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Kenya Law / Blog / Case Summary: East African Court of Justice Does Not Have Jurisdiction To Revise, Review or Quash A Decision of The Constitutional Court of A Partner State.

East African Court of Justice Does Not Have Jurisdiction To Revise, Review or Quash A Decision of The Constitutional Court of A Partner State.

The East African Court of Justice Does Not Have Jurisdiction To Revise, Review or Quash A Decision of The Constitutional Court of A Partner State.

East African Civil Society Organization Forum v The Attorney General of the Republic of Burundi & 2 Others

In The East African Court Of Justice At Arusha First Instance Division

Reference N0.2 Of 2015

M.Mugenyi, PJ, I.Lenaola, DPJ & F.Jundu,J

September 29, 2016

Reported by Linda Awuor & Kakai Toili

Download the Decision

International Law – law of Treaty – East African Court of Justice – jurisdiction – jurisdiction to hear references by legal and natural persons – whether the Court had jurisdiction over the interpretation and application of the Constitution of the Republicof   Burundi   and   the     Arusha   Peace   and Reconciliation Agreement of Burundi, 2000. – Treaty for the Establishment of the East African Community, article 6(d), 7(2), 27(1) & 30(1)

International Law – law of Treaty – East African Court of Justice – jurisdiction – jurisdiction to hear references by legal and natural persons – whether the East African Court of Justice had jurisdiction to revise, review or quash a decision of the Constitutional Court of Burundi – Treaty for the Establishment of the East African Community, article 6(d), 7(2), 27(1) & 30(1)

International Law – law of Treaty – East African Court of Justice – jurisdiction – jurisdiction to hear references by legal and natural persons – whether an institution of a Partner State had legal personality to be sued   before the East African Court of Justice – Treaty for the Establishment of the East African Community -article 30(1)

International Law – law of Treaty – interpretation of the Treaty for the Establishment of the East African Community – East African Court of Justice -reference by Legal and Natural Persons – time limit for institution of references -whether the Reference was time-barred for having been filed past the two month limit under article 30(2) of the – Treaty for the Establishment of the East African Community, article 30(2)

Brief Facts:

On August 28, 2000, the Arusha Peace and Reconciliation Agreement (Arusha Agreement) under the facilitation of the late President Nelson Mandela, was executed between the Government of Burundi as the principal party and all the principal political parties in Burundi as the other parties. On December 1, 2000, the Parliament of Burundi (Parliament) domesticated it as ordinary Law. No.1/017 of December 1,   2000. On March 1, 2005, the people of Burundi adopted a new Constitution and in the preamble thereto, they confirmed their faith in the Arusha Agreement.

On March 2, 2014, Parliament rejected a proposal to amend the Constitution of Burundi to enable the incumbent President, Mr. Pierre Nkurunziza to vie for a third term as President of Burundi. On April 25, 2015, the political party, Conseil National Pour la Défense de la Démocratie–Forces pour la Défense de la Démocratie(CNDD–FDD) announced the nomination of Mr. Pierre Nkurunziza as its candidate for election to the office of President of Burundi. On April 28, 2015, 14 senators of the Burundi Senate filed a motion dated April 17, 2015 in the Constitutional Court of Burundi seeking an interpretation of articles 96 and 302 of the Constitution of Burundi on the election of a President for Burundi. A decision was delivered on May 5, 2015 and determined that Mr. Pierre Nkurunziza was eligible to run for the Presidency.

On the June 8, 2015, the Chairman of the 2nd Respondent, Commission Electorale Nationale Independante( CENI), announced new dates for the general elections but on June 9, 2015, President Nkurunziza announced different dates for the elections thereafter public demonstrations started in Burundi and many leaders and other Burundians fled the country while many others were killed during the violent and chaotic demonstrations.

As a result of the decision to have allowed Mr. Pierre Nkurunziza to vie for the position of President of Burundi, the Appellant moved to the Court on the grounds that the said decision breached the Treaty and the Arusha agreement.

