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Burundian Journalists Union v Attorney General of Republic of Burundi (Reference 7 of 2013)

East African Court of Justice · [2015] EACJ 91 · 2015 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Reference under Articles 6(d), 7(2), 27(1), 30(1) of the Treaty for the Establishment of the East African Community challenging the constitutionality of Burundi's Press Law
Decision
Reference partly allowed. Certain provisions of Burundi Press Law declared in violation of Treaty obligations. Burundi directed to implement judgment through internal legal mechanisms.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The East African Court of Justice held that it had jurisdiction to interpret the Treaty notwithstanding the Constitutional Court of Burundi's prior ruling on the Press Law. The Court found that certain provisions of Burundi's Press Law violated Articles 6(d) and 7(2) of the Treaty, specifically Article 19 restrictions on disseminating information about currency stability, offensive articles, state credit, diplomacy, scientific research, and commission reports, and Article 20 requiring journalists to disclose confidential sources. The Court declared these provisions violated Treaty principles of democracy, rule of law, and human rights protection, and directed Burundi to implement the judgment through its internal legal mechanisms.

Outcome

Reference partly allowed. Certain provisions of Burundi Press Law declared in violation of Treaty obligations. Burundi directed to implement judgment through internal legal mechanisms.

Facts

The Burundian Journalists Union challenged Burundi's Press Law No.1/11 of 4th June 2013, which amended Law No.1/025 of 27th November 2003 regulating the press. The Press Law was adopted by the National Assembly on 3rd April 2013, passed by the Senate on 19th April 2013, and signed by the President on 4th June 2013. The Applicant contended that the Press Law restricted press freedom through compulsory journalist accreditation, broad content restrictions, requirements to disclose confidential sources, onerous regulatory frameworks for print and web media, prior censorship of films, vague right of reply provisions, and severe penalties. The Constitutional Court of Burundi had previously declared Articles 61, 62, 67 and 69 unconstitutional on 7th January 2014. Nine non-governmental organizations were joined as amici curiae to assist the Court.

Issues

  1. Whether the Reference is properly before the East African Court of Justice
  2. Whether the provisions of the Burundi Press Law are inconsistent with and in violation of Articles 6(d) and 7(2) of the Treaty for the Establishment of the East African Community
  3. Whether the Applicant is entitled to the reliefs sought

Orders

  • Article 19(b), (g), (i) and part of (j) of Burundian Law No.1/11 of 4th June 2013 declared in violation of Articles 6(d) and 7(2) of the Treaty insofar as they restrict dissemination of information on currency stability, offensive articles regarding public or private persons, information harming state credit and national economy, diplomacy, scientific research and reports of Commissions of inquiry.
  • Article 20 of Burundian Law No.1/11 of 4th June 2013 declared in violation of Articles 6(d) and 7(2) of the Treaty to the extent it obligates journalists to reveal sources of information relating to state security, public order, state defence secrets and moral and physical integrity of persons.
  • Republic of Burundi directed to take measures without delay to implement this judgment within its internal legal mechanisms in accordance with Article 38(3) of the Treaty.
  • Prayer (iii) seeking repeal or amendment of the Press Law dismissed.
  • Each party to bear its own costs.

Rules and key headnotes

Treaty Interpretation — Jurisdiction of East African Court of Justice — Primacy over National Courts
The East African Court of Justice has exclusive jurisdiction to interpret and apply the Treaty for the Establishment of the East African Community under Articles 23(1) and 27(1), and decisions of national courts, including constitutional courts, on the constitutionality of national laws do not oust the EACJ's jurisdiction to determine whether those laws violate Treaty obligations.
Treaty Obligations — Articles 6(d) and 7(2) — Justiciability and Binding Nature
Articles 6(d) and 7(2) of the Treaty for the Establishment of the East African Community, which enshrine principles of good governance, democracy, rule of law, accountability, transparency, and protection of human rights, are justiciable and create binding obligations on Partner States, not merely aspirational principles.
Freedom of Expression and Press — Essential Component of Democracy
Freedom of the press and freedom of expression are essential components of democracy and constitute the foundation for the principles of accountability, transparency, and good governance enshrined in Articles 6(d) and 7(2) of the Treaty. Without a free press, there is no free circulation of information and ideas, and the electorate cannot properly inform itself or hold leaders to account.
Freedom of Expression — Limitations — Tests of Reasonability, Rationality and Proportionality
Where a national law restricts freedom of expression or press freedom, the restriction must meet tests of reasonability, rationality, and proportionality. The restriction must be prescribed by law, pursue a pressing and substantial objective important to society, be rationally connected to that objective, and limit the right as little as possible with effects proportional to the objectives sought.
Press Freedom — Content-Based Restrictions — Impermissible Limitations
Restrictions on press freedom that prohibit dissemination of information on matters such as stability of currency, offensive articles regarding public or private persons, information that may harm state credit and national economy, diplomacy, scientific research, and reports of state commissions of inquiry are unduly restrictive and fail tests of reasonability, rationality, and proportionality, as citizens of a democratic state are entitled to information that informs their choices in matters of governance.
Press Freedom — Protection of Journalistic Sources — Confidentiality
Protection of journalistic sources is one of the basic conditions for press freedom and the vital public-watchdog role of the press. Laws requiring journalists to disclose confidential sources of information, even in matters relating to state security, public order, defence secrets, and moral and physical integrity of persons, violate press freedom as there are other less restrictive ways of dealing with such issues.
Press Freedom — Right of Reply and Correction — Legitimate Protection
A right of reply, correction, and redress for persons prejudiced by inaccurate media reporting is a legitimate protection in a democracy and does not violate press freedom, as victims have rights in any democracy and accurate reporting is a professional obligation of journalists.

