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IN THE EAST AFRICAN COURT OF JUSTICE AT ARUSHA FIRST INSTANCE DIVISION (Coram: Isaac Lenaola, DPJ; Faustin Ntezilyayo, J; Fakihi A. Jundu, J) REFERENCE No.2 OF 2013 BENOIT NDORIMANA..............................APPLICANT VERSUS THE ATTORNEY GENERAL OF THE REPUBLIC OF BURUNDI........... RESPONDENT 28TH NOVEMBER 2014 REFERENCE No. 2 OF 2013 Page 1

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Table des matières

Introduction2
Background3
The Applicant’s Case4
The Respondent’s Case5
Scheduling Conference6
Determination of the Issues7
Whether the Court has Jurisdiction to Entertain the Reference7
Analysis of the Issue10
Whether the Reference is Time - barred13
Whether the Applicant is Entitled to Orders Sought13
Conclusion15

02/13 Benoit Ndorimana v Attorney General of Burundi

Décision de la Cour de Justice de l'Afrique de l'Est

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Type of Document

Jugement

État

Agent de l'État
Burundi

Mots clés

Administration de la justice
Arrestation et détention arbitraire
Dommages-intérêts
Droit à un procès équitable

Conclusion: Affaire rejetée

Year Decided: 28 nov. 2014

Rights Violated

Aucun Indiqué

Durée de la procédure: ~ 28 nov. 2014

Country Geolocation

Latitude: -3.373056

Longitude: 29.918886

Country Geolocation (Lié Décision de la Cour de Justice de l'Afrique de l'Est): Burundi

Documents principaux

02_13 Benoit Ndorimana v Attorney General.pdf
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Treaty for the Establishment of the East African 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;

Treaty

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;

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.

Treaty

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

Treaty

Treaty for the Establishment of the East African Community

3 12ARTICLE 5Objectives of the Community1.The objectives of the Community shall be to develop policies and programmes aimed at widening and deepening co-operation among the Partner States in political, economic, social and cultural fields, research and technology, defence, security and legal and judicial affairs, for their mutual benefit.2.In pursuance of the provisions of paragraph 1 of this Article, the Partner States undertake to establish among themselves and in accordance with the provisions of this Treaty, a Customs Union, a Common Market, subsequently a Monetary Union and ultimately a Political Federationin order to strengthen and regulate the industrial, commercial, infrastructural, cultural, social, political and other relations of the Partner States to the end that there shall be accelerated, harmonious and balanced development and sustained expansion of economic activities, the benefit of which shall be equitably shared.3.For purposes set out in paragraph 1 of this Article and as subsequently provided in particular provisions of this Treaty, the Community shall ensure:(a)the attainment of sustainable growth and development of the Partner States by the promotion of a more balanced and harmonious development of the Partner States;(b)the strengthening and consolidation of co-operation in agreed fields that would lead to equitable economic development within the Partner States and which would in turn, raise the standard of living and improve the quality of life of their populations;(c)the promotion of sustainable utilisation of the natural resources of the Partner States and the taking of measures that would effectively protect the natural environment of the Partner States;(d)the strengthening and consolidation of the long standing political,economic, social, cultural and traditional ties and associations between the peoples of the Partner States so as to promote a people-centeredmutual development of these ties and associations;(e)the mainstreaming of gender in all its endeavours and the enhancement of the role of women in cultural, social, political, economic and technological development; 13(f)the promotion of peace, security, and stability within, and good neighbourliness among, the Partner States; (g)the enhancement and strengthening of partnerships with the private sector and civil society in order to achieve sustainable socio-economic and political development; and(h)the undertaking of such other activities calculated to further the objectives of the Community, as the Partner States may from time to time decide to undertake in common.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

Treaty

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

Treaty

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

Treaty

Treaty for the Establishment of the East African Community

Treaty

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.

Règlement intérieur

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.

Règlement intérieur

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

Treaty

Treaty for the Establishment of the East African Community

Treaty

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.

Règlement intérieur

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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08/10 Plaxeda Rugumba v Secretary General of the East African Community & anor

Décision de la Cour de Justice de l'Afrique de l'Est

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

43.As regards prayers (c ) and (d),we have no jurisdiction to make such orders and we decline the invitation to perform the duties properly conferred on the National Courts of Burundi.

Décision de la Cour de Justice de l'Afrique de l'Est

Treaty for the Establishment of the East African Community

Treaty

08/10 Plaxeda Rugumba v Secretary General of the East African Community & anor

Décision de la Cour de Justice de l'Afrique de l'Est

Treaty for the Establishment of the East African Community

Treaty

Treaty for the Establishment of the East African Community

Treaty

Treaty for the Establishment of the East African Community

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Treaty for the Establishment of the East African Community

Treaty

Treaty for the Establishment of the East African Community

Treaty

Treaty for the Establishment of the East African Community

Treaty

Treaty for the Establishment of the East African Community

Treaty

08/10 Plaxeda Rugumba v Secretary General of the East African Community & anor

Décision de la Cour de Justice de l'Afrique de l'Est

05/13 Venant Masenge v Attorney General of Burundi

Décision de la Cour de Justice de l'Afrique de l'Est

Treaty for the Establishment of the East African Community

Treaty

Treaty for the Establishment of the East African Community

Treaty

Treaty for the Establishment of the East African Community

ARTICLE 23Role of the Court1.The Court shall be a judicial body which shall ensure the adherence to law in the interpretation and application of and compliance with this Treaty.2.The Court shall consist of a First Instance Division and an Appellate Division.3.The First Instance Division shall have jurisdiction to hear and determine, at first instance, subject to a right of appeal to the Appellate Division under Article 35A, any matter before the Court in accordance with 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

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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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