By EA Trade Review Team
A group of former employees of the defunct East African Community (EAC) have lost a case filed at the regional court to compel the Kenyan Government to pay dues dating back to the mid seventies.
The 749 former employees had lodged a case in the East African Court of Justice sitting in Arusha, Tanzania challenging an earlier decision by the Kenyan High court to deny the workers dues the community was supposed to pay when it collapsed in 1977.
The employees went to court in June last year saying the Kenya Government had neglected or failed and or refused to pay to them pension and other benefits due to them for services they had rendered to the defunct EAC.
They said that the continued refusal, neglect and/or failure by the Respondent to pay their terminal benefits is contrary to Articles 6(d) and 7(2) of the Treaty and a violation of their rights under the various human rights conventions listed therein.
They wanted the court to order the Kenyan Government to pay them in accordance with their individual records, their terminal benefits for the services they rendered to the defunct EAC.
The payments included pension, additional pension, gratuity, and redundancy payment in lieu of notice, one month's salary in lieu of notice, loss of office benefits, pension emoluments, outstanding/accumulated leave, repatriation expenses, real value and seven per cent compound interest until payment is paid in full.
However the defence contended that the employees were not entitled to the alleged payment and objected saying the court lacks the jurisdiction to hear and determine the case.
They said the reference was also inadmissible in this Court since local remedies had not been exhausted and the EAC Treaty of 2000 cannot be applied retrospectively.
In dismissing the case, Judges Johnston Busingye, Mary Stella Arach-Amoko and
John Mkwawa the EAC treaty of 2000 cannot be applied retrospectively unless a different intention appears from the treaty, or is otherwise established.
“In the absence of a contrary intention therefore, a treaty cannot apply to acts or facts which took place or situations which ceased to exist before the date of its entry into force,” they said.
They said the employees realized that they were never fully compensated in and around 1998, when they filed the suit in the Kenya High Court.
“That was well before the Treaty entered into force in 2000.There is no contrary intention from the reading of the Treaty that it was to apply retrospectively and none has been established by the claimants,” they said.
They unanimously ruled that although the Court has jurisdiction to hear the Reference and that it is not barred by the doctrine of res judicata or the rule of exhaustion of local remedies but cannot entertain the case on account of the non retrospective application of the Treaty.
However, the workers got a retrieve when the judges ordered the Kenyan Government through the Attorney General to pay the costs of the suit..