LE FORUM POUR LE RENFORCEMENT DE LA SOCIETE CIVILE (FORSC) & 4 OTHERS v. THE ATTORNEY GENERAL OF THE REPUBLIC OF BURUNDI & ANOTHER
| Case Number | REFERENCE NO. 12 OF 2016 |
| Summary | This Reference was brought under Articles 6(d), 7(2) and 127(3) and (4) of the Treaty for the Establishment of the East African Community (‘the Treaty’), challenging the banning the Applicants’ operational activities by the Government of Burundi, an act that allegedly constitutes a violation of Burundian law, the Treaty, as well as
pertinent international legal instruments.
The Applicants are five (5) non-governmental organisations (NGOs) incorporated under Presidential Decree No. 1/11 of 18/04/1992 that regulates the activities of non-profit associations in Burundi. The Applicants are all resident in Burundi although some of their officers reside outside that Partner State.
The First Respondent is the Attorney General of the Republic of Burundi, sued on behalf of the Government of Burundi as its Principal Legal Advisor. The Second Respondent is the Secretary General of the East African Community (EAC), sued on behalf of the EAC, being the Principal Executive Officer of the Community and the Head of its Secretariat.
In connection with the events in Burundi in the period from 2015 to 2016, the Burundi Prosecutor General froze the Applicants’ bank accounts in the context of prosecutions that arose out of the insurrections and abortive coup d’etat in that period.
Subsequently, the Minister of Home Affairs issued the Ministerial Order No 530/1597 of 23/11/2015, suspending the Applicants’ activities. On this matter the Applicants were not given the opportunity to make presentations, neither before the suspension nor after the suspension.
Around eleven months later, the Minister issued the Ministerial Order No 530/1922 of 19/10/2016, banning their activities. Again, they were not availed the opportunity to make their case before the banning order.
In the event, the Applicants made oral and written communication with Second Respondent for his intervention in the matter but in vain.
Aggrieved by the steps that culminated in the ban of their activities. as well as the Second Respondent’s failure to intervene. the Applicants lodged this Reference on 19th December 2016.
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| Respondent | THE ATTORNEY GENERAL OF THE REPUBLIC OF BURUNDI, THE SECRETARY GENERAL OF THE EAST AFRICAN COMMUNITY |
| Complainant | LE FORUM POUR LE RENFORCEMENT DE LA SOCIETE CIVILE (FORSC), ACTION DES CHRETIENS POU L'ABOLITION DE LA TORTURE (ACAT), ASSOCIATION BURUNDAISE POUR LA PROTECTION DES DROITS HUMAINS ET DES PERSONNES DETENUES (APRODH), FORUM POUR LA CONSCIENCE RT LE DEVELOPPEMENT (FOCODE), RESEAU DE CITOYENS PROBES (RCP) |
| Date filed | |
| Countries | Burundi |
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| Treaty Article | |
First Instance Judgment
| Verdict | First and foremost, we note that Articles 36, 37 and 38 the Presidential Decree N° 1/11 of 18th April 1992 fall under the theme 'SPECIAL PROVISIONS FOR ORGANIZATIONS OF FOREIGNER AND FOREIGN ORGANIZATION', which is self-explanatory. On the other hand, this Reference pertains to organisations registered in Burundi and licenced to operate in that country. Further, the Reference is premised on the actions of the Burundian Government
in relation to Applicant organisations that are Burundian civil-society entities. We therefore find Articles 36, 37 and 38 of the said Decree inapplicable to the matter before us. Consequently, we find no breach of those provisions of the Burundian law. We so hold.
We now revert to a consideration of Article 30 of the same Decree. Counsel for the applicants equated the reference in that Article to 'competent jurisdiction' to a 'court'. However, in the absence of an
authoritative definition equating "jurisdiction" to "court", we find ourselves bound to determine what is meant by that term in the Decree by taking the ordinary meaning thereof within the context of that legal provision. In our considered view, "jurisdiction" in that context denotes "authority" that is inclusive of, but not restricted to, a court. The second limb to that provision clearly designates the 'Minister in charge of interior' as the competent office to order safeguard measures in the event of an infringement by any
organisation of, among other things, public order. In the instant case, the First Respondent's affidavit evidence did attest to the Applicants having breached public order. This attestation was not rebutted
beyond the assertion in submissions that the First Respondent bore the burden of proof of that allegation.
Further, as we did observe earlier in this judgment, Ministerial Order N° 530/1922 of 19th October 2016 was issued by the Minister of Home Affairs under Article 30 of Presidential Decree No 1/11 of 18 April 1992 on the basis of the report of a Commission that had been set up to inquire into the causes of the "insurrection" in Burundi. We find the terms 'Minister of interior' and Minister of Home Affairs' to denote basically the same thing and, accordingly, find the said Minister of Home Affairs to represent competent authority within the precincts of Article 30 of the Decree. Consequently, we are satisfied that Ministerial Order N° 530/1922 of 19th October 2016 was issued in compliance with the Burundian law and, accordingly, does not infringe Articles 6(d), 7(2) and 127(3) and (4) of the Treaty. In the result, we would answer this issue in the negative.
The Applicants sought the following reliefs highlighted in paragraph 12 of this judgment, which we do not find it necessary to reproduce here. Since all the issues have been resolved in favour of the Respondents,
the substantive reliefs sought by the Applicants are not tenable. On the question of costs, Rule 111 (1) of this Court's Rules postulates that costs should follow the event unless the Court, for good reason,
decides otherwise. In the instant Reference, where the Applicants have not succeeded, ordinarily the costs thereof would be to the Respondents. However, the Applicants are NGOs whose mandate is essentially to provide necessary checks and balance to governments, and it was in the spirit of exercising this mandate that they filed the instant Reference. Consequently, we would depart from the general rule on costs and exercise our discretion to order each Party to bear its own costs.
In the final result, we hereby dismiss this Reference and order each party to bear its own costs.
It is so ordered. |
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| Date delivered | December 4, 2019 |
| Quorum | |
Appeal Judgment
| Verdict | |
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| Date delivered | |
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