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THE EAST AFRICAN COURT OF JUSTICE (FIRST INSTANCE DIVISION) AT ARUSHA (Coram:Mary Stella Arach-Amoko,DPJ(Rtd), Isaac Lenaola, DPJ,John Mkwawa,J, REFERENCE NO. 8 OF 2011 PROFESSOR NYAMOYA FRANCOIS …………… APPLICANT VERSUS 1. ATTORNEY GENERAL OF THE REPUBLIC OF BURUNDI ……………1ST RESPONDENT 2. THE SECRETARY GENERAL OF THE EAST AFRICAN COMMUNITY …2ND RESPONDENT 1

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Introduction2
The Applicant’s Case3
1st Respondent’s Case5
The Case for the 2nd Respondent7
Scheduling Conference8
Consideration and Determination of Issue No (1)9
The Applicant’s Submissions10
1st Respondent’s Submissions12
2nd Respondent’s submission14
Decision of the Court on Issue No (i)16
Preliminary Objection18
On Amendment of the Reference18
On Whether the Reference is Time - Barred20
Decision of the Court16
Issues Nos (ii), (iii) and (iv)24
Conclusion24
Final Orders26

08/11 Prof Nyamoya Francois v Attorney General of Burundi & Anor

EACJ Decision

Preview

Type of Document

Judgement

Country

EAC / EAC Organ
State Agent

Keywords

Arbitrary Arrest and Detention

Outcome: Case Dismissed

Year Decided: Feb 28, 2014

Rights Violated (EACJ Treaty Provisions)

None Indicated

Duration of Procedure: Oct 14, 2011 ~ Feb 28, 2014

Primary Documents

08_11 Prof Nyamoya Francois v Attorney General of Burundi & anor.pdf
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Treaty for the Establishment of the East African Community

ARTICLE 8General Undertaking as to Implementation1.The Partner States shall:(a)plan and direct their policies and resources with a view to creating conditions favourable for the development and achievement of the objectives of the Community and the implementation of the provisions of this Treaty; (b)co-ordinate, through the institutions of the Community, theireconomic and other policies to the extent necessary to achieve the objectives of the Community; and 15(c)abstain from any measures likely to jeopardise the achievement of those objectives or the implementation of the provisions of this Treaty.2.Each Partner State shall, within twelve months from the date of signing this Treaty,secure the enactment and the effective implementation of such legislation as is necessary to give effect to this Treaty, and in particular -(a)to confer upon the Community the legal capacity and personality required for the performance of its functions; and(b)to confer upon the legislation, regulations and directives of the Community and its institutions as provided for in this Treaty, the force of law within its territory.3.Each Partner State shall -(a)designate a Ministry with which the Secretary General may communicate in connection with any matter arising out of the implementation or the application of this Treaty, and shall notify the Secretary General of that designation;(b)transmit to the Secretary General copies of all relevant existing and proposed legislation and its official gazettes; and (c)where it is required under this Treaty, to supply to or exchange with another Partner State any information, send copies of such information to the Secretary General.4.Community organs, institutions and laws shall take precedence over similar national ones on matters pertaining to the implementation of this Treaty.5.In pursuance of the provisions of paragraph 4 of this Article, the Partner States undertake to make the necessary legal instruments to confer precedence of Community organs, institutions and laws over similar national ones

Treaty

Treaty for the Establishment of the East African Community

ARTICLE 7Operational Principles of the Community1.The principles that shall govern the practical achievement of the objectives of the Community shall include:(a)people-centeredand market-driven co-operation; 14(b)the provision by the Partner States of an adequate and appropriate enabling environment, such as conducive policies and basic infrastructure;(c)the establishment of an export oriented economy for the Partner States in which there shall be free movement of goods, persons, labour, services, capital, information and technology;(d)the principle of subsidiarity with emphasis on multi-level participation and the involvement of a wide range of stake-holders in the process of integration;(e)the principle of variable geometry which allows for progression in co-operation among groups within the Community for wider integration schemes in various fields and at different speeds;(f)the equitable distribution of benefits accruing or to be derived from the operations of the Community and measures to address economic imbalances that may arise from such operations;(g)the principle of complementarity; and(h)the principle of asymmetry.2.The Partner States undertake to abide by the principles of good governance, includingadherence to the principles of democracy, the rule of law, social justice and the maintenance of universally accepted standards of human rights.

