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East African Civil Society Organisations Forum v A.G. of Burundi and Ors. (Application 5 of 2015)

East African Court of Justice · [2015] EACJ 94 · 2015 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for interim orders pending hearing of Reference No. 2 of 2015
Decision
Application for interim orders dismissed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The East African Court of Justice dismissed an application for interim orders seeking to postpone Burundi's Presidential and Senatorial Elections. The Court held that it lacked jurisdiction to interpret the Burundi Constitution or review decisions of Burundi's Constitutional Court, as its jurisdiction is restricted to matters of Treaty interpretation under Article 27(1) of the EAC Treaty. The applicant failed to demonstrate irreparable injury or that the balance of convenience favoured granting the orders, particularly given Burundi's constitutional obligation to hold elections within the prescribed timeframe.

Outcome

Application for interim orders dismissed

Facts

The East African Civil Society Organisations Forum (EACSOF) filed Reference No. 2 of 2015 and an application for interim orders seeking to stay Decree No. 100/177 of 9 June 2015 postponing Burundi's Presidential and Senatorial Elections, and to stay the decision of the Commission Electorale Nationale Independente (CENI) approving President Pierre Nkurunziza's nomination as a Presidential candidate. The applicant argued that President Nkurunziza's candidacy for a third term violated the Burundi Constitution and the Arusha Peace and Reconciliation Agreement for Burundi, 2000, both of which limit Presidential office to two terms. The applicant contended that the situation in Burundi required urgent intervention to prevent deterioration of security and suffering of the Burundian people. The application was initially heard ex parte on 14 July 2015 but was adjourned for inter partes hearing on 20 July 2015. The Burundi Presidential Election had been postponed to 21 July 2015. Article 103 of the Burundi Constitution required the Presidential Election to be held not later than one month before the expiration of the incumbent President's term, which was due to expire on 26 August 2015.

Issues

  1. Whether the East African Court of Justice has jurisdiction to interpret the Constitution of Burundi or review decisions of the Burundi Constitutional Court.
  2. Whether the applicant established a prima facie case for interim orders.
  3. Whether the applicant would suffer irreparable injury if interim orders were not granted.
  4. Where the balance of convenience lay in the application for interim orders to postpone Burundi's Presidential and Senatorial Elections.

Orders

  • Application dismissed.
  • No order as to costs.

Rules and key headnotes

Jurisdiction of East African Court of Justice — Treaty Interpretation — Limits on Review of National Court Decisions
The East African Court of Justice's jurisdiction is restricted to matters of Treaty interpretation under Article 27(1) of the Treaty for the Establishment of the East African Community. The Court has no jurisdiction to interpret the provisions of a Partner State's Constitution or to review decisions of national courts for correctness, as this would exceed the limits of powers conferred by the Treaty under Article 9(4). The Court's jurisdiction is limited to reviewing whether a Partner State's national law complies with the Treaty, not to determining the correctness of constitutional interpretation by national courts.
Interim Orders — Prima Facie Case — Serious Question to be Tried
In considering an application for interim orders, a court must be satisfied that the claim is not frivolous or vexatious but presents a serious question to be tried, without necessarily delving into the determination of a prima facie case which could entail resolution of questions of law and fact upon which the substantive suit hinges. Where the underlying reference does not raise matters within the court's jurisdiction, the application for interim orders cannot be said to raise serious questions for determination by that court.
Interim Orders — Irreparable Injury — Burden of Proof
An applicant for interim orders must demonstrate that it would suffer irreparable injury which would not be adequately compensated by an award of damages if the orders are not granted. Where an applicant fails to identify the specific injury it stands to suffer or to address whether such injury could be adequately compensated by damages, the requirement of irreparable injury is not satisfied.
Interim Orders — Balance of Convenience — Constitutional Rights and Duties
In determining the balance of convenience in an application for interim orders, a court must weigh the applicant's need for protection against the respondent's need to be protected against injury resulting from being prevented from exercising legal rights. Where an applicant seeks to postpone a constitutional election but fails to demonstrate that postponement would stem civic disorder or that greater injury would result from holding the election, the balance of convenience favours allowing the respondent to fulfil its constitutional mandate and duty to organize elections within the prescribed timeframe.

Legislation cited (17)

  • Treaty for the Establishment of the East African Community Article 5(3)(f)
  • 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(1)(a)
  • Treaty for the Establishment of the East African Community Article 8(1)(c)
  • Treaty for the Establishment of the East African Community Article 8(5)
  • Treaty for the Establishment of the East African Community Article 9(4)
  • Treaty for the Establishment of the East African Community Article 23(3)
  • 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 30(3)
  • Treaty for the Establishment of the East African Community Article 39
  • Treaty for the Establishment of the East African Community Article 46
  • Treaty for the Establishment of the East African Community Article 137(1)
  • East African Court of Justice Rules of Procedure Rule 21
  • East African Court of Justice Rules of Procedure Rule 68(3)
  • Constitution of Burundi Article 103

Cases cited (8)

  • Timothy Alvin Kahoho v Secretary General of EAC and Another (Application No. 5 of 2012)
  • Prof. Peter Anyang' Nyongo and 10 Others v Attorney General of the Republic of Kenya and 3 Others (Reference No. 1 of 2006)
  • Giella v Casman Brown (1973) EA 358
  • American Cyanamid v Ethicon Ltd [1975] AC 396
  • E. A. Industries v Trufoods [1972] EA 420
  • Mbidde Foundation and Another v Secretary General of the East African Community and Another (Consolidated Application No. 5 & 10 of 2014)
  • Attorney General of Kenya v Independent Medical Legal Unit (EACJ Appeal No. 1 of 2011)
  • Samuel Mukira Muhochi v Attorney General of the Republic of Uganda (EACJ Reference No. 5 of 2011)

Full judgment

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

East African Civil Society Organisations Forum v A.G. of Burundi and Ors. (Application 5 of 2015) [2015] EACJ 94 (29 July 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.