Legislation cited (15)

  • Treaty for the Establishment of the East African Community Article 6(d)
  • Treaty for the Establishment of the East African Community Article 7(2)
  • Treaty for the Establishment of the East African Community Article 27(1)
  • Treaty for the Establishment of the East African Community Article 30(1)
  • Treaty for the Establishment of the East African Community Article 23(1)
  • Treaty for the Establishment of the East African Community Article 33
  • Treaty for the Establishment of the East African Community Article 38(3)
  • East African Court of Justice Rules of Procedure Rule 24
  • East African Court of Justice Rules of Procedure Rule 53
  • Burundian Law No.1/11 of 4th June 2013
  • Burundian Law No.1/025 of 27th November 2003
  • Burundian Law No.1/03 of 24th January 2013
  • Burundian Law No.1/18 of 29th September 2007
  • Burundian Constitution Article 225
  • African Charter on Human and Peoples' Rights

Cases cited (48)

  • Anyang' Nyongo' & Others v Attorney General of Kenya (EACJ Reference No. 1 of 2006)
  • Modern Holdings (EA) Ltd v Kenya Ports Authority (EACJ Reference No. 1 of 2008)
  • Emmanuel Mwakisha Mjawasi & 78 Others v Attorney General of Kenya (EACJ Appeal No. 4 of 2011)
  • Rugumba v Attorney General of Rwanda (EACJ Reference No. 1 of 2012)
  • Samuel Mukira Mohochi v Attorney General of Uganda (EACJ Reference No. 5 of 2011)
  • Democratic Party v Secretary General and Attorneys General of Uganda, Kenya, Rwanda and Burundi (EACJ Reference No. 2 of 2012)
  • Nyamoya Francis v Attorney General of Burundi & Anor (EACJ Reference No. 8 of 2011)
  • Masenge v Attorney General of Burundi (EACJ Reference No. 9 of 2012)
  • Scanlan & Holderness vs Zimbabwe, Comm.297/05 (2005)
  • Law offices of Ghazi Suleiman vs. Sudan, Comm. No.228/099 (2003)
  • Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, Advisory Opinion of - 5/85 (1985)
  • Kenneth Good vs. Republic of Botswana Comm.313/05
  • Lingers vs. Austria; Appl. No.9715/82 (1986)
  • Government of the Republic of South Africa vs. 'Sunday Times Newspaper' & Anor (2) SA 221 (1994)
  • New York Times vs. United States 403 U.S 713 (1971)
  • Mandela vs. Falati (I) S.A 251(W) 1995
  • Kasoma vs. AG of Zambia Case 95/HP/29/95
  • Sunday Times vs. United Kingdom Appl.no 6538/74 (1979)
  • Goodwin vs. UK Appl. No.28957/95 (2009)
  • Saroma vs. Netherlands, Appl.38224/03 (2010)
  • Lapsevitch vs. Belarus UN Human Rights Committee Comm. No.780/1997 (2000)
  • Media Rights Agenda & Others vs. Nigeria, ACPHR Comms 105/93,128/94,130/94 and 152/96 (1998)
  • Bantam Books Inc. vs. Sullivan 372 U.S 58 (1963)
  • Observer and Guardian vs. U.K Appl. No.13484/88 (1991)
  • Miami Herald Publishing Co. vs. Tornillo 418 US 241(1994)
  • Tolstry Miloslavsky vs. UK, Appl. No.18139/92 (1993)
  • Owners of Motor Vessel Lillian 'S' vs Caltex Oil (Kenya) Ltd - [KLR]
  • Print Media South African & Anor vs. Minister of Home Affairs & Anor [2009], ZACC 22
  • R vs. Secretary of State for the Home Department ex-parte Firms [1999] UKHL 33(1999)
  • Roriesh Thappar vs. State of Madras 1950 SCR 594
  • Reference RE Alberta Statues [1938] SCR 100
  • Irwin Troy Ltd vs. Quebec (AG) [1989]1 SCR 927
  • Canadian Broadcasting Corp; vs. Brunswick (AG) [1996] 3 SCR 480
  • Express Newspapers vs. Union of India 1985 SCR(2) 287
  • Mills vs. Alabama 384 U.S. 214 (1996)
  • New York Times Co. vs. Sullivan 376 U.S. 254 (1964)
  • Case of Herera - Ulva vs. Costa Rica[2004] 1ACCHR 3
  • Miami Herald Publishing Co. Ltd vs. Turnillo 418 US 241 (1974)
  • Goodwin vs. UK (1996) 22 EHRR123
  • R. vs. National Post 2010 SCC 16
  • Cord vs. the Republic of Kenya and Others H.C. Petition No.628 of 2014
  • Charles Onyango-Obbo and Anor v. Attorney General (Constitutional Appeal No.2 of 2002..)
  • R vs. Oakes (1986) ISCR 103
  • R. vs. Big Drug Mart (1985) ISCR 295
  • R. Vs Chaulk (1990) 3, SCR 1303
  • S. vs. Mamabolo [2001] ZACC 17
  • Ramesh Thappar vs. State of Madras 1950 SCR 594
  • Edmond Journal (supra)

Full judgment

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Burundian Journalists Union v Attorney General of Republic of Burundi (Reference 7 of 2013) [2015] EACJ 91 (15 May 2015)
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