First Counsellor and Head of Burundi Liaison Office Arusha, Mr. Amos Gerson Ndimurwanko (R) with the Representative of the Attorney General of the Republic of Burundi Mr. Nestror Kayobera (L)
East African Court of Justice Arusha, 11 February 2015: The First Instance Division heard a matter filed by the East African Law Society (Applicant) against the Attorney General of the Republic of Burundi (1st Respondent) and the Secretary General of the East African Community (2nd respondent). The Applicant alleges that the acts of the agents and institutions of the government of Burundi in prosecuting Mr. Rufyikiri before the anti-corruption Court and disbarring him from travelling outside Burundi were in breach of the principles of the Community on rule of law and good governance under Article 6 (d) and 7 (2) of the Treaty for the establishment of the East African Community.
The matter follows the decision from the Court of Appeal of Burundi made on 28th January 2014, in which, Mr Isidore Rufyikiri was prosecuted for embezzlement of funds and subsequently disbarred from the Table of Barristers (advocates) of the Court of Appeal of Bujumbura and a travel ban imposed on him by the Prosecutor of the Anti-Corruption Court of the Republic of Burundi.
Francis Gimara for the Applicant submitted that both the prosecution and disbarment of Mr. Isidore Rufyikiri had not followed the required due process. The Government of Burundi had failed to adduce evidence to prove the alleged acts of corruption done by Mr. Rufyikiri and that the travel ban imposed on Mr. Rufyikiri was not necessary because he did not show any intension to flee outside the Country as a mechanism of defeating justice. He further stated that even if that was the case, such powers of prohibition to travel outside the Country were not exercised properly. Moreover, he submitted that, Mr. Rufyikiri properly acted in his capacity as the head of the Burundi Bar Association to address the press conferences on issues of state of governance, democracy and abuse of human rights in Burundi but the government took measures to discipline him.
Mr. Gimara also submitted that the Secretary General (2nd Respondent) had prior knowledge of the said acts but did not take appropriate action under Article 29(1) and 71 (1) (d) of the Treaty. He further told Court that the Secretary General failed to regularly monitor the observance of the Treaty obligation by the government of Burundi so as to advise the Council and the Summit over measures to effect compliance by Burundi. He further stated that, the Court should consistently remind the Secretary General that he has a duty to act on his own and not to wait for litigants to come to this Court. He stated that, the Secretary General must exercise pro activeness in as far as bring Partner States into account regarding their actions especially actions violating the Treaty provisions. He prayed that the Court awards the prayers sought against both Respondents.
Mr. Kayobera Nestor, Counsel for the Attorney General of the Republic of Burundi (1st first respondent), in his submissions, urged that measures taken to prohibit Mr. Rufyikiri from travelling outside Burundi were in accordance with Burundi Law and does not violate the provisions of the Treaty. He further pointed out that such measures were removed on 8th July 2014 and Mr. Rufyikiri can now enjoy travelling outside the Country.
Mr. Kayobera also submitted that evidence had been adduced to prove mismanagement and embezzlement of funds from the Centre for Arbitration in Conciliation in Burundi (CEBAC), the institution which Mr. Isidore Rufyikiri presided. He further pointed out that the decision of the Court of Appeal to disbar Mr. Rufyikiri from the Table of Barristers was based on the statements made in the letter Mr. Rufyikiri addressed to the governor of the province of Bubanza, which the Court was of the opinion that it was abusive of the freedom of expression and that even advocates must abide by the law and not abuse of their rights and freedoms.
Disciplinary measures had to be taken against Mr. Rufyikiri and that is what the Court of Appeal of Burundi did by disbarring him, since the disciplinary body of advocates had not taken any sanctions against Mr. Rufyikiri following the above mentioned letter. He asked Court to dismiss the matter and grant costs to both Respondents.
Mr. Stephen Agaba, Counsel for the Secretary General (2nd respondent) in his submissions said that the Secretary General of the East African Community had instituted actions within his powers to intervene in the situation but that Burundi still is a sovereign state and that interference with its internal affairs would have amounted to the breach of the principles of sovereignty. Nevertheless, he stated that since the action had been brought to the judicial organ of the Community, the Secretary General would ensure the compliance of any Court order it will issue.
The court will deliver its judgement on notice.
Notice for the editors:
The Burundi Tribunal on 19th February 2013 ordered Mr. Isidore Rufyikiri to stop practicing as an Advocate/ Lawyer and also refrained him from travelling out of the Country. Mr. Rufyikiri was the President of the Burundi Bar Association.
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