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7. Briefly, the Applicant avers that on 15th October 2009, he was arrested on suspicion that he had committed murder of one Ernest Manirumva. He alleges that following his arrest, he was not charged within the time prescribed by the Burundi Code of Penal Procedure and has since then been subjected to arbitrary and unlawful detention by agents of the Government of Burundi. 8. He claims that the acts/omissions of the Government of Burundi was an infringement of Article 6(d) of the Treaty since they violate the fundamental principles of the East African Community. He further claims that the matter gained so much notoriety that the 2nd Respondent is bound to have known and ought to have taken action pursuant to Articles 29(1) and 71(1) (d) of the Treaty. 9. The Applicant therefore seeks declarations from the Court that: a) Keeping him in detention is an infringement of Article 6(d) of the Treaty; b) The Secretary General failed to fulfil his obligations under Articles 29 and 71(1)(d) of the Treaty; c) He has a full right to enjoy his freedom without any prior condition; d) An order that he be immediately released; e) The costs of the reference. FIRST RESPONDENT’S CASE 10. The 1st Respondent’s case is set out in his response and amended response to the Reference filed on 26th March 2012 and 22nd February 2013 respectively. REFERENCE NO.3 OF 2012 Page 4

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Introduction2
Background3
The Applicants’s Case3
First Respondent’s Case4
Second Respondent’s Case5
Scheduling Conference6
Points of Agreement6
Points of Disagreement/Issues for Determination by the Court6
Determination of the Issues by the Court7
Whether the Court is Vested With the Jurisdiction to Entertain this Reference7
Submissions7
Decision of the Court on Issue No.110
Whether the Reference is Time - Barred13
Decision of the Court15
Conclusion17

REFERENCE NO 3 OF 2012 Hilaire Ndayizamba 28 February 2014

Decisão do Tribunal do Leste Africano

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Type of Document

Acórdão

Estado

Agente do Estado

Palavras-Chave

Direito ao Julgamento Justo
Liberdade de Movimento
Prisão e Detenção Arbitrárias

Resultado: Caso Rejeitado

Data da Decisão: 28 de fev. de 2014

Direitos Violados

Não Indicado

Duração do Procedimento: ~ 28 de fev. de 2014

Primary Documents

03_12 Hilaire Ndayizamba v Attorney General of Burundi & Another.pdf
English
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EACJ Treaty

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;3.The Court shall have no jurisdiction under this Article where an Act, regulation, directive, decision or action has been reserved under this Treaty to an institution of a Partner State

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1. 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.

Rules of Procedure

1. 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.

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EACJ Treaty

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;

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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.5.In pursuance of the provisions of paragraph 4 of this Article, the Partner States undertake to make the necessary legal instruments to confer precedence of Community organs, institutions and laws over similar national ones

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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.

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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;

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ARTICLE 71Functions of the Secretariat1.The Secretariat shall be responsible for:(a)initiating, receiving and submitting recommendations to the Council, and forwardingof Bills to the Assembly through the Co-ordination Committee;(b)the initiation of studies and research related to, and the implementation of, programmes for the most appropriate, expeditious and efficient ways of achieving the objectives of the Community;(c)the strategic planning, management and monitoring of programmes for the development of the Community;(d)the undertaking either on its own initiative or otherwise, of such investigations, collection of information, or verification of matters relating to any matter affecting the Community that appears to it to merit examination;(e)the co-ordination and harmonisation of the policies and strategies relating to the development of the Community through the Co-ordination Committee;(f)the general promotion and dissemination of information on the Community to the stakeholders, the general public and the international community; 50(g)the submission of reports on the activities of the Community to the Council through the Co-ordination Committee; (h)the general administration and financial management of the Community;(i)the mobilisation of funds from development partners and other sources for the implementation of projects of the Community;(j)subject to the provisions of this Treaty, the submission of the budget of the Community to the Council for its consideration;(k)proposing draft agenda for the meetings of the organs of the Community other than the Court and the Assembly;(l)the implementation of the decisions of the Summit and the Council;(m)the organisation and the keeping of records of meetings of the institutions of the Community other than those of the Court and the Assembly;(n)the custody of the property of the Community;(o)the establishment of practical working relations with the Court and the Assembly; and(p)such other matters that may be provided for under this Treaty

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ARTICLE 29Reference by the Secretary General1.Where the Secretary General considers that a Partner State has failed to fulfil an obligation under this Treaty or has infringed a provision of this Treaty, the Secretary Generalshall submit his or herfindings to the Partner State concerned for that Partner State to submit its observations on the findings.2.If the Partner State concerned does not submit its observations to the Secretary General within four months, or if the observations submitted are unsatisfactory, the Secretary General shall refer the matter to the Council which shall decide whether the matter shouldbe referred by the Secretary General to the Court immediately or be resolved by the Council.3.Where a matter has been referred to the Council under the provisions of paragraph 2 of this Article and the Council fails to resolve the matter, the Council shall direct the Secretary General to refer the matter to the Court.

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1. 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

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EACJ Treaty

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.

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Plaxeda Rugumba 2010 8 judgment 2011

Decisão do Tribunal do Leste Africano

EACJ Treaty

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.

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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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Plaxeda Rugumba 2010 8 judgment 2011

Decisão do Tribunal do Leste Africano

EACJ Treaty

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Plaxeda Rugumba 2010 8 judgment 2011

Decisão do Tribunal do Leste Africano

EACJ Treaty

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.

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EACJ Treaty

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.

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EACJ Treaty

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EACJ Treaty

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Plaxeda Rugumba 2010 8 judgment 2011

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EACJ Treaty

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RTICLE 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;

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- Tratado61
- Rules of Procedure3
Cases Referenced4
- Decisão do Tribunal do Leste Africano4

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