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Desire v A.G. of Burundi (Reference 8 of 2015)

East African Court of Justice · [2016] EACJ 8 · 2018 Reference Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Reference to the East African Court of Justice challenging alleged violations of Treaty obligations by Burundi courts in a land dispute
Decision
Reference dismissed with no order as to costs

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 has jurisdiction to conduct international review of national court decisions where they allegedly violate Treaty obligations, but such review is not appellate in nature. The Court found the Reference was filed within time but dismissed it on the merits, holding that the Applicant failed to prove violation of Treaty obligations or property rights with the required standard of evidence. Each party was ordered to bear its own costs given the importance of the legal issues to Community law development.

Outcome

Reference dismissed with no order as to costs

Facts

In 1997, the Applicant, a Burundian citizen, purchased three parcels of land in Bujumbura, including one from Simon Nzophabarushe. He executed an Attested Affidavit, consolidated the parcels, obtained a certificate of title, then subdivided and sold the land to new buyers. In 2010, Nzophabarushe sued the Applicant regarding the land he had sold in 1997. The Tribunal of First Instance ruled for Nzophabarushe in 2012 without allowing the Applicant to cross-examine witnesses or present oral submissions. The Court of Appeal upheld this decision in 2013 despite confirming the authenticity of the Attested Affidavit. The Supreme Court dismissed the Applicant's appeal on 24 June 2015; the Applicant received the judgment on 21 September 2015. The Applicant then filed this Reference alleging violations of Treaty obligations regarding rule of law, good governance, and property rights.

Issues

  1. Whether the Reference is time barred.
  2. Whether the East African Court of Justice has jurisdiction to determine the Reference.
  3. Whether the Respondent violated Articles 6(d) and 7(2) of the EAC Treaty, Article 15(1) of the Common Market Protocol, and/or Article 14 of the African Charter.
  4. Whether the Respondent's failure to recognize the legal and probative value of the Attested Affidavit No. 356/99 of 27th July 1999 is unlawful and violates the Applicant's rights.
  5. Whether the Applicant's right to peaceful enjoyment of property was violated.
  6. Whether the Applicant is entitled to the remedies sought.

Orders

  • Reference dismissed.
  • Each party to bear its own costs.

Rules and key headnotes

East African Court of Justice — Jurisdiction — Limitation Period — Computation
Under Article 30(2) of the EAC Treaty, the two-month limitation period for filing a Reference runs from the day the impugned decision came to the knowledge of the complainant, not from the date of delivery of the judgment where the complainant was not present and received notification later.
East African Court of Justice — Jurisdiction — International Review of National Court Decisions — Distinction from Appellate Review
The East African Court of Justice has jurisdiction under Articles 27(1) and 30(1) of the Treaty to conduct international review of national court decisions to determine whether they violate Treaty obligations, but this is not appellate jurisdiction. International review is characterized by a bipolar power dynamic, application of distinct legal perspectives (domestic law versus international obligations), and trial de novo regarding Treaty compliance, without binding effect on national courts as stare decisis.
State Responsibility — Attribution of Judicial Acts to the State — International Law
Under international law, the conduct of any organ of a State, including judicial organs, must be regarded as an act of that State. However, state responsibility for wrongful judicial acts is limited to cases showing outrage, bad faith, willful neglect of duty, or manifestly insufficient governmental action — only blatant, notorious and gross miscarriages of justice that are visible at a mere glance.
East African Court of Justice — Relationship with National Courts — Concurrent Jurisdiction
The EAC Treaty recognizes the inherent jurisdiction of national courts to try all matters within their locally designated jurisdiction. Article 27(1) confers exclusive jurisdiction on the East African Court of Justice for Treaty interpretation, while Article 33(2) subordinates national court decisions on Treaty interpretation to decisions of the EACJ. Where national courts allegedly fail to uphold international obligations, the EACJ may review whether the State has breached Treaty obligations.
Rule of Law — Good Governance — Burden and Standard of Proof
A party asserting violation of Treaty obligations regarding rule of law and good governance bears the burden of establishing the claim with evidence that is fully conclusive. Claims involving charges of exceptional gravity against a State must be proved by evidence that is fully conclusive. The failure to adduce the record of proceedings, applicable domestic laws, and legal antecedents is fatal to proving violations of rule of law principles.
Judicial Conduct — Reasoned Judgments — International Standards
The refusal or omission by any court to provide legal reasoning and justifications that underscore its conclusions constitutes unacceptable judicial conduct and willful neglect of duty. Where the apex court adopts such an unconventional approach, it negates the opportunity to coherently lay down stare decisis to guide lower courts. However, a decision is only rendered iniquitous and susceptible to international liability where it is the culmination of procedural defects that make it impossible for the decision to be just.
Property Rights — EAC Treaty and Protocol — Dependence on National Law
Under Article 15(1) of the EAC Common Market Protocol and Article 14 of the African Charter, property rights are governed by and premised on Partner States' national laws and policies. A party alleging violation of property rights must prove the existence of such rights under domestic law and establish that the impugned decision contravened those laws.

