Kenya seeks costs from lawyer Mabirizi in EAC boss case

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The Attorney General of Kenya has asked the East African Court of Justice (EACJ) to not only dismiss the case filed by Ugandan lawyer Hassan Male Mabirizi against the removal of Dr Peter Mathuki as the secretary general of the East African Community (EAC), but also be ordered to pay costs.

In March this year, Mabirizi sued the Government of Kenya over the removal of Dr Peter Mathuki as EAC secretary general before expiry of his five-year term.

Mabirizi contends that the removal of Mathuki from the position before expiry of his term of office offends the EAC Treaty and it is thus illegal.  

However, in response to Mabirizi’s case, Stephen Terrel, a principal state attorney from the chambers of the Attorney General of Kenya wants the East African Court of Justice to decline all prayers and declarations sought by Mabirizi with costs arguing that his case is frivolous.

Kenya's Attorney General argues that there is no right that was infringed when Mathuki was recalled by President William Ruto.

Citing Article 132 (2) (e) of the Kenyan Constitution, Terrel says the President of Kenya is vested with powers to nominate with approval of the national assembly, appoint and dismiss high commissioners, ambassadors, diplomatic and consular representatives.

Mathuki was on March 8, this year nominated by Ruto to serve as the ambassador of Kenya to Russia and he was replaced by Caroline Mwende Mueke.  

Kenya's Attorney General contends that Article 6 of the EAC Treaty gives expression to the respect for sovereignty of its member states.

Regulation 96 (1) (a) of the EAC Staff Rules and Regulations of 2006 provides that a partner state wishing to withdraw an executive staff member is required to provide six months’ written notice to the summit through the council and regulation 96(1)(b) species that the termination of the secretary general must be upon the recommendation of the summit.   

However, the Kenya’s Attorney General denies usurping the role of the summit stating that they sought for an extra ordinary meeting of the council to recommend to the summit the withdrawal of Mathuki and the appointment of new secretary general as well as waiver of the six months’ notice as provided under Regulation 96 (1) (a) of the EAC staff rules and Regulations of 2006.

In his reference to the court, Mabirizi argues that the removal of Mathuki was in contravention of the EAC treaty which states that the secretary general shall serve a fixed five-year term.

Mabirizi wants the East African Court of Justice to issue an order annulling the decision by Kenya to replace Mathuki and it also awards him general, exemplary, and punitive damages. The court is yet to fix the hearing dates for the case.