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East African Civil Society Organisations Forum v Attorney General of the Republic of Burundi and Others (Reference 2 of 2015)

East African Court of Justice · [2019] EACJ 32 · 2019 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Reference under the EAC Treaty challenging a decision of the Constitutional Court of Burundi, remitted for determination on merits following appellate ruling on jurisdiction
Decision
Reference dismissed; no violation of the EAC Treaty found

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 review decisions of domestic courts for compliance with Treaty obligations under international law principles of state responsibility, but such review is distinct from appellate review. The Court ruled that the Constitutional Court of Burundi's decision allowing President Nkurunziza's candidacy did not constitute an outrageous judicial act showing bad faith or willful dereliction of duty, and therefore did not engage state responsibility under the Treaty. The Reference was dismissed.

Outcome

Reference dismissed; no violation of the EAC Treaty found

Facts

The Applicant challenged a decision of the Constitutional Court of Burundi (Case No. RCCB 303) which validated President Pierre Nkurunziza's nomination as a candidate in Burundi's 2015 presidential election. The Applicant contended that this violated the Arusha Peace and Reconciliation Agreement for Burundi, 2000, which limits the President to two terms, as well as Article 96 of Burundi's Constitution. The Burundi Constitutional Court had held that Article 302 of the Constitution created a special mandate by indirect suffrage that was an exception to Article 96's direct universal suffrage provision, and that Nkurunziza's first term by indirect election did not count toward the two-term limit. The matter came to the EACJ on remittal following an appellate decision that the Court had jurisdiction to determine whether the impugned decision violated the EAC Treaty.

Issues

  1. Whether or not the impugned decision of the Constitutional Court of Burundi was in violation of Articles 5(3)(f), 6(d), 7(2), 8(1)(a) and (c), and 8(5) of the EAC Treaty.
  2. Whether the Applicant is entitled to the remedies sought.

Orders

  • The Reference is dismissed.
  • Each Party to bear its own costs.

Rules and key headnotes

International Judicial Review — Jurisdiction of Regional Courts to Review Domestic Court Decisions — State Responsibility under International Law
Under international law principles of state responsibility, the conduct of any State organ, including judicial organs, is attributable to the State. Regional courts may review decisions of domestic courts not through appellate review, but through international review to determine whether the State has complied with its international treaty obligations.
International Review versus Appellate Review — Distinguishing Characteristics
International review of domestic court decisions differs fundamentally from appellate review. International review is characterized by: a bipolar power dynamic where neither court has complete authority over the other; the application of distinct legal perspectives (domestic versus international law); trial de novo from the perspective of international obligations; and decisions that are not binding on domestic courts as precedent. International courts cannot set aside domestic decisions but can only scrutinize them for compliance with treaty obligations.
State Responsibility for Judicial Acts — Standard for Wrongful Judicial Conduct
A cause of action for international review of a domestic judicial decision arises only where the decision depicts outrage, bad faith, or willful dereliction of judicial duty, and where no or manifestly insufficient action has been taken by the appropriate judicial disciplinary body to redress such judicial outrage. Mere disagreement with judicial reasoning or interpretation of domestic law does not invoke state responsibility.
Deference to Domestic Apex Courts — Scope of International Judicial Intervention
Due respect must be accorded to judicial decisions emanating from domestic apex courts. An international court should intervene only where such decisions reflect a clear and notorious injustice visible at a mere glance. International courts are restricted to examining domestic court decisions' adherence to domestic law only to the extent that such compliance demonstrates adherence to the State's international obligations.
Constitutional Interpretation — Rule of Law Principle — Application of Domestic Laws by Regional Courts
Where an action complained of is alleged to be inconsistent with municipal law and thereby a breach of a State's Treaty obligation to observe the rule of law, a regional court has the duty to consider the internal law of that State in determining whether the action amounts to a Treaty violation. However, the court approaches the facts from the perspective of international law and the State's treaty obligations rather than domestic law alone.
Separation of Powers — Judicial Independence — Distinction between Judicial and Governmental Action
The principle of separation of powers is the cornerstone of an independent judiciary and indispensable to judicial effectiveness. Manifestly insufficient governmental action cannot be equated to wrongful judicial action. Nation states are obliged under international law to organize their state apparatus, including the structure and operation of judicial power, in a manner compatible with their international obligations.
Burden and Standard of Proof in International Claims — State Responsibility
In international claims, the party asserting a fact must establish it. Claims against a State involving charges of exceptional gravity must be proved by evidence that is fully conclusive. The same standard applies to proof of attribution of wrongful acts to the State.

Legislation cited (8)

  • Treaty for the Establishment of the East African Community Articles 5(3)(f), 6(d), 7(2), 8(1)(a), 8(5), 23(1), 27(1), 29, 30, 30(2), 35(3), 38, 67, 71, 124(1), 143, 146, 147
  • East African Court of Justice Rules of Procedure, 2013 Rules 1, 24, 72(2), 111(1)
  • Arusha Peace and Reconciliation Agreement for Burundi, 2000 Article 7(3) of Protocol II
  • Constitution of the Republic of Burundi Articles 96, 231, 237, 302
  • Constitution of the Republic of Burundi Preamble
  • Law No. 1/07 of 1st December 2000 (Burundi)
  • Electoral Code of Burundi Articles 186, 190
  • International Law Commission Articles on State Responsibility Article 4(1)

Cases cited (11)

  • James Katabazi & 21 Others v Secretary General of the East African Community & Another (Reference No. 1 of 2007)
  • East African Civil Society Organisations Forum v Attorney General of Burundi & Others (Appeal No. 4 of 2016)
  • Henry Kyalimpa v Attorney General of Uganda (Appeal No. 6 of 2014)
  • Raphael Baranzira & Another v Attorney General of the Republic of Burundi (Reference No. 15 of 2015)
  • British American Tobacco Ltd v Attorney General of the Republic of Uganda (Reference No. 7 of 2017)
  • 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
  • Military and para-military Activities in and against Nicaragua (Nicaragua vs. United States of America), Judgment, ICJ Reports 1984, p.437, para. 101
  • 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
  • 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
  • Corfu Channel (United Kingdom vs. Albania), Judgment, ICJ Reports 1949, p.17

Full judgment

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East African Civil Society Organisations Forum v Attorney General of the Republic of Burundi and Others (Reference 2 of 2015) [2019] EACJ 32 (3 December 2019)
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.