Court gives reasons for declining to grant interim orders to stop the process of recruitment of the EACJ Registrar in two cases
1st Matter
The First Instance Division on 11th November 2015 declined to grant interim orders in an Application filed by Alice Nijimbire from the Republic of Burundi in her case against the Secretariat for rejecting her request for dispensation to do interviews for the said position from EAC Headquarters in Arusha.
The Applicant on 28th October filed an Application seeking Court to grant the interim orders to stop the process of the recruitment of the Registrar pending hearing of the main case before Court. The Court disallowed the Application and reserved the reasons to be delivered on notice and these are the reasons:
The court said that it recognises the principles that governing the grant of interim orders. That the Applicant must demonstrate a prima facie case probability of success, but the interim orders sought would not normally be granted unless such Applicant might suffer irreparable injury that could not adequately be compensated by an award of damages.
Furthermore, the Court found out that the Application did not establish a prima facie case and the Applicant has not sufficiently demonstrated the irreparable injuries that she is to suffer yet she seeks nullification of the decision of the Respondent / Secretariat on 28th September 2015 (The suspension of the recruitment process and re launch of the interview process under a different panel of interviews.
In addition, the Court was unable to determine the Applicant’s prospects of success in the interview from the proceedings presented, that this would have provided a guide as to the magnitude of her injury should the recruitment process not be halted.
The Court also found that the circumstances of the case are such that halting the recruitment process in the absence of satisfactory proof of injury to be suffered by the Applicant would occasion greater injury to the Respondent (EAC Secretariat) that has discharged its duty as far as the recruitment process is concerned. Court also found out that no documentary proof in support of her claims was submitted.
Again, the Court said that the recruitment process seem to be in advanced stage and only awaits the appointment of the successful candidate by the appointing authority, the Council of Ministers.
The Court further stated that the recruitment process involves the engagement of consultant (Deloitte and Touché) as well as other costs and logistics attendant to an interview of the candidates in their home country by a teleconference. In that regard the Respondent followed the directive by the Council of Ministers that the recruitment process of the Registrar must be concluded by 31st October 2015. For the above findings and reasons, the Court disallowed the Application without costs. The main case was scheduled for January next year.
The subject of this matter is that the Applicant Alice Nijimbire has sued the EAC Secretariat against its decision in her request for dispensation to do interviews for the position of the Registrar of the EACJ at EAC Headquarters not in Burundi as she was called for interviews in Burundi but because she resides in Arusha and that her child was very sick she requested to do interviews in Arusha, however the Secretariat rejected her request. The applicant alleges that it is breach of the Treaty Articles 6(d), (e) and (f) for the Establishment of the Treaty.
2nd Matter on the same related issue: Reasons of the Ruling
The First Instance Division also gave reasons for the ruling on 30th October 2015 disallowing the Application filed by Mr Rwenga Etienne and Mr Moses Marumbo citizens from the Republic of Rwanda and United Republic of Tanzania respectively versus the Secretary General of the East African Community.
The Applicants are challenging the act of the Secretary General to recruit the Registrar of the East African Court of Justice on the basis of requirements other than the ones set out by Article 45(1) of the Treaty is an infringement of the Treaty. Article 45(1) provides that “The Council shall appoint a Registrar of the Court from among citizens of the Partner States qualified to hold such high judicial office in their respective Partner States”.
The Applicants are therefore seeking the interim orders restraining the Secretary General or any other person drawing orders from him from continuing with the process of the recruitment of the Registrar of the East African Court of Justice pending the hearing of the main case.
The Court in its ruling also said that the Applicant have not sufficiently demonstrated the irreparable injury they stood to suffer if this Application was disallowed in accordance with the principles that governing the grant of interim orders. The Court went ahead and declined to grant the interim orders as sought and the matter is also scheduled for January 2016.
The subject of the matter is that the Applicant challenges the process of recruitment of the Registrar of the Court (EACJ) on ground that it was not transparent nor fair because the Secretary General selectively applied the quota system and denied citizens of Rwanda and Tanzania the opportunity to competitively participate in the said process and that such an action undermines the spirit of integration enshrined in Article 6(d) of the Treaty.
Also, alleges that the Respondent declined to abide by the directive of the Council of Ministers which directed to recruit the Registrar in accordance with Article 45 of the Treaty as well as Staff Rules and Regulations. That instead he purported to amend the directive by demanding qualifications of the Office of the Registrar beyond what is set out in Article 45.