Issues:

i)  Whether the Court had jurisdiction over the interpretation and application of the Constitution of the Republic     of   Burundi   and   the     Arusha   Peace   and Reconciliation Agreement of Burundi, 2000.

ii)  Whether the East African Court of Justice had jurisdiction to revise, review or quash a decision of the Constitutional Court of Burundi.

iii) Whether an institution of a Partner State had legal personality to be sued   before the East African Court of Justice under article 30(1) of the EAC Treaty.

iv) Whether the Reference was time-barred for having been filed past the two month limit under article 30(2) of the Treaty.

Relevant Provisions of the Law:

Treaty for the Establishment of the East African Community (As amended on 14th December, 2006 and 20th August, 2007)          

Article 5 - Objectives of the Community  

3. For purposes set out in paragraph 1 of this Article and a s subsequently provided in particular provisions of this Treaty, the Community shall ensure:

(f) the promotion of peace, security, and stability within, and good neighbourliness among, the Partner States;

Article 6 – Fundamental Principles of the Community

(d) good governance including adherence to the principles of democracy, the rule of law, account ability, transparency, social justice, equal opportunities, gender equality, a s well a s the recognition, promotion and protection of human and people’s rights in accordance with the provisions of the African Charter on Human and Peoples’ Rights;

Article 7 – Operational Principles of the Community        

2. The Partner States undertake to abide by the principles of good governance, including adherence to the principles of democracy, the rule of law, social justice and the maintenance of universally accepted standards of human rights.        

Article 8 – General Undertaking as to Implementation

1. The Partner States shall:

(a) plan and direct their policies and resources with a view to creating conditions favourable for the development and achievement of the objectives of the Community and the implementation of the provisions of this Treaty;

(c) abstain from any measures likely to jeopardise the achievement of those objectives or the implementation of the provisions of this Treaty.

Article 9 – Establishment of the Organs and Institutions of the Community

3. Upon the entry into force of this Treaty, the East African Development Bank established by the Treaty Amending and Re-enacting the Charter of the East African Development Bank, 1980 and the Lake Victoria Fisheries Organisation established by the Convention (Final l Act ) for the Establishment of the Lake Victoria Fisheries Organisation, 1994 and surviving institutions of the former East African Community shall be deemed to be institutions of the Community and shall be designated and function as such.

Article 23 – Role of the Court

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.

Article 27 – Jurisdiction of the Court

1. The Court t 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.

Article 30 – Reference by Legal and Natural Persons

1. Subject to the provisions of Article 27 of this Treaty, any per son who is resident in a Partner State may refer for determination by the Court, the legality of any Act , regulation, directive, decision or action of a Partner State or an institution of the Community on the grounds that such Act , regulation, directive, decision or act ion is unlawful or is an infringement of the provisions of this Treaty.

2. The proceedings provided for in this Article shall be instituted within two months of the enactment, publication, directive, decision or action complained of, or in the absence thereof, of the day in which it came to the knowledge of the complainant, as the case may be;

3. The Court shall have no jurisdiction under this Article where an Act , regulation, directive, decision or action has been reserved under this Treaty to an institution of a Partner State.

Article 67 – Secretary General

1. The Secretary General shall be appointed by the Summit upon nomination by the relevant Head of State under the principle of rotation.

2. Upon the appointment of the Secretary Genera l the Partner St ate from which he or she is appointed shall forfeit the post of Deputy Secretary General.

3. The Secretary Genera l shall be the principal executive officer of the Community and shall:

(a)  be the head of the Secretariat;

(b)  be the Accounting Officer of the Community;

(c)  be the Secretary of the Summit; and

(d)  carry out such other duties a s a re confer red upon him by this Treaty or by the Council from time to time.

