APPELLATE DIVISION HEARS AN APPEAL CHALLENGING A DECISION OF THE FIRST INSTANCE DIVISION ON BURUNDI PRESIDENTIAL ELECTION OF 2015

APPELLATE DIVISION HEARS AN APPEAL CHALLENGING A DECISION OF THE FIRST INSTANCE DIVISION ON BURUNDI PRESIDENTIAL ELECTION OF 2015

East African Court of Justice Arusha, 6th February, 2018: The EACJ Appellate Division heard an appeal filed by the East African Civil Society Organisations’ Forum against the Attorney General of Burundi and the Secretary General of the EAC challenging part of a decision of the First Instance Division delivered on 29th September 2016.

In the challenged judgment, the First Instance Division declined an invitation to interrogate a decision of the Constitutional Court of Burundi on eligibility of Mr Pierre Nkurunziza vying for Burundian Presidency for another term. The Court held among other things that, its primacy in the interpretation of the treaty does not extend to the interrogation of decisions of other Courts. That inquiring into decisions of other Courts would require the EACJ to exercise an appellate jurisdiction which it does not have. Further ruled that, the independence of national courts is a paramount principle of the rule of law in the Treaty and the Court could not in upholding those principles interfere with that independence. With the foregoing, the Court ruled that it could not reopen the decision of the Constitutional Court of Burundi, to determine if the said decision was in line with either the Constitution of the Republic of Burundi, the Arusha Accord or even the Treaty.
The Appellant on appeal allege that the First Instance Division erred in law and urged the Appellate Division to reverse the decision of the First Instance Division.
Mr. Donald Deya for the Appellant submitted that, the Court erred in law by disavowing the jurisdiction to review and/or quash the Judgment of the Constitutional Court of Burundi. According to Counsel, the Treaty under Articles 23 and 27 bestows upon this Court the jurisdiction to review any decision of any Court, organ or institution of a Partner State to ensure compliance with the Treaty. Counsel argued that, in international law, an international court has jurisdiction to determine whether or not a decision of any organ of a State Party, including a judicial decision is in accordance with a state international obligations. Further, no exception is provided in international law for decisions made by judicial organs of a State Party including decisions of Supreme Courts. Otherwise, a State Party would be allowed to infringe its international obligations through its judicial decisions which is unacceptable.
Counsel contended further, that international law is very clear that an international court will apply its law to review the conduct/ action of any organ of a State Party. In so doing, the action of international court cannot be considered as an appeal or review of the decision of the municipal court as they would be applying different laws (international treaty law verse municipal law).
Counsel for the Appellant also submitted that the EAC Treaty does not distinguish between challenging the correctness of a decision and the due process followed to arrive at that decision. He added that the EACJ has jurisdiction to reopen decisions of national courts to decide whether or not such decisions are in line with the Treaty. Counsel concluded by arguing that the First Instance Division erred in law by failing to acknowledge that there were compelling reasons which motivated the Appellant seek to join the Secretary General of the EAC as a party to the proceeding.
Mr Nestor Kayobera, counsel for the 1st Respondent (Attorney General of Burundi), submitted that, the Court made a reasoned judgment and had not erred in law nor had they committed any procedural irregularities. Further argued, the Appellant could not pass the standard established under Article 35 A of the Treaty read together with Rule 77 of this Court Rules of Procedure, 2013. Finally stated that, the Court did not error in law by declaring there was no cause of action against the Secretary General.
Steven Agaba for the 3rd Respondent (Secretary General of the EAC), submitted that the Court did not commit any errors of law nor procedural irregularities as alleged by the Appellant. It was his submission that the Appellant did not comprehend the reasoning of the Court in the matter. Further, the Court correctly held that such remedies as to revise, review and quash the said decision of another court are only available upon appeal or review of the said decision. Counsel contended that the Appellant has failed to show any Act, regulation, directive, decision or action that is unlawful or an infringement of the Treaty attributed to the 3rd Respondent.
The Respondents prayed for dismissal of the Appeal with cost. Judgment will be delivered on notice.
The matter came before the bench of the Appellate Division that includes Honourable Justices Dr. Emmanuel Ugirashebuja (Judge President); Justice Liboire Nkurunziza, (Vice President); Justice Edward Rutakangwa; Justice Aaron Ringera and Justice Geoffrey Kiryabwire.
Notes to Editors:
Article 23 of the Treaty:
1. The Court shall be a judicial body which shall ensure the adherence to law in the interpretation and application of and compliance with this Treaty.
2. The Court shall consist of a First Instance Division and an Appellate Division.
3. The First Instance Division shall have jurisdiction to hear and determine, at first instance, subject to a right of appeal to the Appellate Division under Article 35A, any matter before the Court in accordance with this Treaty.

Article 27 of the Treaty:
1. The Court shall initially have jurisdiction over the interpretation and application of this Treaty: Provided that the Court’s jurisdiction to interpret under this paragraph shall not include the application of any such interpretation to jurisdiction conferred by the Treaty on organs of Partner States.
2. The Court shall have such other original, appellate, human rights and other jurisdiction as will be determined by the Council at a suitable subsequent date. To this end, the Partner States shall conclude a protocol to operationalise the extended jurisdiction.

Article 35A of the Treaty:
1. An appeal from the judgment or any order of the First Instance Division of the Court shall lie to the Appellate Division on-
(a) points of law;
(b) grounds of lack of jurisdiction; or
(c) procedural irregularity.

Rule 77 of the Court Rules of Procedure, 2013:
An appeal from the judgment or any order of the First Appeals Instance Division shall lie to the Appellate Division on:
(a) points of law;
(b) grounds of lack of jurisdiction; or
(c) procedural irregularity.

About the EACJ:
The East African Court of Justice (EACJ or ‘the Court’), is one of the organs of the East African Community established under Article 9 of the Treaty for the Establishment of the East African Community. Established in November 2001, the Court’s major responsibility is to ensure the adherence to law in the interpretation and application of and compliance with the EAC Treaty.

Arusha is the temporary seat of the Court until the Summit determines its permanent seat. The High Courts of the Partner States serve as sub-registries.
For more information please contact:
Yufnalis Okubo, Registrar, East African Court of Justice. Tel: 255-27-2162149
Email Okubo@eachq.org
East African Court of Justice Arusha, Tanzania http://www.eacj.org

Comments are closed.