East African Court of Justice Arusha, 15 August 2014: The First Instance Division today delivered three rulings in the Application matters, one allowed and other two dismissed.
The First Ruling of the Court,
The First Instance Division allowed Civil Society groups and Non- Governmental Organizations operating with and without the borders of the Republic of Burundi to participate in the case filed by Burundi Journalists Association as amicus curiae (Friends of the Court) pursuant to Rule 36 of the East African Court of Justice Rules of procedure. Rule 36 provides that “an application for leave to intervene under Article
40 of the Treaty and an application for leave to appear as amicus curiae shall be by notice of motion”.
The main case challenges inter-alia Law which governs the Press Sector in Burundi which was amended and in their case that numerous provisions of that law are contrary to the freedoms of expression and of the press within the meaning of Article 6 (d) and 7 (2) of the Treaty for the Establishment of the East African Community. Therefore the a amicus curiae claim was that, they all have a genuine commitment to promoting respect for and observance of the freedoms of expression and of the press and in that regard they have acquired valuable expertise in that area of law. They seek to be enjoined as amicus curiae to assist the Court on two issues;
Identifying and explaining the types of regulation of the media that constitute an infringement on press freedom, offering reasons why the freedoms of speech and of the press are essential components of both the fundamental principles of the EAC contained in Articles mentioned above.
Court in its ruling said that looking at the case filed and noting the issues in contest, it would be in the wider interests of justice that we admit the Applicants as amicus curiae and their role shall be limited to the filing of only one set of submissions within the timeframe to be determined by this Court. Further that, the amicus is a friend of the Court and the Court can only take what it considers relevant and non-partisan from the amicus and the ultimate control over what the amicus can do is the Court itself.
The Civil society groups and NGOs allowed to participate in the matter include; Forum pour Reinforcement de la Societe’ civile (FORSC), the international Press Conference Institute, Maison de la Presse du Burundi, Forum pour la conscience et le Development (FOCODE), PEN Kenya, Pan African Lawyers Union (PALU), PEN international, Reporters sans fronteres and the World Association of Newspapers and News Publishers.
The Court also dismissed an Application filed by Burundi citizens and a political party by the name (UPRONA Party), and Mr. Gabriel Sinirinzi, and Mr. Onesime Kabayabaya (Applicants) against the Attorney General of the Republic of Burundi and the Secretary General of the East African Community (Respondents). The Applicants were challenging the inter-alia the creation of the National Commission for Lands and other assets in the Republic of Burundi vide Act 1/31 which came into effect on 31st December 2013. The complaint is that the said Act in effect granted the Commission powers akin to those of the judiciary which is a violation and a breach of Article 6 (d) and 7 (2) of the EAC Treaty and therefore ask Court an interim Ex-Parte order (temporary) to stay the enforcement of the Act in Burundi.
The Court in its ruling said that, the land is an emotive issue in the East African region and Courts generally bear that fact in mind when settling disputes tied to land, but as regards the Application before the Court, the Judges did not see merit in it and they dismissed it as prayed by the Respondents. The Court added that, it finds tremendous difficulty in granting the order at this stage because the Commission is still a statutory institution under the laws if Burundi, despite displeasure expressed by the Applicants.
Again the Court declined to nullify the Commission at this stage because it might affect the final decision of the matter by following a perpetuated chaotic procedural and legal situation. The Court added that the Commission is functioning and has been for some years, it is best therefore that the situation as obtaining today should to obtain and the Court will render itself fully and finally both the Act and its processes and including the work of the Commission once the main case has been heard and determined on its merits and is the best cause of action in the wider interests of justice.
The First Instance Division also dismissed another Application filed by the East African Law Society( (EALS) Applicant) against the Attorney General Republic of Burundi and the Secretary General East African Community (Respondents). The Applicants were seeking among others a declaration from Court that the decision and order of the Court of Appeal of Burundi of 28th January 2014; and travel ban imposed to Mr. Isidore Rufyikiri by the Prosecutor of the Anti- Corruption Court of Burundi infringes upon and are in contravention of Articles 6 (d) and 7 (1) and (2) of the Treaty and therefore asked Court to grant order to stay the decision of the Court of Appeal pending hearing and determination of the main case.
The Court in its Ruling said that, the Applicant has to wait for the main Reference since it is there that arguments regarding freedom of movement, right of practice, right of association that were prematurely presented in this Application will be properly addressed. That for the Court to delve into these issues at this stage would be kin to pre-judging the merits or demerits of the main case and the politely declined the invitation to do so. The Court further said that the prayers in this Application are identical to those in the main case and that it is also clear that the orders sought are final in nature and cannot be issued at this interlocutory (middle) stage and hence it was dismissed. Mr. Rufyikiri was the President of the Burundi Bar Association.
Parties present in Court were Mr. Donald Deya representing the Applicants in the 1st and 3rd Applications, Dr. Anthony Kafumbe and Hon. Wilbert Kaahwa representing the Secretary General in the 2nd and 3rd Applications respectively and Mr. Hamphrey Mtuy representing EALS (Applicant) in the 2nd Application.
The Court will proceed with sessions of the Appellate Division next week.
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