4. The Secretary General shall serve a fixed five year term.

5. The terms and conditions of service of the Secretary Genera l shall be determined by the Council and approved by the Summit.

Article 71 – Functions of the Secretariat

1. The Secretariat shall be responsible for:

(a)  initiating, receiving and submitting recommendations to the Council, and forwarding of Bills to the Assembly through the Coordination Committee;

(b)  the initiation of studies and research related to, and the implementation of, programmes for the most appropriate, expeditious and efficient ways of achieving the objectives of the Community;

(c)  the strategic planning, management and monitoring of programmes for the development of the Community;

(d)  the undertaking either on its own initiative or otherwise, of such investigations, collect ion of information, or verification of matters relating to any matter affecting the Community that appears to it to merit examination;

(e)  the co-ordination and harmonisation of the policies and strategies relating to the development of the Community through the Coordination Committee;

(f)     the genera l promotion and dissemination of information on the Community to the stakeholder s, the genera l public and the international community;

(g)  the submission of reports on the activities of the Community to the Council through the Co-ordination Committee;

(h)   the genera l administration and financial management of the Community;

(i)      the mobilisation of funds from development partners and other sources for the implementation of projects of the Community;

(j)      subject to the provisions of this Treaty, the submission of the budget of the Community to the Council for its consideration;

(k)   proposing draft agenda for the meetings of the organs of the Community other than the Court and the Assembly;

(l)      the implementation of the decisions of the Summit and the Council;

(m)the organisation and the keeping of records of meetings of the institutions of the Community other than those of the Court and the Assembly;

(n)   the custody of the property of the Community;

(o)  the establishment of practical working relations with the Court and the Assembly; and

(p)  such other matters that may be provided for under this Treaty.

2. For the purposes of paragraph 1 of this Article, the Secretary General shall where he or she thinks it appropriate, act on behalf of the Secretariat.

3. The Deputy Secretaries Genera l shall assist the Secretary Genera l in the discharge of his or her functions.

4. The Counsel to the Community shall be the principal legal adviser to the Community in connect ion with matters pertaining to this Treaty and the Community and he or she shall by virtue of this paragraph be entitled to appear in the Courts of the Partner States in respect of matters pertaining to the Community and this Treaty.

Held:

