African Union tribunal blasts AU Commission chair Faki for ‘serious obstruction of justice’

The African Union (AU) is the continent’s premier intergovernmental organisation and has just had its status enhanced by being admitted as a permanent member of the G20 after the recent summit in India.

In a judgment handed down on 1 September by its president, Sylvester Mainga, and two other judges - Jamila B Sedoi and Paulo D Comoane - the tribunal also concluded that Faki’s “unlawful” appointment of Burundian Guy-Fleury Ntwari as legal counsel last year was symptomatic of a general tendency of the AU to appoint people with “strong connections” regardless of their qualifications.

The tribunal added that Ntwari’s appointment “wholly vindicates” Sabelo Mbokazi, the president of the AU staff association, who had written to Faki in 2020 calling on him to “dismantle the rampant corrupt recruitment and appointment cartel” at the AU Commission.  

The tribunal delivered its judgment on an application by two AU Commission officials who had unsuccessfully applied for the position of legal counsel. They both asked the tribunal to reverse Ntwari’s appointment as legal counsel on 2 August 2022. 

They argued that Ntwari got the job by claiming to have held management positions which he never held. The tribunal said the AU Commission had appointed a private audit firm to verify Mtwari’s CV, but that this happened only after he had already been appointed to the job.

The tribunal also found that Faki had ordered internal and external probes into Ntwari’s qualifications for the job, but had disobeyed an order from the tribunal to give it the results of these inquiries as part of its investigation.

The judges blasted Faki for his “brazenness” and “audacity” in refusing to hand over these reports.

Faki had “become a law unto himself” and had reduced the AU Commission to “lawlessness – a serious obstruction of justice” and had caused “reputational damage” to the AU. 

One of the AU officials who asked the tribunal to overturn Ntwari’s appointment, the Cameroonian Robert Eno, also asked the tribunal to order that he himself should get the legal counsel job as he had been told he had ranked first on merit among the applicants for the job.

In his response to the tribunal, Faki’s office did not dispute that Eno had been the top candidate on merit but said other considerations also had been legitimately taken into consideration. One of them was the requirement for national representivity in the AU Commission. 

The commission said Eno was a Cameroonian and Cameroon had already filled its quota of AU Commission directorships, so the job had gone to Ntwari, a Burundian, as Burundi had not reached its quota of directorships. 

The tribunal accepted this argument and so rejected Eno’s demand that he should get the legal counsel job, though it awarded him damages as it said he had been unnecessarily subjected to the anguish of a painful and unnecessary application process despite the AU Commission having clearly already decided in advance to give the job to Ntwari.

The tribunal noted that Eno had on 29 September 2022 received an email from EY, the accounting firm hired by the AU Commission to coordinate the recruitment process, asking him to sign a consent form for a background check on him for the position of legal counsel. He had expressed his surprise to the EY staffer, telling her that the AU Commission had already informed him that Ntwari had been appointed to the job in August.   

EY had confirmed to the tribunal that its background check on Ntwari had also been conducted six weeks after he had already been appointed to the job, “Meaning there was no background check on Mr GFN [Ntwari] at the time of his appointment, when it was required to perform a verification exercise on all interviewed candidates before a decision to hire is made,” the tribunal said. 

This showed that Faki’s assurances that the recruitment of the legal counsel was conducted in line with the AU Commission’s rules and regulations were “totally misplaced and misleading”. 

“The tribunal therefore holds that the recruitment process was flawed.”

The tribunal upheld the application of the other AU official, the Eritrean Paulos Weldesellasie, for Ntwari’s appointment to be rescinded both on the grounds that he had been appointed irregularly and because he had also claimed work experience which he did not have.

Weldesellasie told the tribunal that Ntwari’s name had been inserted into the shortlist after it had already closed. Weldesellasie had asked Emile Rwagasana, the deputy chief of staff at the bureau of the AU Commission’s deputy chairperson, why this had happened.

Rwagasana had told him that this was because the AU had only recently become aware of two management positions that had been held by Ntwari; as acting secretary of  the AU Commission on International Law from 2018-2022 (four years) and as deputy director of the Center for International Law at the Jean Moulin University Lyon III in France from 2011 to 2017 (six years). 

Weldesellasie contended that both job claims were “factually incorrect” and that Ntwari had been credited with both jobs to enable him to meet the requirement of at least eight years of managerial experience for the legal counsel job. 

The tribunal agreed with him. It said the job advertised on 2 April 2022 “required a master’s law degree ‘with 15 years of postgraduate work experience of which a minimum of eight years is expected to be [at] managerial level’.” These rules of selection had not been applied to Ntwari, who did not meet the minimum qualification established for the post.

The tribunal found that the AU external board of auditors had, in its May 2023 report on the AU Commission’s finances in 2022, noted that Ntwari had stated in his CV that he had been acting in the position of legal counsel at the AU Commission since 2018. But the board said his personal file at the AU Commission revealed that Ntwari had joined the African Union Commission as a legal officer on 10 January 2018 and on 3 November 2020 he had become senior legal officer. 

“It is therefore impossible that he can act as legal counsel (acting) from 2018,” the board concluded. 

In any case, Faki had only signed off on Ntwari’s acting appointment on 27 March 2021. 

“This means that the person does not meet the requirement to have at least eight years of experience in management positions required by the job description.” 

The auditors’ board also criticised the AU Commission’s human resources directorate for failing to inform the recruitment panel about Ntwari’s “misrepresentation on his CV relating to his professional career within the AUC [AU Commission]”, the tribunal said.

The human resources directorate could not have been unaware of the CV of one of the AU Commission’s own staff, and so the tribunal could only conclude that it had deliberately ignored the evidence to favour Ntwari.  

“What a sorry tale. There is evidence … that the recruitment process was flawed and compromised, the whole competition became a sham, Mr GFN [Ntwari] was appointed at the end of a flawed recruitment procedure which was unlawful, so is the decision appointing Mr GFN.” 

Faki’s decision to appoint Ntwari was “unlawful, null and void ab initio – it is reviewed and set aside”. It granted Weldesellasie damages of $91,052.64, equivalent to eight months of his current salary. 

The tribunal rejected Eno’s plea to be appointed as legal counsel in place of Ntwari, but awarded him $12,241.99, the equivalent of his current salary. 

It said Ntwari’s appointment was typical of the observations made in the internal report of the “R10” recruitment experts in 2022 that there was “interference with the recruitment and selection process at the AU Commission”. 

That report had said “an applicant can be appointed to an AU job regardless of his or her qualifications provided he/she has strong connections, limited compliance with the AU recruitment and selection policies, common recruitment without merits, unplanned positions created to recruit people favoured by influential people. In effective recruitment and selection system, the list goes on and on.” 

Daily Maverick asked the AU Commission for comment on the tribunal’s report but no response was forthcoming at the time of publication. DM