THE Arusha-based East African Court of Justice has dismissed a case filed by civil societies operating in Burundi, Tanzania, Uganda, Rwanda and Kenya against the government of Bujumbura, challenging last year’s general election results.
The First Instance Division of the East
African Court of Justice dismissed the case filed by the East African
Civil Society Organisations’ Forum (EASCOF) against the Attorney General
of the Republic of Burundi, the Independent National Electoral
Commission of Burundi (CENI) and the Secretary General of the East
African Community (EAC).
EASCOF had alleged that the decision of
the Constitutional Court of Burundi violated the letter and spirit of
the Arusha Peace and Reconciliation Agreement for Burundi of 2000.
The Arusha Accord, which was promulgated
into domestic law by the Parliament of Burundi, in particular Article
7(3) of Protocol 11 to the Arusha Accord, provides that the President of
Burundi shall be elected for a term of five years, renewable only once
and that no one may serve more than two presidential terms.
EASCOF further alleged that the
Constitution of Burundi states under Article 96 that the President of
the Republic is elected by universal suffrage for a mandate of five
years renewable once.
The applicant further alleges that by
reason of the aforementioned breach of the Arusha Accord and the
Constitution of Burundi, the decision of the Constitutional Court
equally violated Articles 5(3)(f), 6(d), 7(2), 8(1)(a) (c) and 8(5) of
the Treaty for the Establishment of the EAC.
The forum further claimed that the
decision of the ruling CNDD-FDD political party to nominate or put
forward President Nkurunzinza as a candidate for election to the Office
of the President of Burundi in 2015 violated the Arusha Accord
aforementioned and was therefore unlawful. The Applicant also alleges
that the CENI had failed to ensure compliance with the provisions of the
EAC Treaty.
The court in its decision declined the
application by the Applicant to review, revise the decision of the
Constitutional Court of the Republic of Burundi. It further added that
it has primacy in the interpretation of the Treaty but its mandate does
not extend to the interrogation of the decisions of other courts in a
judicial manner such as being asked by the Applicant of the
Constitutional Court in this matter.
EACJ said that the interrogation would
require the Court to exercise the appellate Jurisdiction over the said
decisions which jurisdiction the Court does not have.
The judges observed that the
independence of the Courts of Partner States was a paramount principle
of the rule of law as envisaged in Articles 6 (d) and 7 (2) of the
Treaty, adding that they could not therefore in upholding those
principles, interfere with that independence.
On the issue of the CNND-FDD to
nominating Mr Pierre Nkurunziza as its presidential candidate for
election, the Court decided that the issue was time barred.
That the decision was made on 25th
April, 2015 and therefore any challenge to it pursuant to Article 30 (2)
of the Treaty ought to have been filed before it on or before June 3,
2015. That since the Reference was filed on July 6, 2015; it clearly
shows that the matter was time barred.
The court further averred that it found
no evidence that the Secretary General had breached any of his duties in
the context of this Reference, adding that the powers and functions of
the Secretary General were clearly spelt out in Articles’ 67 and 71 of
the Treaty. The judges were therefore hesitant to hold the Secretary
General accountable for any action on his part.
The court reiterated the matter was
predicated upon a specific decision of the Constitutional Court of
Burundi issued on May 25, 2015 with attendant events. The court said
that there was no plausible reason why the Secretary General was
enjoined in this matter.
The court also observed that the second
respondent, CENI, was struck out of the reference that it has never
entered appearance, was also improperly enjoined in this matter.
They concluded that the Reference has
brought to the fore the continuing and emerging questions regarding the
rule of law in Partner States within the EAC. The Court, faithful to its
mandate, has found that the present case does not meet the muster of
the Treaty and the same has to fail.
The court closed the matter and ordered
each party to bear their own costs. The judgement was read by Justice
Isaac Lenaola, Deputy Principal Judge First Instance Division.
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