Determination on issue (a)
39. The jurisdiction of this Court is set out in Articles 23(1) and 27(1) of the
Treaty which in a nutshell clothe it with the exclusive mandate to apply
and interpret the Treaty save in the context of the proviso in Article 27(1)
of the Treaty. This fact is not denied by either Party but the Respondent
argued that once the issue of the legality and constitutionality or
otherwise of the Press Law has been determined by the Constitutional
Court of Burundi, then, that issue is finalized and no other Court,
including the EACJ, can be properly seized of it.
40. With tremendous respect to the Respondent, what is before this Court is
not a question whether the Press Law meets the constitutional muster
under the Constitution of the Republic of Burundi but whether it meets
the expectations of Articles 6(d) and 7(2) of the Treaty. The Applicant has
not cited a single provision of the Burundi Constitution which it deems as
violated by the Press Law because that would have been a matter well
within the jurisdiction of that Court in any event, and in its decision of 7th
January, 2014, well after this Reference had been filed, it determined that
Articles 61, 62, 67 and 69 of the Press Law were unconstitutional. In
Article 225 of the Constitution of Burundi, the Constitutional Court is the
best Judge of the constitutionality of the Laws and interprets the
Constitutional Act (translated ad lib from the original French).
41. The above jurisdiction differs from that conferred by Article 27(1) which
provides that this Court shall “initially have jurisdiction over the
interpretation of the Treaty.” The proviso thereof is irrelevant for purposes
of this Reference, but suffice it to say that interpretation of the question
whether Articles 6(d) and 7(2) of the Treaty were violated in the
enactment of the Press Law is a matter squarely within the ambit of this
Court’s jurisdiction.
Reference No. 5 of 2013
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