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East Africa Law Society v Attorney General of Republic of Burundi and Another (Reference 1 of 2014)

East African Court of Justice · [2015] EACJ 92 · 2015 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Reference to the East African Court of Justice under Articles 6(d), 7(2), 11, 27, 29, 30, 38, 67(3)(d), 71, 143, 146 and 147 of the Treaty for the Establishment of the East African Community
Decision
Reference partly allowed with declarations that certain procedures violated Treaty obligations; Secretary General directed to operationalize Task Force; Burundi directed to cooperate with investigations

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court held that the Reference disclosed a cause of action against both Respondents. The Court found that the travel ban imposed on Mr. Rufyikiri by the Prosecutor General without court order violated due process and breached Articles 6(d) and 7(2) of the Treaty. The disbarment proceedings initiated before the statutory 60-day period for the Bar Council to decide had elapsed also violated due process and the rule of law principles in the Treaty. The prosecution before the Anti-Corruption Court was found lawful. The Secretary General was directed to operationalize the Task Force to investigate alleged Treaty violations by Burundi.

Outcome

Reference partly allowed with declarations that certain procedures violated Treaty obligations; Secretary General directed to operationalize Task Force; Burundi directed to cooperate with investigations

Facts

The East Africa Law Society filed a Reference alleging that the Republic of Burundi violated Treaty obligations in its treatment of Mr. Isidore Rufyikiri, then President of the Burundi Bar Association. Following a press conference on 29 October 2013 in which Mr. Rufyikiri raised issues of rule of law and governance, the Prosecutor General filed complaints seeking disciplinary action. On 2 December 2013, the Prosecutor General of the Anti-Corruption Court banned Mr. Rufyikiri from leaving Burundi in connection with corruption charges related to his role as President of the Burundi Centre for Arbitration and Conciliation. On 17 December 2013, before the statutory 60-day period for the Bar Council to decide had elapsed, the Prosecutor General filed a case before the Court of Appeal of Bujumbura seeking Mr. Rufyikiri's disbarment. The Court of Appeal disbarred Mr. Rufyikiri on 28 January 2014, a decision upheld on review by the Supreme Court on 16 June 2014. The Applicant alleged these actions violated Articles 6(d) and 7(2) of the Treaty concerning good governance and rule of law, and that the Secretary General failed to monitor Treaty compliance.

Issues

  1. Whether the Reference discloses a cause of action taking into account the provisions of Article 30(1) of the Treaty
  2. Whether the acts of the servants/agents/institutions of the 1st Respondent in prosecuting Mr. Rufyikiri before an Anti-corruption Court, disbarring him from the Roll of Advocates and prohibiting him from travelling outside of Burundi constituted breach of the provisions of Articles 6(d) and 7(2) of the Treaty
  3. Whether the 2nd Respondent failed/neglected his responsibilities under the provisions of Articles 29(1) and 71(1)(d) of the Treaty
  4. Whether or not the Applicant is entitled to the remedies sought

Orders

  • Prayers (a), (b), (e) and (f) dismissed.
  • Declaration that the procedure adopted and employed by the Prosecutor General to disbar Mr. Isidore Rufyikiri was in breach of the right to a fair trial and therefore a violation of the rule of law principle enshrined in Articles 6(d) and 7(2) of the Treaty.
  • Declaration that the procedure adopted and the decision taken by the Prosecutor General of the Anti-Corruption Court of Burundi to impose a travel ban on Mr. Isidore Rufyikiri infringed upon and was in contravention of the rule of law principle embodied in Articles 6(d) and 7(2) of the Treaty.
  • Order directing the Secretary General of the East African Community to immediately operationalize the Task Force set up on 15th January 2014 to investigate alleged violations of Treaty provisions by the Republic of Burundi.
  • The Republic of Burundi is directed to take, without delay, the measures required to implement this judgment, including allowing the Secretary General's Task Force to carry out its investigative mission.
  • Each party to bear its own costs.

