The East African Community Secretariat’s decision not to grant an applicant a special dispensation on interview is not a breach of the principles of social justice
Alice Nijimbere v East African Community Secretariat
In the East African Court of Justice at Arusha
First Instance Division
Reference No.7 of 2015
M.K Mugenyi. PJ, I Lenaola.DPJ, F.Ntezilyayo J, F.A ]undu J, & A.Ngiye J
March 23, 2016
Reported by Linda Awuor & Kevin Kakai
Sometime in June, 2015, the Respondent advertised for interested persons to apply for the position of the Registrar of the East African Court of Justice. The Applicant duly applied for the position on July 6, 2015, was shortlisted and invited for an interview on September 28, 2015 at 14:15 hours at the offices of the Ministry of East African Community Affairs in Bujumbura. The invitation was dated September 23, 2015. The Applicant was also directed by an e-mail of the same date sent by the Respondent’s agent M/S Deloitte Consulting Ltd of Dar es Salaam, Tanzania (Deloitte) that she was to make her own travel and accommodation arrangements prior to the interview and that her expenses would be reimbursed if need be. The Applicant then wrote an email to Deloitte on September 24, 2015 at 10:37 am and stated that she was unable to travel to Bujumbura as requested and that she should be granted a special dispensation to attend the interview at Arusha since she had been informed that the interview panel would be seated at the EAC headquarters using teleconference services.
On September 25, 2015 Deloitte wrote to her and stated that the directive of the relevant authority was that each candidate would be interviewed in their country of origin and she was requested to give reasons why she wanted a special dispensation and she responded at 11.36 a.m on the same day by stating that her daughter was sick and her health status did not allow her neither to travel with her nor leave Arusha because she had no one to assist her during her absence. At 13.56 hrs the same day she was requested to give proof that her child was hospitalized before the relevant decision makers could seek consideration in regard to her request. She sent a single document from AAR health services at 9.02 am on September 26, 2015 in answer thereto and on September 28, 2015(the day of the interview) she sent a reminder at 8.23 am. Deloitte responded at 9.17 am and stated that the relevant decision makers had not yet communicated their decision to it.
On the same day at 11.07 a.m an email was sent to the Applicant forwarding the decision of the Deputy Secretary General in charge of Finance and Administration at the EAC Secretariat to the effect that: a candidate for the aforesaid interview could only be interviewed by video conferencing at his or her country of origin, that the Applicant’s child was not admitted to any hospital and that the document presented indicated that the child was to return to hospital after one week for observation, that to grant all candidates a level playing field, all of them ought to have been interviewed via video conferencing at the ministries responsible for EAC affairs in their respective partner states.
At 14:14 hours, five minutes before the interview was to start, the Applicant protested at the decision and reiterated that she was unable to travel to Bujumbura on account of having a sick child
(i) Whether the secretariat could be sued in its own name.
(ii) Whether the Respondent abused his administrative powers by communicating the decision rejecting the request of dispensation, just one hour before the interview time on the following Monday contrary to article, 71(h) of the Treaty.
(iii) Whether the Respondent breached the provision of regulation 20(7) of the EAC Staff Rules and Regulations, 2006 by requesting the Applicant to find her own means of travel and accommodation expenses contrary to article, 6(d) of the Treaty.
(iv) Whether the respondent’s decision not to grant the applicant a special dispensation regarding the place of interview was a breach of the principles of social justice, equal opportunities and gender equity
(v) Whether the applicant was discriminated on account of her gender and of being a mother
International law – East African Community – legal capacity of the community – the secretariat – whether the secretariat can be sued in its own name – Treaty For The Establishment of The East African Community, article 1
International law – East African Community – the secretariat – functions of the secretariat – whether the respondent abused his administrative powers by communicating the decision rejecting the request of dispensation, which he received on a Saturday and responded to just one hour before the interview time on the following Monday – Treaty For The Establishment of The East African Community, article 71(h)
International law – East African Community – Staff Rules and Regulations -whether the respondent breached staff rules and regulations by requesting the applicant to find her own means of travel and accommodation expenses – Treaty For The Establishment of The East African Community, article 6 (d), EAC Staff Rules and Regulations, 2006, regulation 20 (7)
International human rights law – right to social justice, equal opportunity, gender equality and equal representation – whether the respondent’s decision not to grant the applicant a special dispensation regarding the place of interview was a breach of the principles of social justice, equal opportunities and gender equity- Whether the applicant was discriminated on account of her gender and of being a mother- Treaty For The Establishment of The East African Community, article 6 (d), (e) & (f)
Relevant Provisions of Law
Article 1 – Interpretation
1. In this Treaty, except where the context otherwise requires –
Article 4 – Legal Capacity of the Community
- The Community shall have the capacity, within each of the Partner States, of a body corpora t e with perpetual succession, and shall have power to acquire, hold, manage and dispose of land and other proper ty, and to sue and be sued in its own name.
