By LUKE ANAMI

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Some lawyers in East Africa have criticised the manner in which Kenya recalled East African Community Secretary-General Peter Mathuki, saying the unilateral move by President William Ruto was against the spirit of the EAC Treaty.

On Tuesday, Ugandan lawyer Male Mabirizi moved to the East African Court of Justice seeking orders to reverse the recall and deployment of Dr Mathuki as Kenya’s ambassador to Russia.

The lawyer, who is no stranger at the EACJ, as he has filed numerous cases there, stated the decision by Kenya to recall Dr Mathuki and replace him with another appointee was unlawful and contrary to the Treaty establishing the EAC.

In his application, Mr Mabirizi argues that the decision to recall the EAC boss violates the Treaty, which unequivocally mandates that “the Secretary-General shall serve a fixed five-year term.”

Read: Why EAC boss Peter Mathuki has to go

“Your applicant prays that the court issue a permanent injunction restraining Kenya from furthering with the implementation of the February 8, 2024 action and decision of the President of Kenya to replace Secretary-General East African Community, Peter Mathuki, before the expiry of his fixed five-year term,” reads the petition.

He criticised Kenya for disregarding the Rule of Law and Equal Opportunities Doctrine, fundamental principles of the EAC, as well as Article 7(2) of the EAC Treaty, which designates the rule of law as an operational principle of the community.

“The above impugned action and decision undermines the independence of the Office of the SG as it relegates him to a mere ambassador capable of being called back home as opposed to a Principal Executive Officer of the Community purpose of limiting Judges to seven years’ of tenure.”

He said President Ruto undermine the role of the heads of state summit in the appointment of an SG.

“The action undermines the role of the Summit as the appointing authority of the SG, since the nominator usurped powers of the appointer,” Mr Mabirizi says.

The Pan-African Lawyers Union (Palu) also warned that the decision by President Ruto could set a precedent, and other partner states could start recalling their nationals to settle political scores.

Read: EAC boss Mathuki named Kenya’s envoy to Russia

“For the secretary-general, like all senior officials of international organisations, there is an appointing authority. In the case of the EAC, that authority is the summit of the heads of state. Therefore, that means that the appointing authority is also the disappointing authority,” said Donald Deya, Palu CEO. “Therefore, this idea that while you are a senior international civil servant that you can be recalled by your nominating state, or any other state unilaterally is very dangerous for regional integration and harmony of organisations.”

“It also means that each head of state is subject to none of them having an impediment such as a suspension or anything. That is because the moment you get the appointment and swear the oath, you swear the oath to serve all member states equally. And if it could be that one could hire and fire you, that means you could be spending the entire time serving that one.”

Mr Deya said that the most President Ruto should have done was to show the public that due process was carried out in Dr Mathuki’s removal.

“The most that should have been done, the summit should have been consulted. They should have received some due process — that this is what we have done, and this is the decision that the summit has made, rather than a situation where one head of state is saying we have withdrawn him. In fact, we have given that guy another job and now we are going to inform the summit,” Mr Deya said.

These developments came as Dr Mathuki appeared on a photo circulated on social media with President Museveni, with pundits speculating that he had sought the veteran leader’s intervention either to save his job or to get the Ugandan Eala MPs who have led the onslaught against him in the House to back off.

It was not clear by press time what the outcome of the meeting was as none issued a comprehensive statement.

Ugandan MPs Dennis Namara and Paul Musamali have been vocal in seeking the SG’s censure over the alleged failure to seek the House’s appropriation on some $6 million.

Back in Nairobi, Eala MPs were relentless in their pursuit for accountability in view of audit queries over the use and expenditure of the funds meant for the peace process in the eastern Congo tabled by Kennedy Mukulia, an Eala MP from South Sudan.

“As we scrutinised the operationalisation of the Peace Facility Fund, several noteworthy points came to our attention. The EAC Peace Facility account was opened without obtaining the approval of the Council of Ministers, which goes against the stipulation of Regulation 36(4) of the EAC Financial Rules and Regulations,” Mr Mukulia told the House.

“An investigation should be initiated into the expenditure incurred without proper appropriation. Those found to be involved should be subjected to disciplinary actions.”

Dr Mathuki denied the allegations. In a press statement, he said the Council of Ministers “always gives prior approval on expenditure of funds of the Community,” and since he assumed office “there has never been any adverse audit reports on his part or the Secretariat.”