Coming up for hearing: on 25th March 2022.
Reference filed: on 23rd January 2020.
Articles: 6, 7, 8, 9 (1) and (2), 13, 14, 15, 16, 30, 67, 69 (1) &71(1) (a), (b), (d), (k), (l), (m) & (4) of the Treaty for the Establishment of the East African Community (EAC) and all enabling provisions of law.
Subject matter: Council meeting held without quorum.
The Applicant is a legal person duly registered as a company limited by guarantee under the Companies Act of the United Republic of Tanzania and enjoy similar status in the Republics of Kenya and Uganda.
The Applicant alleges that, on or about 28th November 2019 the Council of Ministers conducted its 39th Ordinary meeting in Arusha without quorum (absence of the Attorneys General who are permanent and mandatory members of the Council) and reached several resolutions, among them empowering EAC Ad hoc Service Commission to take on permanent duties of recruiting staff for the Community that can only be performed by an institution established by the Summit under Article 9 of the Treaty.
The Applicant prays this Honorable Court to find the Reference merited and declare the said meeting unlawful and in violation of Article 13 of the Treaty and resolutions, directives, orders flowing from the meeting are void. Further seeks for declarations that, the EAC Ad hoc Service Commission is not an institution under Article 9 of the Treaty and lack mandate to proceed as mandated by the said meeting and any act performed or decision taken by the Commission in pursuit of the resolution from the meeting be declared void.
Additionally alleges, the Respondent and the Counsel to the Community acted in breach of the Treaty by failing to properly advice the Council on lack of quorum and consequential invalidity of a meeting where the Attorneys General were not present. Also prays for costs and any other order the Court considers expedient in circumstances.
The Respondent, Secretary General of the EAC argues that, at all material times the Council, including the 39th Meeting of the Council was seized of quorum. That, the Council pursuant to Article 15(2) of the Treaty determined its Rules of Procedure and wherein matters of quorum were settled. The inclusion of the Attorneys General in the Council was meant to address other issues and not necessarily the lengthy consultations.
That, the EAC Ad hoc Service Commission was established by the Council at its 30th Meeting held on 28th November 2014 to carry out functions regarding professional and general staff, and any matters that may be delegated to it by the Council. Thus, challenging it’s the establishment six years thereafter, is time barred in terms of Article 30(2) of the Treaty.
Further, the EAC Ad hoc Service Commission was constituted as ad hoc for certain functions and as such the powers of the Summit under Article 9(2) of the Treaty to establish institutions was not breached. That, the Council is aware of challenges related to workload analysis and job evaluation among others that was done by the EAC Ad hoc Service Commission and the representation of the Heads of EAC organs and institutions and is expected to address them. It follows that, litigation such as this on matters that the Council is already seized of and addressing has been overtaken by events.
Moreover, at all material times sound advice has been rendered to the Council of Ministers meetings and there was no illegality before or in the course of the 39th Meeting of the Council as alleged.
The Respondent prays this Honorable Court to find the 39th Ordinary Meeting of the Council held on or about 28th November 2019 was not lacking quorum, had been properly advised, there was no breaches of the Treaty and the proceedings were valid.
That, the EAC Ad hoc Service Commission is acting on behalf and within the power conferred on the Council and as such there was no breaches of the powers of the Summit under Article 9(2) of the Treaty, the Respondent has not failed to advice the Council appropriately, the Applicant’s suit has no merits, overtaken by events and should be dismissed in its entirely with costs.
This is a document produced by the Registry to assist in understanding forthcoming matters before the Court. It does not bind the Court. For authoritative Decisions, Judgments and general information about the Court please visit https://www.eacj.org
Contact: Registrar, East African Court of Justice, P.O. Box 1096 Arusha, Tanzania Tel: +255 27 2506093 Fax: +255 27 27 2509493 Email: eacj@eachq.org