  1. A resolution of the question of time bar had to begin from a re-look at the Reference. There was no difficulty in finding that the cause of action was the decision of the Constitutional Court issued on May 5, 2015 and the two months envisaged by article 30(2) on reference by legal and natural persons would have ended on July 4, 2015 which fell on a Saturday. Applying Rule 30(1) it followed that the first working day after July 4, 2015 was July 6, 2015 and that was the day the Reference was filed. The Reference was filed within time.
  2. The decision of the Conseil National Pour la Défense de la Démocratie–Forces pour la Défense de la Démocratie (CNDD- FDD) to nominate or put forward the President of Burundi as a candidate for election to the office of the Presidency in the Republic of Burundi was made on April 25, 2015 and therefore any challenge to it pursuant to Article 30(2) of the Treaty ought to have been filed on or before June 3, 2015.   Since the Reference was filed on July 6, 2015, it followed that the Reference was clearly time-barred.
  3. Jurisdiction was defined in Setanda Ssebalu vs. Secretary General of the East African Community, EACJ Ref. No.1 of 2010 as the authority which a court had to determine matters that were litigated before it or to take the cognizance of matters presented in a formal way for its decisions. The limits of that authority were imposed by the Statute, by the charter or commission under which the Court was constituted.
  4. Taking into account the definition of jurisdiction and the provisions of the Treaty that granted the express jurisdiction to interprete the Treaty, the issue of whether the decision of the Constitutional Court in determining that Mr. Pierre Nkurunziza could run for the position of President of Burundi was inter alia a violation of articles 5(3)(f), 6(d),7(2), 8(1)(a) and 8(c ) of the Treaty was the valid issue to have been determined without doing so outside the lawful mandate. The merit of such an issue was not a question of jurisdiction.
  5. The Arusha Peace and Reconciliation Agreement (Agreement) became domestic law in Burundi and was known as Law No. 1/07 promulgated on December 1, 2000. It was therefore no longer an Agreement between the named parties to it. When whether particular actions of a Partner State were unlawful and contravened the principle of the rule of Law under the Treaty were considered, the Court had jurisdiction and indeed a duty to have considered the internal laws of the Partner States and apply its own appreciation thereof to the provisions of the Treaty.   The Court did not and should not have abided to the determination of the import of such internal law by the National Courts.
  6. Jurisprudence pointed to the fact that where a Partner State enacted   laws that contravened,   in their normative content or effect, the Treaty, then such laws could have been lawfully interrogated within the mandate. That position could only by extension have meant that where a Partner State was said to have breached its own laws and obligations, such conduct, if found to have been true, would certainly have been a breach of the principles of the rule of law as enshrined in article 6(d) on fundamental principles of the community and article 7(2) on operational principles of the community. The mandate of the Court was granted by article 23(1) on the role of the Court, article 27(1) on jurisdiction of the Court and article 30(2) of the Treaty on reference by legal and natural persons and no more.
  7. There was jurisdiction to interpret the Constitution of Burundi and the Agreement and if any action purportedly undertaken in furtherance of the said Constitution and Agreement were in any way found to have amounted to an infringement of or violation of the Treaty.
  8. There was primacy in the interpretation of the Treaty but that mandate did not extend to the interrogation of decisions of other courts in a judicial   manner. An interrogation of the reasons, ratio decidendi and contents of such decisions would have necessarily required that an appellate jurisdiction be execised over the decisions which jurisdiction the court did not have. The independence of the Courts of Partner States was a paramount principle of the rule of law as was envisaged in articles 6(d) on fundamental principles of the community and 7(2) of the Treaty on operational principles of the community and in upholding those principles that independence could not be interfered with.
  9. There was no jurisdiction to reopen decisions of courts of Partner States and decide whether such decisions were or were not in line with either the Constitution of Burundi or the Agreement or even the Treaty.
  10. There was no question regarding due process before the Constitutional Court of Burundi but the correctness of the decision to let Mr. Pierre Nkurunziza run for the position of President of Burundi in the context of the interpretation of the Constitution   of   the   Republic   of   Burundi   and   the   Arusha Agreement. Only by undertaking an interrogation of that decision as to its correctness could it be revised, reviewed and quashed. Such remedies were available only upon a review or appeal against the said decision and not whether it was made in violation of the principles of the rule of law.
  11. Only Partner States and institutions of the East African Community could be sued for violations of the Treaty. The term Partner State needed no explanations but Institutions of the East Africa Community (EAC) were defined in article 9(3) of the Treaty on the establishment of the organs and institutions of the Community.
  12. There could not be any contestation of the fact that the 2nd Respondent was an institution of a Partner State namely the Republic of Burundi and not of EAC. It could not be said that merely because it was such an Institution of a Partner State then it could have been equated to the Republic of Burundi, a Partner State. Where an entity is created by a Partner State and not the Summit of the EAC, such an entity, whatever its functions, was not a proper party to have been sued.
  13. Joinder of a party to any litigation was a substantive question not to have been treated lightly or flippantly. The 2nd Respondent, notwithstanding that it had never entered appearance, was improperly enjoined.
  14. Whereas the Secretary General’s powers and functions were clearly spelt out in articles 67 on counsel to the Community and article 71 of the Treaty on functions of the secretariat, there was no evidence that he had breached any of his duties. The  Reference was predicated   upon a specific decision of the Constitutional Court of Burundi issued on May 5, 2015 with attendant events. The Secretary General had no role in that matter. There was no plausible reason why the 3rd  Respondent was enjoined to the Reference.

Reference dismissed, each party to bear its own costs

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