- The Community shall have power to perform any of the functions conferred upon it by this Treaty and to do all things, including borrowing, that are necessary or desirable for the performance of those functions.
- The Community shall, as a body corporate, be represented by the Secretary General.
Article 6 – Fundamental Principles of The Community
The fundamental principles that shall govern the achievement of the objectives of the Community by the Partner States shall include:
(d) good governance including adherence to the principles of democracy, the rule of law, account ability, transparency, social justice, equal opportunities, gender equality, a s well a s the recognition, promotion and protection of human and peoples rights in accordance with the provisions of the African Charter on Human and Peoples’ Rights;
(e) equitable distribution of benefits; and
(f) co-operation for mutual benefit.
Article 9 – Establishment of the Organs and Institutions of the Community
1. There are hereby established as organs of the Community:
(g) the Secretariat
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 66 – Establishment of the Secretariat
The Secretariat shall be the executive organ of the Community.
There shall be the following offices in the service of the Community:
(b)Deputy Secretaries General;
(c)Counsel to the Community; and
(d)such other offices as may be deemed necessary by the Council.
Article 67 – Secretary General
1. The Secretary General shall be appointed by the Summit upon nomination by the relevant Head of State under the principle of rotation. 2. Upon the appointment of the Secretary Genera l the Partner State from which he or she is appointed shall forfeit the post of Deputy Secretary General. 3. The Secretary Genera l shall be the principal executive officer of the Community and shall:
(a)be the head of the Secretariat;
(b)be the Accounting Officer of the Community;
(c)be the Secretary of the Summit; and
(d)carry out such other duties a s a re confer red upon him by this Treaty or by the Council from time to time.
4. The Secretary General shall serve a fixed five year term.
5. The terms and conditions of service of the Secretary Genera l shall be determined by the Council and approved by the Summit.
Article 70 – Other Officers and Staff of the Secretariat
1. There shall be such other officers and staff in the service of the Community as the Council may determine. 2. All staff of the Secretariat shall be appointed on contract and in accordance with staff rules and regulations and terms and conditions of service of the Community. 3. The salaries, job design and other terms and conditions of service of the staff in the service of the Community shall be determined by the Council.
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 general 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.
The East African Court of Justice Rules of Procedure 2013
Rules of Court
Section XIX: Costs
(1) Costs in any proceedings shall follow the event Costs unless the Court shall for good reasons otherwise order.
(2) If it appears to Court that costs have been incurred improperly or without reasonable cause by reason of any misconduct or default of the party and or advocate, the Court may call on the advocate by whom such costs have been so incurred to show cause why such costs should not be borne by the advocate personally, and thereupon may make such order as the justice of the case requires.
East African Community Staff Rules & Regulations, 2006
Part IV – Appointments
Regulation 20 – General Provisions
1. The foremost consideration in the appointment of staff shall be the need to secure the highest standards of efficiency, technical competence, professionalism and integrity. 2. No recruitment shall be undertaken unless an approved vacancy exists in the establishment of the Community and for which financial provision has been made. 3. All vacancies with the exception of the posts of Secretary General and the Deputy Secretaries General shall be advertised in the major circulating newspapers in the Partner States, including use of electronic media. 4. The advertisement(s) shall state the level of the position, required qualifications as well as position specifications and terms and conditions of service. 5. All members of staff shall be nationals of the East African Community. 6. Selection of Staff to fill vacancies shall be transparent, fair and equitable and will be based on the set requirements for each post. 7. The Community shall pay travel and accommodation expenses for the short listed candidates for the posts advertised. 8. Recruitment of Staff of the Community shall as far as possible, be reflective of equal representation of the Partner States. 9. The marriage of one member of staff to another shall not affect the contractual status of either spouse, provided each shall not be assigned to serve in a post which is immediately superior or subordinate in the hierarchy of authority to the spouse. 10. A member of staff shall disqualify himself or herself from participating in the process of reviewing an administrative decision affecting his or her relative or his or her spouse. 11. No candidate above the age of 55 will be considered for employment in the Community under the Professional and General Staff Category. 12. In the recruitment of Staff, gender balance shall be taken into account. 13. All appointments to the Community shall be in writing.
