PRESS STATEMENT BY RT. HON. DR. KIRUNDA KIVEJINJA, CHAIRPERSON OF THE EAC COUNCIL OF MINISTERS ON THE LEGAL CIRCUMSTANCES ON THE COMMENCEMENT OF THE 4TH EAST AFRICAN LEGISLATIVE ASSEMBLY
The Deputy Secretary General, Hon. Jesca Eriyo;
Counsel to the Community, Hon. Dr. Anthony Kafumbe;
Members of the Media;
Ladies and Gentlemen
The purpose of inviting you this morning is to brief you on why the 4th East African Legislative Assembly (EALA) has not yet been convened. Upon consultation with the Secretary General, the Clerk, and the Counsel to the Community, I take this opportunity to brief you on the situation is as follows:
The term of office of the 3rd East African Legislative Assembly ended on 4th June 2017. Elections of new Members to constitute the next (4th) Assembly were expected to have been finalized by then by all Partner States so that the 4th Assembly would commence on 5th June 2017. This did not happen because of two factors namely;
1. One of the Partner States (Republic of Kenya) had by that date not elected its nine (9) Members;
2. Upon an application in Reference 5 of 2017 by a citizen of one of the Partner States (the Republic of South Sudan), the East African Court of Justice issued Interim Orders to the EAC not to recognize the nine Members who were said to have been elected to EALA. Subsequently there was a hearing and the applicant withdrew the application on grounds that the Republic of South Sudan had revoked the election of RSS Members and committed to hold fresh elections by end of June, 2017.
As a result of the foregoing, the 4th Assembly could not commence on 5th June 2017 and has not been able to convene due to legal circumstances namely incomplete membership of the Assembly and the inability to hold a session of the first meeting of the Assembly as explained below:
1. Membership of the Assembly
Article 48 (1) of the Treaty for the Establishment of the East African Community defines the Membership of the Assembly as:
The membership of the Assembly shall comprise:
(a) nine Members elected by each Partner State; and
(b) ex-officio Members consisting of:
(i) the Minister responsible for East African Community Affairs from each Partner State;
(ii) the Assistant Minister or Deputy Minister of State responsible for East African Community affairs from each Partner State: Provided that an Assistant Minister, Deputy Minister or Minster of State may only participate in the meetings of the Assembly when the substantive Minister responsible for East African Community affairs is for any reason unable to participate; and
(iii) the Secretary General and the Counsel to the Community.
2. Session of the First Meeting of the Assembly
(i) According to Section 10 (1) of the East African Legislative Assembly Elections Act 2012 provides as follows:
“A session of the first meeting of the Assembly shall be convened by the Clerk in Arusha, in the United Republic of Tanzania.”
(ii) Rule 4 of the Rules of Procedure of the Assembly provides that: “The Clerk shall at least 14 days prior to the first sitting of the new Assembly, notify elected Members of the House through the Clerks of the National Assemblies of the Partner States the date and the venue of the first Sitting.” (This had been done by the Clerk vide his letter of 22nd May 2017 but later postponed due to, among others, the knowledge that one of the Partner States would not have elected its Members by 5th June 2017).
(iii) Rule 6 (2) of the Rules of the Assembly provides that: “No business other than an election of the Speaker shall be transacted in the House at any time the office of Speaker is vacant”.
It is therefore necessary to define the terms above according to Rule 1 of the Assembly’s Rules of Procedure.
(a) “Session” means the period when the Assembly is sitting continuously from the First Sitting of a session after an election to the sitting when its prorogued.
(b) “Meeting” means any sitting or sittings of the Assembly commencing when the Assembly first meets after being summoned at any time and ending when the Assembly is adjourned sine die or at the conclusion of a session.
(c) “Sitting” means a period during which the Assembly is sitting continuously without adjournment and includes any period during which the Assembly is in Committee; but so that two or more periods of sitting within the normal period of one sitting, or within an equivalent period shall not rank as more than one sitting.
(d) “House” means the Assembly
From the foregoing, the Assembly is yet to attain full membership given that two Partner States are yet to elect their 9 Members; and similarly, the Assembly is unable to convene a session of the first meeting of the Assembly and transact business as required under Rule 6(2) of the Rules of Procedure of the Assembly.
3. The issue of Administration of Oath
Although four (4) of the Partner States have carried out elections of their nine (9) Members to the Assembly, they cannot be sworn in before the other two Partner States have done so. This is because Rule 5 (1) of the Rules of Procedure of the Assembly provides as follows:
“On the first day of a new House, the Clerk shall read out aloud and lay on the table the list of the Members of the House transmitted to the Clerk by the Speaker of the National Assembly of each Partner State in accordance with section 5 of the East African Legislative Assembly Elections Act, 2012”.
As defined above, “House” means the Assembly. Therefore the Clerk can only administer Oath on the first day of a new House when he has all the Members present.
Suffice to say that the taking of Oath is for purposes of enabling each Member to sit or vote in the Assembly as provided for in Rule 5 (4) of the Rules of Procedure. It is not a business of its own.
From the foregoing, the Clerk under the law can only convene Sittings/Meetings of the Assembly, which by definition in Article 48 (1) of the Treaty and the Rules of Procedure of the Assembly as cited above means and includes Members from all the six (6) Partner States.
The Sittings/Meetings of the Assembly are convened to transact business. In case of the first Sitting of a new Assembly, the first business, is to transact is election of Speaker as already noted above. In the current circumstances, that business cannot be transacted without the presence of Members from all the Partner States (Quorum) this is because two of the Partner States, Republic of Kenya and Republic of South Sudan, are yet to carry out the elections of their nine (9) Members.
Rule 12 of the Assembly Rules of Procedure provides that the quorum of the House or the Committee of the whole house shall be half of the elected Members and such quorum shall be composed of at least one third of the elected Members from each Partner State.
Beyond the above, the role of a Member of the Assembly emanates directly from the functions of the Assembly as specified in Article 49 of the Treaty. Article 49 of the Treaty provides that the Assembly is the Legislative Organ of the Community and it is implicit in Article 49 (2) of Treaty among others, that the roles of a Member of the Assembly are discharged in concert with other Members as part of the Assembly.
The Clerk is therefore constrained to convene a Sitting of the Assembly when fully aware that the Assembly is not fully constituted and cannot transact any business.
It should be recalled that the commencement of the Second Assembly was delayed by six months from 29th November 2006 to 4th June 2007 due to similar and or related circumstances. The second Assembly served its 5-year term effective from 5th June 2007 and ended 4th June 2012. A precedent has therefore been set and similarly the five year term of the 4th Assembly will run as soon as the Assembly is fully constituted to be sworn in and transact business.
Rt. Hon. Alhaj Kirunda Kivenjija
2nd Deputy Prime Minister and Minister of EAC Affairs, Republic of Uganda and Chairperson of the EAC Council of Ministers
Done at Arusha, Tanzania this 25th day of July 2017
East African Community
EAC Close, Afrika Mashariki Road
P.O. Box 1096
United Republic of Tanzania
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Email: eac [at] eachq.org