East African Court of Justice, 4th June, 2021:  The Appellate Division of the East African Court of Justice heard an appeal by the East African Civil Society Organizations’ Forum (EACSOF) challenging the legality of the Late President Pierre Nkurunziza’s participation in the 2015 Burundi presidential election.  

EACSOF was challenging a December 2015 judgment in which the First Instance Division of the Court dismissed its initial petition challenging President Nkurunziza’s decision to participate in the election and ordered each party to bear its own costs.  

The counsel representing EACSOF, Ms. Esther Mnaro, submitted that the 1st Instance Division erred in law in finding that the impugned decision of the Constitutional Court of Burundi was not in violation of Articles 5(3)(f); 6(d); 7(2); 8(1)(a) & (c) and 8(5) of the EAC Treaty,  

Ms. Mnaro told the court that the 1st Instance Division also erred in law in finding that the impugned decision of the Constitutional Court of firstly partially stripping themselves of jurisdiction and limiting their jurisdiction to a supervisory role was not in violation of the Treaty.  

Counsel Mnaro also averred that, under Article 23 of the Treaty read together with Article 27, the Court was vested with the Jurisdiction to interpret acts and decisions of a Partner State to make a determination on whether or not they are in line with the Treaty.  

In addition, Ms. Mnaro contended that the Honourable Judges of the 1st Instance Division erred in law and fact in finding that the impugned decision of the Constitutional Court of Burundi in Case Number RCCB 303 of 5/5/2015 was not in violation of the Treaty and by excusing the acts of the impugned decision and by holding that it was passed with proper application of the Constitution and the Arusha Accord.  

Ms. Mnaro held that the Arusha Accords and the Constitution did not envisage creating a third term for any president. She asserted that the apex court’s decision was an outrageous one depicting willful dereliction of achievements   

The Attorney General of Burundi represented by Counsel Diomede Vyizigiro, on his part opposed the submissions of the Appellant and asked Court to uphold the decision of the First Instance Division which dismissed the Appeal with costs to the Respondent. The Judgment will be delivered on notice. 

Diomede argued that the matter before the court which endorsed the decision of the Constitutional Court of Burundi which endorsed the legality of President Nkurunziza’s participation as a candidate in the presidential.  

The AG said that the President’s did not in any way violate the Arusha Peace and Reconciliation Agreement of Burundi, 2000, the Constitution of Burundi and the EAC Treaty. 

Hearing the EACSOF appeal were Justice Geoffrey Kiryabwire, Lady Justice Sauda Mjasiri and Lady Justice Anita Mugeni.  

The session was held virtually with the bench sitting physically in court and lawyers making submissions from their respective locations.