- The EAC Secretariat was created under article 66 as read with article 70 of the Treaty and its functions were set out in article 71 thereof. Under article 71 (2), the Secretary General was enjoined to act on behalf of the Secretariat and in article 67 (3) (a) he was the head of the secretariat.
- Article 4 of the Treaty granted the EAC legal capacity and under article 4 (3), it was to be represented in court proceedings as a body corporate by the Secretary General. Under article 30 (1) of the Treaty, a natural person, such as was the Applicant could challenge any Act, regulation, directive, decision, an action of a partner state or institution of the Community on grounds of unlawfulness or infringement of the Treaty.
- The Secretariat was an organ of the EAC under Article 9 (1) (g) of the Treaty and it seemed that it could only be sued through the Secretary General and not directly as a Respondent. Where a wrong party in law had been sued no orders would be issued against it.
- Social justice was the principle that all individuals and groups were entitled to fair and impartial treatment and had equal opportunities. It was also premised on the natural law that covered all people regardless of gender, origin, possession or religion.
- The Respondent’s decision to have a level playing field, and that each candidate would be treated equally in all aspects of the interview process was, logical, reasonable and lawful. The converse would have been unreasonable. Had the Applicant’s plea been summarily dismissed, the Court would have frowned upon such an action but not in the then circumstances. There was an obligation that in the conduct of its affairs and specifically where an administrative decision had to be reached, there was a necessary implication that the Respondent was required to observe the rules of natural justice. One of the rules was that of fair hearing.
- The Applicant was an applicant in her professional capacity and the fact that her motherhood may have interfered with her professional pursuit could not convert the issue into one of gender inequality.
- Unable to find that she had no other way of mitigating her circumstances and it was satisfied that neither vis major nor force majeure were applicable to her circumstances.
- The reason why the interview was not conducted had all to do with the Applicant’s unfortunate circumstances and not simply because she was from Burundi. She was also shortlisted for the interview because she was qualified for the job subject to the interview and not principally because she was from Burundi. The fact that she was the only one from Burundi only attested to those credentials and not her nationality per se.
- Discrimination occurred where there was any distinction, exclusion, restriction or preference based on any ground such as race, sex, national or social origin, and which had the effect of nullifying or impairing the recognition, enjoyment or exercise by all persons on an equal footing of all rights and freedoms. Not every differentiation of treatment constituted discrimination if the criteria for such differentiation were reasonable and objective and if the aim was to achieve a legitimate purpose.
- In the Australian Anti-Discrimination Act, 1991, direct discrimination was defined as happening when a person with an attribute was treated less favorably than another person without the attribute. There was no other interviewee who had a sick child who was treated differently from the Applicant. There was no other woman interviewee who had demanded or requested to be interviewed at the EAC Headquarters in Arusha and was so interviewed unlike the Applicant. There was no other person’s treatment who the Court would measure the Applicant’s treatment by the Respondent to enable the Court determine whether there was discrimination. It was trite law that he who alleges must prove, the Applicant had failed to prove any allegations of discrimination.
- At no time did the Applicant protest about the short notice given (if at all it was short). She sought dispensation for a wholly different reason; that her child was sick. The communication between the Applicant, Deloitte and the Respondent took place between September 24, 2015 and September 28, 2015. Two of those days fell on a weekend and it was impractical to have expected that a concise answer on any question arising would have been given to the Applicant prior to Monday, September 28, 2015 which happened to have been the day of the interview. The Court was unable to fault the Respondent in the circumstances. In any event, the issue was an afterthought, had no basis in either the Reference itself nor in the events prior to the filing of the Reference.
- Regulation 20(7) did not also state that the payment should have been in advance of the interview and since the EAC was a membership organization ran on funds from partner states, to put such monies at risk of loss could not have been an accountable way of managing resources. The issue was academic because the Applicant did not turn up for the interview and the question of payments, refunds could not arise.
- The Applicant introduced one other remedy, compensation for her alleged losses. Such a claim could not have been introduced to the pleadings in such a manner and should not be delved into at all. Where a matter was not pleaded and the other party had no opportunity to respond to it, the ends of justice would not have been met if a court were to determine it.
- Under Rule 111 of the Court’s Rules of Procedure, 2013, costs followed the event unless the Court for good reasons otherwise ordered. The Applicant was unable to attend the interview for reasons she thought entitled her to special dispensation. The Respondent nonetheless acted reasonably despite the Applicant’s circumstances and that the Court could see no breach or violation of the Treaty on its part.