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Treaty for the Establishment of the East African Community

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Treaty for the Establishment of the East African Community

ARTICLE 6Fundamental Principles of the CommunityThe fundamental principles that shall govern the achievement of the objectives of the Community by the Partner States shallinclude:(a)mutual trust, political will and sovereign equality;(b)peaceful co-existence and good neighbourliness;(c)peaceful settlement of disputes;(d)good governance including adherence to the principles of democracy, the rule of law, accountability, transparency, social justice, equal opportunities, gender equality, as well as the recognition, promotion and protection of human and peoples rights in accordance with the provisions of the African Charter on Human and Peoples’ Rights;

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Treaty for the Establishment of the East African Community

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Treaty for the Establishment of the East African Community

ARTICLE 3Membership of the Community1.The members of the Community, in this Treaty referred to as "the Partner States", shall be the Republic of Uganda, the Republic of Kenya and the United Republic of Tanzania and any other country granted membership to the Communityunder this Article.2.The Partner States may, upon such terms and in such manner as they may determine, together negotiate with any foreign country the granting of membership to, or association of that country with, the Community or its participation in any of the activities of the Community.3.Subject to paragraph 4 of this Article, the matters to be taken into account by the Partner States in considering the application by a foreign country to become a member of, be associated with, or participate in any of the activities of the Community, shall include that foreign country’s:(a)acceptance of the Community as set out in this Treaty;(b)adherence to universally acceptable principles of good governance, democracy, the rule of law, observance of human rights and social justice;(c)potential contribution to the strengthening of integration within theEast African region; 11(d)geographical proximity to and inter-dependence between it and the Partner States; (e)establishment and maintenance of a market driven economy; and(f)social and economic policies being compatible with those of the Community.4.The conditions and other considerations that shall govern the membership or association of a foreign country with the Community or its participation in any of the activities of the Community shall be as those prescribed in this Article.5.The granting of observer status with respect to the Community shall:(a)in case of a foreign country, be the prerogative of the Summit; and(b)in case of an inter-governmental organization or civil society organisation, be the prerogative of the Council.6.The procedure to be followed with respect to the foregoing provisions of this Article shall be prescribed by the Council

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Treaty for the Establishment of the East African Community

ARTICLE 30Reference by Legal andNatural Persons1.Subject to theprovisions of Article 27 of this Treaty,any person who is resident in a Partner State may refer for determination by the Court, the legality of any Act,regulation, directive, decision or action of a Partner State or aninstitution of the Community on the grounds that such Act, regulation, directive, decision or action is unlawful or isan infringement of the provisions of this Treaty.2.The proceedings provided for in this Article shall be instituted within two monthsof the enactment, publication, directive, decision or action complained of, or in the absence thereof, of the day in which it came to the knowledge of the complainant, as the case may be;3.The Court shall have no jurisdiction under this Article where an Act, regulation, directive, decision or action has been reserved under this Treaty to an institution of a Partner State.

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Treaty for the Establishment of the East African Community

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The East African Court of Justice Rules of Procedure 2013

1.(1) These Rules may be cited as “The East African Court of Justice Rules of Procedure 2013” and shall come into force on such date as the President may appoint by notice in the Gazette. (2)Nothing in these Rules shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.

Rules of Procedure

The East African Court of Justice Rules of Procedure 2013

24. (1) A reference by a Partner State, the Secretary GeneralReferencesor any person under Articles 28, 29, 30 respectively of the Treatyshall be instituted by lodging in the Court a statement of reference.(2) A statement of reference under sub-rule (1) shallstate—(a)the name, designation, address and where applicable residence of the applicant; (b)the name, designation, address and where applicable residence of the respondent; (c)the subject-of the reference and a summary of the points of law on which the application is based; (d)where appropriate, the nature of any evidence offered in support; (e)the relief sought by the applicant. (3)Where the reference seeks the annulment of an Act, regulation, directive, decision or action, the statement of reference shall be accompanied by documentary evidence of the same. (4)Where the reference is made by a body corporate the statement of reference shall be accompanied by documentary evidence of the existence in law of that body corporate. (5)The Applicant shall serve on every respondent named in the reference and where applicable on the Secretary General a notification of the reference and a copy of the statement of reference.

Rules of Procedure

Treaty for the Establishment of the East African Community

ARTICLE 29Reference by the Secretary General1.Where the Secretary General considers that a Partner State has failed to fulfil an obligation under this Treaty or has infringed a provision of this Treaty, the Secretary Generalshall submit his or herfindings to the Partner State concerned for that Partner State to submit its observations on the findings.2.If the Partner State concerned does not submit its observations to the Secretary General within four months, or if the observations submitted are unsatisfactory, the Secretary General shall refer the matter to the Council which shall decide whether the matter shouldbe referred by the Secretary General to the Court immediately or be resolved by the Council.3.Where a matter has been referred to the Council under the provisions of paragraph 2 of this Article and the Council fails to resolve the matter, the Council shall direct the Secretary General to refer the matter to the Court.

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Treaty for the Establishment of the East African Community

