43. Further, in Democratic Party vs. the Secretary General and the
Attorneys General of the Republics of Uganda, Kenya, Rwanda and
Burundi, EACJ Reference No.2 of 2012, the Court rendered itself as
follows:“Jurisdiction is quite different from the specific merits of any
case….
As it is, it should be noted that one of the issues of agreement as
set out by the parties is that there are triable issues based on
Articles 6, 7, 27 and 30 of the Treaty. That is correctly so since
once a party has invoked certain relevant provisions of the Treaty
and alleges infringement thereon, it is incumbent upon the Court
to seize the matter and within its jurisdiction under Articles 23, 27
and 30 determine whether the claim has merit or not. But where
clearly the Court has no jurisdiction because the issue is not one
that it can legitimately make a determination on, then it must
down its tools and decline to take one more step- see: Owners of
Motor Vessel Lillian ‘S’ vs Caltex Oil (Kenya) Ltd - [KLR].”
44. We wholly agree with the above exposition of the primacy of this Court’s
jurisdiction over
the interpretation of the Treaty and we therefore
reiterate the above findings and in determining Issue (a), we have no
doubt that the Reference as framed and argued, is properly before us
and that this Court has jurisdiction to determine the substantive issues
raised in the Reference.
ISSUE (B) – WHETHER THE PROVISIONS OF THE BURUNDI
PRESS LAW ARE INCONSISTENT WITH AND IN VIOLATION OF
ARTICLES 6(D) AND 7(2) OF THE TREATY:
45. This is the heart of the Reference and the issue requires that this
Court should look at the specific impugned provisions of the Press Law
Reference No. 5 of 2013
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