Legislation cited (18)

  • 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 23(1)
  • Treaty for the Establishment of the East African Community Article 27(1)
  • Treaty for the Establishment of the East African Community Article 27(2)
  • Treaty for the Establishment of the East African Community Article 30(1)
  • Treaty for the Establishment of the East African Community Article 30(2)
  • Treaty for the Establishment of the East African Community Article 30(3)
  • Treaty for the Establishment of the East African Community Article 33(1)
  • Treaty for the Establishment of the East African Community Article 33(2)
  • Treaty for the Establishment of the East African Community Article 34
  • Protocol on the Establishment of the East African Community Common Market Article 15(1)
  • African Charter on Human and Peoples' Rights Article 14
  • East African Court of Justice Rules of Procedure 2013 Rule 1(2)
  • East African Court of Justice Rules of Procedure 2013 Rule 24
  • East African Court of Justice Rules of Procedure 2013 Rule 111(1)
  • International Law Commission Articles on Responsibility of States for Internationally Wrongful Acts Article 4(1)
  • Burundi Law No. 1/004 Article 46

Cases cited (14)

  • Sitenda Sebalu v Secretary General, East African Community & Others (Reference No. 1 of 2010)
  • Peter Anyang' Nyong'o & 10 Others v Attorney General of Kenya & 2 Others (Reference No. 1 of 2006)
  • Baranzira & Another v Attorney General of Burundi (Reference No. 15 of 2014)
  • Henry Kyalimpa v Attorney General of Uganda (Appeal No. 6 of 2014)
  • East African Civil Society Organisations Forum v Attorney General of Burundi & 2 Others (Reference No. 2 of 2015)
  • Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion, ICJ Reports 1999, p.62 at pp. 87-88, paras. 62, 63
  • Salvador Commercial Company, 1902, UNRIAA, vol. XV, p. 455 at p.477
  • B. E. Chattin (USA) vs. United Mexican States, 1927, UNRIAA, vol. IV, p.282 at 288
  • Ida Robinson Smith Putnam (USA) vs. United Mexican States, 1927. UNRIAA. vol. IV. p.151 at 153
  • Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia & Herzegovina vs. Serbia & Montenegro). Judgment, ICJ Reports 2007, p.43, para. 203
  • Military and para-military Activities in and against Nicaragua (Nicaragua vs. United States of America), Judgment, ICJ Reports 1984, p.437, para. 101
  • Corfu Channel (United Kingdom vs. Albania), Judgment, ICJ Reports 1949, p.17
  • L. F. H. Neer & Pauline Neer (USA) vs. Unted Mexican States, 1926, UNRIAA, Vol. IV, p. 60 at 62
  • Cotesworth and Powell, 1875, British Columbia Commission

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Desire v A.G. of Burundi (Reference 8 of 2015) [2018] EACJ 124 (23 October 2018)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.