Case Number APPEAL NO. 4 OF 2016

On 5th May 2015, the Constitutional Court of Burundi interpreted Articles 96 and 302 of the Constitution of Burundi and held that Mr Pierre Nkurunziza was eligible to run in elections in the Republic of Burundi. Subsequently, the second Respondent announced new dates for the general elections but on the 9th June, 2015, Mr Nkurunziza announced different dates for the said elections. Thereafter there were public and the Appellant alleges that many leaders and Burundians fled the country and some were killed during the violent demonstrations

In Reference 2 of 2015, the Appellant sought inter alia; a declaration that the decision of the Constitutional Court violated the Arusha Peace and Reconciliation Agreement for Burundi, 2000, the Constitution of Burundi and the EAC Treaty; and an order directing the 3rd Respondent to constitute and give immediate effect to the said judgment and to advise the EAC Summit of Heads of State and Government on whether the Republic of Burundi should be suspended or expelled from the EAC under Articles 29, 67, 71, 143, 146 and 147 of the Treaty.

The Trial Court dismissed the Reference finding that: while it had jurisdiction to interpret the Constitution of Burundi and the Arusha Agreement and determine whether any action taken amounted to an infringement of the Treaty, its mandate did not extend to the interrogation of decisions of other courts in a judicial manner.
On Appeal the Appellant averred that the Trial Court: erred in law by disavowing itself of jurisdiction, bestowed by the Treaty, to review any decision of any organ or institution of a Partner State on the basis that it is unlawful or a violation of the Treaty based on the theory of state unity and undifferentiated attribution; and that the Court committed procedural irregularities by incorrectly reframing the Appellant’s Application to revise, review or quash the decision of the Constitutional Court of Burundi; and in declaring that there was no cause of action against the 3rd Respondent.

Date filed
CountriesBurundi , East African Community
KeywordCause of action , Jurisdiction , State responsibility
Treaty ArticleArticle 1 , Article 35 A , Article 5 , Article 6 , Article 67 , Article 68 , Article 7 , Article 8 , Articles of EAC Treaty

First Instance Judgment

VerdictIn the final result, the Reference is hereby dismissed. Each Party to bear its own costs. It is so ordered.
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Date deliveredDecember 3, 2019

Appeal Judgment

  1. The right of appeal is restricted to the scope provided for under Article 35A of the EAC Treaty and the burden of proof falls on the party alleging the error who must advance arguments in support of the contention and explain how the error invalidates the decision. The Appellate Division does not undertake a hearing de novo of the questions of fact and law examined by the Trial Court.
  2. Pursuant to the EAC Treaty, Partner States have undertaken to abide by and carry out the obligations as provided for therein. At international law, this creates state responsibility to each and every Partner State that is attributable to them. Partner States are bound to follow the law created by the Treaty and have it applied by their courts. Even where a superior court of a Partner State has made a final determination on the
constitutionality of a domestic law, which is not appealable to a higher court, such a determination would not stop EACJ from interrogating whether that domestic law violated the Treaty. EACJ can reach a different conclusion from that of the superior domestic court as was held in the Burundi Journalist Union case.
  1. The case before the Trial Court was not a further appeal from the decision of the Constitutional Court of Burundi. It was a issue on Burundi’s international responsibility in international law and the Treaty attributable to Burundi due to an action of one of its organs, namely the Constitutional Court of Burundi. State liability for domestic courts at international law covers both acts and omissions. The Trial Court had a duty to determine this international responsibility and in so doing so to consider the internal laws of the Partner State and to apply its own appreciation thereof to the provisions of the Treaty. By not carrying out this duty, the Trial Court disavowed itself of the jurisdiction to determine whether or not the impugned decision of the Constitutional Court of Burundi breached the Treaty.
  2. The interrogation of a decision of a domestic court, to determine the international responsibility of a State, goes beyond having regard to the due process before that said domestic court and extends to every act or omission it may make. In exercising its duty, the Trial Court is not expected to review the impugned decision looking for new evidence or some mistake, fraud or error apparent on the face of the record. The Trial Court is to sift through the impugned decision and evaluate it critically with a view of testing its compliance with the Treaty and then make a determination. The Trial Court does not quash the impugned decision as if it were a court exercising judicial review powers, but rather makes declarations as to the decision’s compliance with the EAC Treaty. The Trial Court erred or misdirected itself in its holding and in not proceeding to hear the Reference on its merit.
  3. While the Trial Court correctly found that the 3rd Respondent can and should be found accountable for failure to discharge his duties under the Treaty, in the instant case there was no such evidence. Therefore, there was no cause of action against the 3rd Respondent, he is struck out as a party to this case.
  4. A declaration of violation, or infringement of, or inconsistency of any action of a Member State with a Treaty violation is not a discretionary remedy. It is a command of the Treaty. However, remedies are only to be given to the extent possible and EACJ has wide discretion in granting appropriate remedies and making orders as may be necessary for the ends of justice as was held in Henry Kyarimpa case. Since Article 35A of the Treaty does not grant this Court the power to hear the merits of a case, Reference No. 2 of 2015 is reverted to the Trial Court for hearing on its merits.
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Date deliveredMay 24, 2018