Rules and key headnotes

Treaty Interpretation — Cause of Action under Article 30(1) — Requirements
Under Article 30(1) of the Treaty for the Establishment of the East African Community, a cause of action arises when an applicant pleads facts showing there has been an action, decision, or omission by a Partner State or the Community and that such action, decision, or omission contravenes a provision of the Treaty. The Treaty virtually creates a special cause of action which different parties may refer to the Court for adjudication.
Treaty Obligations — Good Governance and Rule of Law — Transformation into Actionable Obligations
Partner States' obligations to their citizens and residents in respect of good governance have, through those States' voluntary entry into the EAC Treaty, been scripted, transformed, and crystallized into actionable obligations stipulated in the Treaty, breach of which gives rise to infringement of the Treaty and constitutes a cause of action before the Court.
Travel Bans — Competent Authority — Due Process
Where national law provides that prohibition from travelling outside a country's territory is a complementary punishment to be imposed by court order, a travel ban issued by a prosecutor without court intervention constitutes a procedural irregularity amounting to lack of procedural due process and violates the rule of law principle enshrined in Articles 6(d) and 7(2) of the Treaty.
Professional Discipline — Advocates — Statutory Procedures — Exhaustion of Remedies
Where national law provides a Bar Council with 60 days to decide on a disciplinary complaint against an advocate, the filing of disbarment proceedings before a court before the expiry of that statutory period bypasses the Bar Council and violates the advocate's right to have the case heard by the professional body charged with disciplining advocates. Such failure to follow the letter of the law constitutes a violation of due process and contradicts the rule of law principles enshrined in Articles 6(d) and 7(2) of the Treaty.
Secretary General — Duty to Monitor Treaty Compliance — Proactive Obligations
It is the duty of the Secretary General of the East African Community to actively and proactively carry out Treaty functions under Articles 29(1) and 71(1)(d) for the sake of bringing Partner States into compliance with Treaty obligations they voluntarily subscribed to in order to ensure the advancement of East African integration. Where a Partner State fails to cooperate with investigations into alleged Treaty violations, the Secretary General must take effective action to overcome such lack of cooperation.

Legislation cited (37)

  • 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 8(4)
  • Treaty for the Establishment of the East African Community Article 11
  • Treaty for the Establishment of the East African Community Article 27
  • Treaty for the Establishment of the East African Community Article 27(1)
  • Treaty for the Establishment of the East African Community Article 29
  • Treaty for the Establishment of the East African Community Article 29(1)
  • Treaty for the Establishment of the East African Community Article 30
  • Treaty for the Establishment of the East African Community Article 30(1)
  • Treaty for the Establishment of the East African Community Article 38
  • Treaty for the Establishment of the East African Community Article 67
  • Treaty for the Establishment of the East African Community Article 67(3)(d)
  • Treaty for the Establishment of the East African Community Article 71
  • Treaty for the Establishment of the East African Community Article 71(1)(d)
  • Treaty for the Establishment of the East African Community Article 143
  • Treaty for the Establishment of the East African Community Article 146
  • Treaty for the Establishment of the East African Community Article 147
  • East African Court of Justice Rules of Procedure Rule 1(2)
  • East African Court of Justice Rules of Procedure Rule 24
  • East African Court of Justice Rules of Procedure Rule 53
  • Law No.1/12 of 18th April 2006 (Burundi) Article 1
  • Law No.1/12 of 18th April 2006 (Burundi) Article 3
  • Law No.1/12 of 18th April 2006 (Burundi) Article 5
  • Law No.1/12 of 18th April 2006 (Burundi) Article 6
  • Law No.1/12 of 18th April 2006 (Burundi) Article 10
  • Law No.1/10 of 3rd April 2013 (Burundi) Article 47
  • Law No.1/10 of 3rd April 2013 (Burundi) Article 50
  • Law No.1/10 of 3rd April 2013 (Burundi) Article 65
  • Law No.1/05 of 22nd April 2009 (Burundi) Article 60
  • Law No.1/05 of 22nd April 2009 (Burundi) Article 65
  • Law No.1/014 of 29th November 2002 (Burundi) Article 57
  • Law No.1/014 of 29th November 2002 (Burundi) Article 61
  • Law No.1/014 of 29th November 2002 (Burundi) Article 63
  • Law No.1/014 of 29th November 2002 (Burundi) Article 65
  • Law No.1/014 of 29th November 2002 (Burundi) Article 67
  • Law No.1/014 of 29th November 2002 (Burundi) Article 71

Cases cited (9)

  • Samuel Mukira Mohochi v Attorney General of the Republic of Uganda (Reference 5 of 2011)
  • James Katabazi and 21 Others v Secretary General of the East African Community and Another (Reference 1 of 2007)
  • Attorney General of the Republic of Kenya v Independent Medical Unit (Appeal 1 of 2011)
  • Attorney General of Rwanda v Plaxeda Rugumba (Appeal 1 of 2012)
  • Ndorimana Benoit v Attorney General of the Republic of Burundi (Reference 2 of 2014)
  • Prof. Peter Anyang' Nyong'o and 10 Others v Attorney General of Kenya and 3 Others (Reference 1 of 2006)
  • Anthony Calist Komu v Attorney General of the United Republic of Tanzania (Reference 7 of 2012)
  • R.V. Secretary of State for Transport, ex-part factortame Ltd. And Others [1990] ECR 1-2433
  • N.V. Algemene Transporta Expiditie Onderoming Van gen En Loos V. Nederlandse Administratie Del Belastingen [1903] ECA 1

Full judgment

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East Africa Law Society v Attorney General of Republic of Burundi and Another (Reference 1 of 2014) [2015] EACJ 92 (15 May 2015)
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.