Case Number ADVISORY OPINION NO. 1 OF 2015

In 2009, the Republic of Rwanda, nominated its national Mr. Alloys Mutabingwa, for appointment in the position of East African Community Deputy Secretary General for a three-year term. However, before the expiry his contract, Rwanda nominated Ambassador Dr. Richard Sezibera for appointment as Secretary General of the Community for a term of five years pursuant to Article 67 (2) of the Treaty. In the light of this appointment, Mr. Mutabingwa’s contract ended twelve months before its due date so the Community compensated him for the unexpired period of his contract. Subsequently, the Community Secretariat requested reimbursement from the Republic of Rwanda averring that this was the practice as the Republics of Uganda and Tanzania had previously compensated the Secretariat when the contracts of their nationals had been terminated prematurely in similar circumstances. Rwanda declined to pay stating that the matter was beyond the ambit of Rule 96(3) of the EAC Staff Rules and Regulations and there was no clear established State practice in regard to compensation.

After deliberations, the EAC Council of Ministers were unable to resolve this matter, thus they sought an advisory opinion on the interpretation and application of Article 67(2) of the Treaty and Rule 96(3) of the Staff Rules. The query was whether ‘forfeiture’ of the position of Deputy Secretary General under Article 67 (2) of the Treaty paving the way for an incoming Secretary General from the same Partner State was in effect a ‘withdrawal’ of such Deputy Secretary General form their position.

ComplainantCouncil of Ministers
Date filed
CountriesBurundi , East African Community , Kenya , Rwanda , Tanzania , Uganda
KeywordAdvisory opinions , Community employees , Forfeiture of position , International civil servants , Principle of pacta sunt servanda , Staff rules and regulations , State practice , Treaty interpretation
Treaty ArticleArticle 14 , Article 36 , Article 67 , Article 70 , EAC Staff Rules and Regulations , Rule 75 , Rule 96 , Vienna Convention on the Law of Treaties (Article 31)

First Instance Judgment

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Appeal Judgment

  1. In the EAC, a contract of employment is strictly between the Employer (the Community), on the one hand, and the Employee (in this case the Deputy Secretary General), on the other. Upon appointment, office bearers acquire the status and character of international civil servants, beholden to no single Partner State. They owe all their loyalty and fidelity to the Community which is their Employer.
  2. The EAC Partner States are not privy to the benefits of that contract; nor are they party to its obligations. They are not bound by the terms of that contract on account of the international law principles of Pacta Sunt Servanda, a pact or contract binds or its parties. Therefore, no Partner State has any employment rights over or employment relationship with staff members of the Community as set out in Article 72 of the Treaty.
  3. For a practice to qualify as State practice in international law, the practice in question needs to be active, consistent, uniform, to occur with a certain frequency and be widespread among the great majority of the group of States involved. The practice necessary to establish a rule of customary international law must have been pursued over a certain length of time (North Sea Continental Shelf case, Sorenson J) Occurred over an appreciable duration or vintage age in terms of its continuity and longevity.
4.The act of forfeiture of the position of Deputy Secretary General is not a choice of any Partner State. It occurs when the confluence of events force a Partner State to either nominate a new Secretary General or sacrifice an existing position of Deputy Secretary General. It is a consequence imposed by automatic operation of the law – without the free will or choice of the Partner State concerned due to in principle of rotation in the Treaty. 5.The withdrawal of Deputy Secretaries General from their positions by a Partner State, to make way for an in- coming Secretary General of the same Partner State, though contemplated in Rule 96(3) of the Staff Rules and Regulations, would be a consequence of the free will and choice of the particular Partner State and would be
inconsistent with and contrary to the objectives and purpose of the Treaty concerning the principle of rotation in Article 67(1) and (2) of the Treaty. 6.The practice whereby two Partner States refunded to the Secretariat of the Community the compensation paid to two former Deputy Secretaries General of their nationality for premature termination of their tenure in order to give way to the in-coming Secretaries General of the same nationality, has not as yet sufficiently developed to trigger objective recognition under international law as an “established State practice”. It is at best a developing practice. Compensation made by Uganda took place prior to the 2006 Staff Rules and, therefore, lacked any legal basis hence leaving Tanzania’s compensation as the lone “practice”. There is therefore, no legitimate basis to hold this as a valid “practice” of the Partner States of the East African Community. Accordingly, it cannot be taken into account for purposes of interpreting or applying Article 67(2) of the EAC Treaty, and Rule 96(3) of the EAC Staff Rules and Regulations. 7.The Republic of Rwanda is under no legal obligation to refund the compensation that was paid in 2011 by the Secretariat of the Community to the outgoing Deputy Secretary General. 8.Given the inconsistency between the Treaty and the Staff Rules, which are made pursuant to Articles 14(3) (g) and 70(3) of the Treaty, the Staff Rules must, to the extent of the inconsistency, yield to the primacy of the provisions of the Treaty. To avoid the friction between Article 67(2) of the Treaty and Rule 96(3) of the Staff Rules and Regulations, the two need appropriate harmonization by the competent organs and authorities of the Community.
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Date deliveredNovember 19, 2015