THE UPRONA PARTY & 2 OTHERS v. THE ATTORNEY GENERAL OF THE REPUBLIC OF BURUNDI & THE SECRETARY GENERAL OF THE EAST AFRICAN COMMUNITY

1. The Notice of Motion dated 28th February 2014 is premised on the provisions of Article 39 of the Treaty for the Establishment of the East African Community (hereinafter “the Treaty”) and Rule 73 (1) and (2) of the East African Court of Justice Rules of Procedure ( hereinafter “the Rules”) It arises out of Reference No. 2 of 2014 wherein the Applicants challenge inter – alia the creation of a National Commission for Lands and other Assets (hereinafter “the Commission”) in the Republic of Burundi vide Act No. 1/31 which came into effect on 31st December 2013. One of the complaints made with regard thereto, is that the said Act in effect granted the Commission powers akin to those of the Judiciary which is a violation and a breach of Articles 6(d) and 7 (2) of the Treaty.
2. In the Notice of Motion aforesaid the Applicants now seek the following ORDERS:
“1.Pending the hearing and determination of the Reference, this Honourable Court be pleased to grant an interim Ex-Parte order to stay the enforcement of the Act No. 1/31 of 31st December 2013 in the Republic of Burundi.
2.An Order that pending hearing and determination of the matter Inter-Partes, this Honourable Court be pleased to grant an Interim Ex-Parte order that the National Commission of Lands and other assets is no more competent to entertain and determine the matters related to lands and other assets.
3.An Order that pending the hearing and determination of the matter Inter-Partes, this Honourable Court be pleased to grant an Interim Ex-Parte Order that from now up to the final judgment the Ordinary jurisdictions of the Republic of Burundi will be competent to entertain and determine all litigious matters related to lands and other assets.
4.The costs of this Application be met by the Respondent.
5.This Honourable Court be pleased to order such further or other orders as it deems fit and just in the circumstances.”
Case and Submission for the Applicants
3. The Applicants filed Affidavits in support sworn on February 2014 by one, Prof. Charles Nditije, legal representative of UPRONA Party, as well as separate Affidavits by Gabriel Sinarinzi and Onesime Kabayabaya, the 2nd and 3rd Applicants, respectively, sworn on the same date. A further Affidavit was also sworn by Onesime Kabayabaya on 16th April 2014.
4. Mr. Vital Nshimirimana, learned Counsel for the Applicants, also made elaborate submissions on their behalf and in a nutshell the case for the Applicants is as set out herebelow.
5. Firstly, from the grounds on the face of the Notice of Motion under consideration and from a casual reading of Reference No. 2 of 2014, the main issue in contention is whether the creation of the Commission is an affront to the general principle of the need for an independent and impartial judiciary in every democracy. The argument made by the Applicants in that regard, is that the said principle was not upheld in the establishment of the Commission. The reasons made for that argument are that its decisions are final, are immediately enforceable notwithstanding any appeal and in any event that any such appeal is to a non-existent Special court.