Wakilii

East African Civil Society Organizations Form v Attorney General of the Republic of Burundi and Others (Appeal No.1 of 2020)

East African Court of Justice · [2021] EACJ 34 · 2021 Appeal Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from the First Instance Division of the East African Court of Justice following dismissal of Reference No. 2 of 2015 challenging a Constitutional Court of Burundi decision on presidential term limits
Decision
Appeal partially succeeded on the jurisdictional and substantive Treaty violation issue but remedies declined due to mootness following subsequent events in Burundi

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

The Appellate Division held that the First Instance Division erred in disavowing itself of jurisdiction to determine whether the Constitutional Court of Burundi's decision violated the EAC Treaty. The Court found that under international law, states bear responsibility for wrongful acts of all organs including the judiciary, and that the B.E. Chattin standard requiring outrageous judicial acts no longer reflects modern international law. The Court held that the Constitutional Court's decision violated Articles 5(3)(f), 6(d), 7(2), 8(1)(a) and (c) and 8(5) of the Treaty. However, the Court declined to grant remedies on grounds of mootness, as subsequent events including President Nkurunziza's death and constitutional changes had overtaken the matter.

Outcome

Appeal partially succeeded on the jurisdictional and substantive Treaty violation issue but remedies declined due to mootness following subsequent events in Burundi

Facts

In April 2015, fourteen Burundian Senators sought interpretation from the Constitutional Court on whether President Pierre Nkurunziza, previously elected twice, was eligible for a third term. On 5 May 2015, the Constitutional Court ruled he was eligible. The Appellant filed Reference No. 2 of 2015 challenging this decision as violating the Arusha Peace Accord and the EAC Treaty. The First Instance Division dismissed the Reference in 2016; the Appellate Division remitted it for hearing on merits in 2018. The First Instance Division again dismissed it in December 2019, holding it lacked jurisdiction to review the Constitutional Court's decision. President Nkurunziza was elected for a third term in July 2015, announced he would not seek a fourth term in 2018, and died in June 2020 after new elections had taken place.

Issues

  1. Whether the First Instance Division erred in law in finding that the impugned decision of the Constitutional Court of Burundi was not in violation of Articles 5(3)(f), 6(d), 7(2), 8(1)(a) and (c) and 8(5) of the East African Community Treaty.
  2. Whether the parties are entitled to the remedies sought.

Orders

  • Appeal partially allowed.
  • Issue No. 1 answered in the affirmative — the First Instance Division erred in finding no Treaty violation.
  • Issue No. 2 answered in the negative — no remedies granted on grounds of mootness.
  • Each party to bear its own costs.

Rules and key headnotes

International Courts — Jurisdiction — State Responsibility for Judicial Acts
An international court established by treaty has jurisdiction to determine whether decisions of domestic courts, including constitutional courts, violate the state's international treaty obligations, and such jurisdiction extends to evaluating the substance of domestic judicial decisions against treaty provisions.
State Responsibility — Attribution of Judicial Acts
Under international law, a state bears responsibility for internationally wrongful acts of all its organs including the judiciary, without differentiation between executive, legislative, or judicial acts, and without requiring that the judicial act be shown to be outrageous, done in bad faith, or with wilful neglect.
Treaty Interpretation — Domestic Law and International Obligations
Where a complaint alleges that state action is inconsistent with international law and thereby breaches a treaty obligation to observe the rule of law, an international court has an inescapable duty to consider the internal law of the state and apply its own appreciation thereof to the treaty provisions, and is not bound by determinations of national courts on the import of such internal law.
Rule of Law — Definition and Application
The rule of law principle refers to governance under which all persons, institutions and entities including the state itself are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms, requiring adherence to supremacy of law, equality before the law, accountability, fairness, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness, and procedural and legal transparency.
Constitutional Interpretation — Foundational Instruments
When interpreting a constitution, courts must have regard to the foundational instruments that inspired its drafting, and whoever violates the main constitutional principles of such foundational instruments cannot claim to respect the constitution itself.
Mootness — Supervening Events
A case becomes moot when a controversy initially existing at the time the suit was filed is no longer live or current due to a change in law, the status of parties, or acts of parties that dissolve the dispute, and courts may decline to grant remedies where subsequent events have overtaken the matter and the decision would have no practical effect on the rights of parties.
International Law — Obsolescence of Chattin Standard
The standard in B.E. Chattin v United Mexican State limiting state responsibility for judicial acts to those showing outrage, bad faith, wilful neglect of duty, or manifestly insufficient governmental action is no longer expressive of modern international law.

Legislation cited (19)

  • 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 23
  • Treaty for the Establishment of the East African Community Article 27
  • Arusha Peace and Reconciliation Agreement for Burundi 2000 Article 7(3) of Protocol II
  • Constitution of Burundi Article 96
  • Constitution of Burundi Article 302
  • Constitution of Burundi Article 228
  • East African Court of Justice Rules 2019 Rule 120
  • East African Court of Justice Rules 2019 Rule 127(1)
  • Vienna Convention on the Law of Treaties 1980 Article 26
  • ILC Draft Articles on Responsibility of States for Internationally Wrongful Acts Article 1
  • ILC Draft Articles on Responsibility of States for Internationally Wrongful Acts Article 2
  • ILC Draft Articles on Responsibility of States for Internationally Wrongful Acts Article 4
  • ILC Draft Articles on Responsibility of States for Internationally Wrongful Acts Article 35

Cases cited (20)

  • East African Civil Society Organizations' Forum v Attorney General of Burundi and Two Others (Appeal No. 4 of 2016)
  • B. E. Chattin (USA) v United Mexican State (1927) UNRIAA Vol IV 282
  • Unity Dow v Attorney General [1992] (Court of Appeal of Botswana)
  • Economic Freedom Fighters v Speaker of the National Assembly and Others [2016] ZACC 11
  • Manariyo Desire v Attorney General of Burundi (Appeal No. 1 of 2017)
  • Salvador Commercial Company UNRIAA Vol XV 455
  • Nobert Zongo and Others v Burkina Faso (Application No. 013 of 2011)
  • Wilfred Onyango Nganyi and Others v United Republic of Tanzania (Application No. 6 of 2013)
  • Cuscani v United Kingdom (Application No. 32771/96) ECtHR
  • Henry Kyarimpa v Attorney General of Uganda (Appeal No. 6 of 2014)
  • Elettronica Sicula S.P.A. (ELSI) ICJ Reports 1989 15
  • Baranzira Raphael and Another v Attorney General of Burundi (Reference No. 15 of 2018)
  • Attorney General v African Network for Animal Welfare (Appeal No. 3 of 2011)
  • Alcon International v Standard Chartered Bank of Uganda and 2 Others (Appeal No. 3 of 2013)
  • Flaminio Costa v ENEL (Case 6/64) [1964]
  • Gerhard Köbler v Republik Österreich [2003] ECR I-10239
  • Burundi Journalists Union
  • Lohe Issa Konate
  • Ida Robinson Smith Putnam
  • Borowski v Attorney General of Canada [1989] SCR 342

Full judgment

↓ Download PDF

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

East African Civil Society Organizations Form v Attorney General of the Republic of Burundi and Others (Appeal No.1 of 2020) [2021] EACJ 34 (25 November 2021)
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.