15. We do recognize that it is no part of this Court’s function while
considering an interlocutory application to determine intrinsic
questions of law which call for detailed argument and detailed
considerations; those are matters to be dealt with at the hearing of the
substantive Reference.
See American Cyanamid vs. Ethicon Ltd
(supra). Accordingly, subject to more detailed consideration of these
points of law at the hearing of the Reference, at this stage we find that
a purposive interpretation of the foregoing legal provisions would
prima facie support the preposition that this Court’s jurisdiction is
restricted to matters of Treaty interpretation. Therefore, by exclusion,
the Court would have no jurisdiction to entertain a matter of
constitutional interpretation.
16. With specific regard to the present application, it would appear that
this Court has no jurisdiction to interpret the provisions of the
Burundi Constitution or Arusha Peace Agreement for purposes of
determining the correctness of the Burundi Constitutional Court’s
decision, as appears to be the thrust of the present application.
That is entirely different from the Court reviewing the provisions of
a Partner State’s national law with a view to determining its
compliance with the Treaty. This Court has explicitly pronounced
itself on having jurisdiction to entertain the latter scenario. See
Attorney General of Kenya vs. The Independent Medical Legal
Unit EACJ Appeal No. 1 of 2011 and Samuel Mukira Muhochi vs
The Attorney General of the Republic of Uganda EACJ Ref. No. 5
of 2011.
Reference No. 5 of 2015
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