East
African Court of Justice Arusha, 15 August 2014: The First Instance
Division today delivered three rulings in the Application matters, one
allowed and other two dismissed.
The First Ruling of the Court
The
First Instance Division allowed Civil Society groups and Non-
Governmental Organizations operating with and without the borders of the
Republic of Burundi to participate in the case filed by Burundi
Journalists Association as amicus curiae (Friends of the Court) pursuant
to Rule 36 of the East African Court of Justice Rules of procedure.
Rule
36 provides that “an application for leave to intervene under Article40
of the Treaty and an application for leave to appear as amicus curiae
shall be by notice of motion”.
The
main case challenges inter-alia Law which governs the Press Sector in
Burundi which was amended and in their case that numerous provisions of
that law are contrary to the freedoms of expression and of the press
within the meaning of Article 6 (d) and 7 (2) of the Treaty for the
Establishment of the East African Community.
Therefore
the a amicus curiae claim was that, they all have a genuine commitment
to promoting respect for and observance of the freedoms of expression
and of the press and in that regard they have acquired valuable
expertise in that area of law. They seek to be enjoined as amicus curiae
to assist the Court on two issues;
Identifying
and explaining the types of regulation of the media that constitute an
infringement on press freedom, offering reasons why the freedoms of
speech and of the press are essential components of both the fundamental
principles of the EAC contained in Articles mentioned above.
Court
in its ruling said that looking at the case filed and noting the issues
in contest, it would be in the wider interests of justice that we admit
the Applicants as amicus curiae and their role shall be limited to the
filing of only one set of submissions within the timeframe to be
determined by this Court.
Further
that, the amicus is a friend of the Court and the Court can only take
what it considers relevant and non-partisan from the amicus and the
ultimate control over what the amicus can do is the Court itself.
The
Civil society groups and NGOs allowed to participate in the matter
include; Forum pour Reinforcement de la Societe’ civile (FORSC), the
international Press Conference Institute, Maison de la Presse du
Burundi, Forum pour la conscience et le Development (FOCODE), PEN Kenya,
Pan African Lawyers Union (PALU), PEN international, Reporters sans
fronteres and the World Association of Newspapers and News Publishers.
2nd Ruling
The
Court also dismissed an Application filed by Burundi citizens and a
political party by the name (UPRONA Party), and Mr. Gabriel Sinirinzi,
and Mr. Onesime Kabayabaya (Applicants) against the Attorney General of
the Republic of Burundi and the Secretary General of the East African
Community (Respondents). The Applicants were challenging the inter-alia
the creation of the National Commission for Lands and other assets in
the Republic of Burundi vide Act 1/31 which came into effect on 31st
December 2013.
The
complaint 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
Article 6 (d) and 7 (2) of the EAC Treaty and therefore ask Court an
interim Ex-Parte order (temporary) to stay the enforcement of the Act in
Burundi.
The
Court in its ruling said that, the land is an emotive issue in the East
African region and Courts generally bear that fact in mind when settling
disputes tied to land, but as regards the Application before the Court,
the Judges did not see merit in it and they dismissed it as prayed by
the Respondents. The Court added that, it finds tremendous difficulty in
granting the order at this stage because the Commission is still a
statutory institution under the laws if Burundi, despite displeasure
expressed by the Applicants.
Again
the Court declined to nullify the Commission at this stage because it
might affect the final decision of the matter by following a perpetuated
chaotic procedural and legal situation. The Court added that the
Commission is functioning and has been for some years, it is best
therefore that the situation as obtaining today should to obtain and the
Court will render itself fully and finally both the Act and its
processes and including the work of the Commission once the main case
has been heard and determined on its merits and is the best cause of
action in the wider interests of justice.
3rd Ruling
The
First Instance Division also dismissed another Application filed by the
East African Law Society ( (EALS) Applicant) against the Attorney
General Republic of Burundi and the Secretary General East African
Community (Respondents). The Applicants were seeking among others a
declaration from Court that the decision and order of the Court of
Appeal of Burundi of 28th January 2014; and travel ban imposed to Mr.
Isidore
Rufyikiri by the Prosecutor of the Anti- Corruption Court of Burundi
infringes upon and are in contravention of Articles 6 (d) and 7 (1) and
(2) of the Treaty and therefore asked Court to grant order to stay the
decision of the Court of Appeal pending hearing and determination of the
main case.
The
Court in its Ruling said that, the Applicant has to wait for the main
Reference since it is there that arguments regarding freedom of
movement, right of practice, right of association that were prematurely
presented in this Application will be properly addressed.
That
for the Court to delve into these issues at this stage would be kin to
pre-judging the merits or demerits of the main case and the politely
declined the invitation to do so. The Court further said that the
prayers in this Application are identical to those in the main case and
that it is also clear that the orders sought are final in nature and
cannot be issued at this interlocutory (middle) stage and hence it was
dismissed. Mr. Rufyikiri was the President of the Burundi Bar
Association.
Parties
present in Court were Mr. Donald Deya representing the Applicants in
the 1st and 3rd Applications, Dr. Anthony Kafumbe and Hon. Wilbert
Kaahwa representing the Secretary General in the 2nd and 3rd
Applications respectively and Mr. Hamphrey Mtuy representing EALS
(Applicant) in the 2nd Application.
The Court will proceed with sessions of the Appellate Division next week.
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 EACJ sub-registries are available in the Partner
States at the premises of the respective National Courts.
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