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First Instance Division dismisses case challenging decision of the Constitutional Court of Burundi on Presidential term limits

The First Instance Division of the East African Court of Justice has dismissed a case filed by the East African Civil Society Organizations’ Forum (EASCOF) against the Attorney General of the Republic of Burundi, the Independent National Electoral Commission of Burundi (CENI) and the Secretary General of the East African Community.

EASCOF had alleged that the decision of the Constitutional Court of the Republic of Burundi violated the letter and spirit of the Arusha Peace and Reconciliation Agreement for Burundi, 2000 (the Arusha Accord) which was promulgated into domestic law by the Parliament of the Republic of Burundi, in particular Article 7(3) of Protocol 11 to the Arusha Accord which provides that the President of the Republic of Burundi shall be elected for a  term of five (5) years, renewable only once and that no one may serve more than two presidential terms. EASCOF further alleged that the Constitution of Burundi states under Article 96 that the President of the Republic is elected by universal; suffrage for a mandate of five years renewable once.

The Applicant further alleges that by reason of the aforementioned breach of the Arusha Accord and the Constitution of Burundi, the decision of the Constitutional Court equally violated Articles 5(3)(f), 6(d), 7(2), 8(1)(a) (c) and 8(5) of the Treaty for the Establishment of the EAC. The forum further claimed that the decision of the ruling CNDD-FDD political party to nominate or put forward President Nkurunzinza as a candidate for election to the Office of the President of the Republic Burundi in 2015 violated the Arusha Accord aforementioned and was therefore unlawful.

The Applicant also alleges that the CENI had failed to ensure compliance with the provisions of the EAC Treaty.

The Court in its decision declined the application by the Applicant to interrogate/ review, revise the decision of the Constitutional Court of the Republic of Burundi. It further added that it has primacy in the interpretation of the Treaty but its mandate does not extend to the interrogation/review of the decisions of other Courts in a judicial manner such as being asked by the Applicant of the Constitutional Court in this matter.

EACJ said that the interrogation would require the Court to exercise the appellate Jurisdiction over the said decisions which jurisdiction the Court does not have. The judges observed that the independence of the Courts of Partner States was a paramount principle of the rule of law as envisaged in Articles 6 (d) and 7 (2) of the Treaty, adding that they could not therefore in upholding those principles, interfere with that independence.

On the issue of the CNND-FDD to nominating Mr. Pierre Nkurunziza as its Presidential candidate for election, the Court decided that the issue was time barred. That the decision was made on 25th April, 2015 and therefore any challenge to it pursuant to Article 30 (2) of the Treaty ought to have been filed before it Court on or before 3rd June, 2015. That since the Reference was filed on 6th July 2015, it clearly shows that the matter was time barred.

The Court further averred that it found no evidence that the Secretary General had breached any of his duties in the context of this Reference, adding that the powers and functions of the Secretary General were clearly spelt out in Articles’ 67 and 71 of the Treaty. The judges were therefore hesitant to hold the Secretary General accountable for any action on his part. The Court reiterated the matter was predicated upon a specific decision of the Constitutional Court of Burundi issued on 25th May, 2015 with attendant events. The Court said that there was no plausible reason why the Secretary General was enjoined in this matter.

The Court also observed that the second respondent, CENI, was struck out of the reference that it has never entered appearance, was also improperly enjoined in this matter.

They concluded that the Reference has brought to the fore the continuing and emerging questions regarding the rule of law in Partner States within the EAC. The Court, faithful to its mandate, has found that the present case does not meet the muster of the Treaty and the same has to fail.

The Court closed the matter and ordered each party to bear their own costs.

The judgement was read by Hon. Justice Isaac Lenaola Deputy Principal Judge First Instance Division

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