ARTICLE 71Functions of the Secretariat1.The Secretariat shall be responsible for:(a)initiating, receiving and submitting recommendations to the Council, and forwardingof Bills to the Assembly through the Co-ordination Committee;(b)the initiation of studies and research related to, and the implementation of, programmes for the most appropriate, expeditious and efficient ways of achieving the objectives of the Community;(c)the strategic planning, management and monitoring of programmes for the development of the Community;(d)the undertaking either on its own initiative or otherwise, of such investigations, collection of information, or verification of matters relating to any matter affecting the Community that appears to it to merit examination;(e)the co-ordination and harmonisation of the policies and strategies relating to the development of the Community through the Co-ordination Committee;(f)the general promotion and dissemination of information on the Community to the stakeholders, the general public and the international community; 50(g)the submission of reports on the activities of the Community to the Council through the Co-ordination Committee; (h)the general administration and financial management of the Community;(i)the mobilisation of funds from development partners and other sources for the implementation of projects of the Community;(j)subject to the provisions of this Treaty, the submission of the budget of the Community to the Council for its consideration;(k)proposing draft agenda for the meetings of the organs of the Community other than the Court and the Assembly;(l)the implementation of the decisions of the Summit and the Council;(m)the organisation and the keeping of records of meetings of the institutions of the Community other than those of the Court and the Assembly;(n)the custody of the property of the Community;(o)the establishment of practical working relations with the Court and the Assembly; and(p)such other matters that may be provided for under this Treaty.2.For the purposes of paragraph 1 of this Article, the Secretary General shall where he or shethinks it appropriate, act on behalf of the Secretariat.3.The Deputy Secretaries General shall assist the Secretary General in the discharge of his or her functions. 4.The Counsel to the Community shall be the principal legal adviser to the Community in connection with matters pertaining to this Treaty and the Community and he or she shall by virtue of this paragraph be entitled to appear in the Courts of the Partner States in respect of matters pertaining to the Community and this Treaty.

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Treaty for the Establishment of the East African Community

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Treaty for the Establishment of the East African Community

ARTICLE 4Legal Capacity of the Community1.The Community shall have the capacity, within each of the Partner States, of a body corporate with perpetual succession, and shall have power to acquire, hold, manage and dispose of land and other property, and to sue and be sued in its own name.2.The Community shall have power to perform any of the functions conferred upon it by this Treaty and to do all things, including borrowing, that are necessary or desirable for the performance of those functions.3.The Community shall, as a body corporate, be represented by the Secretary General.

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Treaty for the Establishment of the East African Community

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Treaty for the Establishment of the East African Community

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Treaty for the Establishment of the East African Community

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Treaty for the Establishment of the East African Community

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Treaty for the Establishment of the East African Community

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Treaty for the Establishment of the East African Community

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Treaty for the Establishment of the East African Community

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Treaty for the Establishment of the East African Community

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Treaty for the Establishment of the East African Community

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Treaty for the Establishment of the East African Community

ARTICLE 27Jurisdiction of the Court1.The Court shall initially have jurisdiction over the interpretation and application of this Treaty:Provided that the Court’s jurisdiction to interpret under this paragraph shall not include the application of any such interpretation to jurisdiction conferred by the Treaty on organs of Partner States. 302.The Court shall have such other original, appellate, human rights and other jurisdictionas will be determined by the Council at a suitable subsequent date. To this end, the Partner States shall conclude a protocol to operationalise the extended jurisdiction.

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Treaty for the Establishment of the East African Community

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Treaty for the Establishment of the East African Community

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Treaty for the Establishment of the East African Community

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Treaty for the Establishment of the East African Community

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Treaty for the Establishment of the East African Community

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Treaty for the Establishment of the East African Community

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Treaty for the Establishment of the East African Community

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Treaty for the Establishment of the East African Community

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Treaty for the Establishment of the East African Community

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Treaty for the Establishment of the East African Community

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Treaty for the Establishment of the East African Community

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Treaty for the Establishment of the East African Community

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Treaty for the Establishment of the East African Community

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Treaty for the Establishment of the East African Community

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Treaty for the Establishment of the East African Community

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Treaty for the Establishment of the East African Community

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Treaty for the Establishment of the East African Community

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Treaty for the Establishment of the East African Community

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Treaty for the Establishment of the East African Community

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02/13 Benoit Ndorimana v Attorney General of Burundi

para 43 of the Judgment

EACJ Decision

The East African Court of Justice Rules of Procedure 2013

45. The pleadings, in any case, shall be closed fourteen (14)days after service of the reply, or, if no reply is served, fifteen (15) days after service of the response or defence or the defence to a counterclaim.

Rules of Procedure

The East African Court of Justice Rules of Procedure 2013

48.For the purpose of determining the real question in controversy between the parties, or of correcting any defect or error in any pleading, a party may amend its pleading—(a)without leave of the Court, before the close of pleadings; (b)with the consent of all parties, and where a person is to be added or substituted as a party, that person’s consent; or (c)with leave of the Court.

Rules of Procedure

The East African Court of Justice Rules of Procedure 2013

49.(1) A party that amends its pleading under paragraph (a)or (b)of Rule 48, shall lodge the original of the amended version of the pleading in the registry, and shall forthwith serve a copy thereof on every other party. General power to amendAmendment without leave31 The EastAfrican Court of Justice Rules of Procedure 2013Amendment with leave(2) Where a party is served with an amended pleading, after it has filed its answer it may, without leave of the Court, amend its own answer to the pleading which is being amended,and shall lodge it in the registry within fourteen (14) days after being so served

Rules of Procedure

Treaty for the Establishment of the East African Community

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Treaty for the Establishment of the East African Community

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Treaty for the Establishment of the East African Community

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Treaty for the Establishment of the East African Community

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The East African Court of Justice Rules of Procedure 2013

Rules of Procedure

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