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IN THE EAST AFRICAN COURT OF JUSTICE FIRST INSTANCE DIVISION AT ARUSHA (Coram: Isaac Lenaola, DPJ; Faustin Ntezilyayo J. & Monica. Mugenyi, J.) REFERENCE NO. 1 of 2014 EAST AFRICA LAW SOCIETY................................APPLICANT VERSUS 1. THE ATTORNEY GENERAL OF THE REPUBLIC OF BURUNDI….............1ST RESPONDENT 2. THE SECRERAY GENERAL OF THE EAST AFRICAN COMMUNITY........2ND RESPONDENT 15TH MAY 2015 REFERENCE NO.11 OF 2011 Page 1

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Introduction2
Background2
The Applicant’s Case4
First Respondent’s Case8
Second Respondent’s Case9
Scheduling Conference10
Determination of the Issues by the Court11
Submissions5
Applicant’s Submissions11
1st Respondent’s Submissions13
2nd Respondent’s Submissions5
Determination of Issue No.118
Applicant’s Submissions21
Determination of Issue No. 225
Disbarment from the Roll of Advocates of the Burundi Bar Association31
Applicable Law31
Submissions34
Determination of Issue No. 335
Whether or not the Applicant is Entitled to the Remedies Sought38
Final Orders41

01/14 East African Law Society v Attorney General of Burundi & anor

EACJ Decision

Preview

Type of Document

Judgement

Country

EAC / EAC Organ
State Agent

Keywords

Functioning and Independence of the Judiciary
Right to Fair Trial

Outcome: Decided on Merits

Year Decided: May 15, 2015

Rights Violated (EACJ Treaty Provisions)

None Indicated

Duration of Procedure: ~ May 15, 2015

Primary Documents

01_14 East African Law Society v Attorney General of Burundi & anor.pdf
English
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Treaty for the Establishment of the East African Community

ARTICLE 11Functions of the Summit1.The Summit shall give general directions and impetus as to the development and achievement of the objectives of the Community.2.The Summit shall consider the annual progress reports and such other reports submitted to it by the Council as provided for by this Treaty.3.The Summit shall review the state of peace, security and good governancewithin the Community and the progress achieved towards the establishment of a Political Federation of the Partner States.4.The Summit shall have such other functions as may be conferred upon it by this Treaty.5.Subject to this Treaty, the Summit maydelegate the exercise of any of its functions, subject to any conditions which it may think fit to impose, to a member of the Summit, to the Council or to the Secretary General.6.An Act of the Community may provide for the delegation of any powers, including legislative powers, conferred on the Summit by this Treaty or by any Act of the Community, to the Council or to the Secretary General. 187.Subject to the provisions of any Act of the Community, the acts and decisions of the Summit may be signified under the hand of the Secretary General or of any officer in the service of the Community authorised in that behalf by the Summit.8.The Summit shall cause all rules and orders made by it under this Treaty to be published in the Gazette; and any such rules or orders shall come into force on the date of publication unless otherwise provided in the rule or order.9.The delegation of powers and functions referred to in paragraphs 5 and 6 of this Article, shall not include:(a)the giving of general directions and impetus;(b)the appointment of Judges to the East African Court of Justice;(c)the admission of new Members and granting of Observer Status to foreign countries; and(d)assent to Bills

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Treaty for the Establishment of the East African Community

ARTICLE 146Suspension of a Member1.The Summit may suspend a Partner State from taking part in the activities of the Community if that State fails to observe and fulfil the fundamental principles and objectives of the Treaty including failure to meet financial commitments to the Community within a period of eighteen (18) months.2.A Partner State suspended, in accordance with paragraph 1 of this Article, shall cease to enjoy the benefits provided for under this Treaty but shall continue to be bound by membership obligations until the suspension is lifted.ARTICLE 147Expulsion of a Member1.The Summit may expel a Partner State from the Community for gross and persistent violation of the principles and objectives of this Treaty after giving such Partner State twelve months’ written notice.2.Upon the expiration of the period specified in paragraph 1 of this Article, the Partner State concerned shall cease to be a member of the Community unless the notice is cancelled.3.During the period referred to in paragraphs 1 and 2 of this Article the Partner State concerned shall continue to comply with the provisions of this Treaty and be liable to discharge all subsisting obligations and long-term commitments incurred during membership.

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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

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

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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ARTICLE 67Secretary General1.The Secretary General shall be appointed by the Summit upon nomination by the relevant Head of State under the principle of rotation.2.Upon the appointment of the Secretary General the Partner State from which he or she is appointed shall forfeit the post of Deputy Secretary General.3.The Secretary General shall be the principal executive officer of the Community and shall:(a)be the head of the Secretariat;(b)be the Accounting Officer of the Community;(c)be the Secretary of the Summit; and (d)carry out such other duties as are conferred upon him by this Treatyor by the Council from time to time.

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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

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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ARTICLE 38Acceptance of Judgments of the Court1.Any dispute concerning the interpretation or application of this Treaty or any of the matters referred to the Court pursuant to this Chapter shall not be subjected to any method of settlement other than those provided for in this Treaty.2.Where a dispute has been referred to the Council or the Court, the Partner States shall refrain from any action which might be detrimental to the resolution of the dispute or might aggravate the dispute.3.A Partner State or the Council shall take, without delay, the measures required to implement a judgment of the Court.

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ARTICLE143SanctionsA Partner State which defaults in meeting its financial and other obligations under this Treaty shall be subject to such action as the Summit may on the recommendation of the Council, determine.

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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.

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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.

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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. 31ARTICLE 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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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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The East African Court of Justice Rules of Procedure 2013

53. (1) The First Instance Division shall, within fourteenconference(14) days after the close of pleadings or such other period as thePrincipal Judge may direct, hold a scheduling conference toascertain—(a)points of agreement and disagreement,(b)the possibility of mediation, conciliation or anyother form of settlement,(c)whether evidence is to be oral or by affidavit,(d)whether legal argument shall be written or oral, orboth,(e)the estimated length of the hearing,(f)any other matters as the Division may deemnecessary,(2)If the case has good potential for settlement, the Division shall direct that the case proceeds to mediation or other form of settlement. (3)If the matter is to proceed to hearing the Division shall fix the date for commencement of hearing. 34 The East African Court of Justice Rules of Procedure 2013(4) In any case where there is no need for evidence and all parties opt to present legal arguments in writing, the Division shall prescribe the time within which the parties shall file their respective written legal arguments and may fix the date on which the parties shall appear before a bench of three judges to deal with any other matter the Division thinks necessary

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for mutual benefit.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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05/11 Samuel Mukira Mohochi v Attorney General of Uganda

EACJ Decision

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02/13 Benoit Ndorimana v Attorney General of Burundi

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05/11 Samuel Mukira Mohochi v Attorney General of Uganda

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05/11 Samuel Mukira Mohochi v Attorney General of Uganda

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Treaty for the Establishment of the East African Community

RTICLE 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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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

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05/11 Samuel Mukira Mohochi v Attorney General of Uganda

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