6(d)
  • Treaty for the Establishment of the East African Community Article 6(e)
  • Treaty for the Establishment of the East African Community Article 14(1)
  • Treaty for the Establishment of the East African Community Article 14(3)
  • Treaty for the Establishment of the East African Community Article 14(3)(a)
  • Treaty for the Establishment of the East African Community Article 14(5)
  • Treaty for the Establishment of the East African Community Article 23
  • Treaty for the Establishment of the East African Community Article 45(1)
  • Treaty for the Establishment of the East African Community Article 45(3)
  • Protocol on Decision Making by the Council of the East African Community Article 2(1)(g)
  • Protocol on Decision Making by the Council of the East African Community Article 2(1)(h)(i)
  • Protocol on Decision Making by the Council of the East African Community Article 2(2)
  • Operational Manual for the Implementation of the Quota System in Recruitment of Staff in the East African Community Clause 2.0
  • Operational Manual for the Implementation of the Quota System in Recruitment of Staff in the East African Community Clause 3.5
  • Operational Manual for the Implementation of the Quota System in Recruitment of Staff in the East African Community Clause 4.6
  • Operational Manual for the Implementation of the Quota System in Recruitment of Staff in the East African Community Clause 7.1
  • EAC Staff Rules and Regulations 2006 Regulation 23(8)
  • Vienna Convention on the Law of Treaties Article 31
  • Vienna Convention on the Law of Treaties Article 31(3)(a)

Cases cited (4)

  • Henry Kyarimpa v Attorney General of Uganda (EACJ Appeal No. 6 of 2014)
  • Shabtai Rosenne: The Law and Practice of the International Court, 1920-2005, Vol. III, Procedure, p.1040
  • Halsbury's Laws of England. 2001 Reissue. Vol 9(1). para. 458. p.55
  • Ibrahim, Ashraf Ray, The Doctrine of Laches in International Law, Virginia Law Review, Vol 83, No. 3, 1997, pp. 647 - 692

Full judgment

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Etienne and Anor v Secretary General of the East African Community (Reference 5 of 2015) [2016] EACJ 37 (23 March 2016)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.