29. We shall now proceed to address each of the above issues.
ISSUE (A): WHETHER THE REFERENCE IS PROPERLY BEFORE
THIS COURT:
30. This issue was limited to whether the Reference can stand after a
challenge to the Press Law was made before the Constitutional Court of
Burundi, which interprets its Constitution, and whose decisions are final
and cannot be appealed from.
Applicant’s submissions
31. Invoking Articles 23 (1) and 27(1) of the Treaty, the Applicant submitted
that this is the only appropriate Court to rule on questions regarding the
interpretation and application of Burundi’s obligations under the Treaty.
In that regard, it placed reliance on past decisions of this Court in
Anyang’ Nyongo’ & Others vs. the Attorney General of Kenya, EACJ
Ref. No. 1 of 2006; Modern Holdings (EA) Ltd vs. Kenya Ports
Authority EACJ Reference No.1 of 2008 and Emmanuel Mwakisha
Mjawasi & 78 Others vs. the Attorney General of Kenya EACJ
Appeal No.4 of 2011.
32. In addition, it was the Applicant’s submission that under Article 33 of the
Treaty, decisions of this Court on interpretation and application of the
Treaty shall have precedence over decisions of National Courts on a
similar matter. In that regard and in any event, the Applicant argued that
there is no requirement that a Party must exhaust local remedies before
approaching this Court and relied on the decision of Rugumba vs.
Attorney General of Rwanda , EACJ Reference No.1 of 2012 in that
regard.
33. The Applicant also made the point that, in the present Reference,
whereas the Constitutional Court of Burundi has ruled on the
Constitutionality of the Press Law, that fact is not a bar either to the
Reference No. 5 of 2013
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