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Forum Pour le Renforcement de la Societe Civile and Ors. v A.G. of Burundi and Anor (Application 16 of 2016)

East African Court of Justice · [2018] EACJ 31 · 2018 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for interim orders arising from Reference No. 12 of 2016 challenging the legality of a ministerial ordinance banning civil society organisations
Decision
Application dismissed; substantive Reference to proceed to hearing

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court dismissed the application for interim orders. While the underlying Reference raised a serious triable issue concerning the legality of the ministerial ordinance banning the applicant civil society organisations, the applicants failed to establish that they would suffer irreparable injury that could not be adequately compensated by damages. The Court held that in the absence of proof that the respondents could not pay damages and without evidence of specific irreparable injury, interim relief was not warranted.

Outcome

Application dismissed; substantive Reference to proceed to hearing

Facts

Five Burundian civil society organisations were banned by the Minister of Home Affairs pursuant to Ministerial Ordinance No. 530/1922, and their bank accounts were frozen by the Prosecutor General. The organisations filed Reference No. 12 of 2016 challenging the legality of the Ordinance for violating Burundi Presidential Decree No. 1/11 of 1992 and the principle of good governance under the EAC Treaty. They simultaneously filed an application for interim orders seeking a stay of the Ordinance, its cancellation, and the quashing of the decision to freeze their accounts. The applicants argued they were leading human rights organisations collaborating with international mechanisms such as the ICC to document human rights abuses in Burundi. The First Respondent alleged the organisations had been behind the 2015 insurrection and attempted coup, destabilising the country.

Issues

  1. Whether the Applicants established a serious triable issue warranting the grant of interim orders.
  2. Whether the Applicants would suffer irreparable injury if interim orders were not granted.
  3. Whether damages would be an adequate remedy for any injury suffered by the Applicants.
  4. Whether the balance of convenience favoured the grant of interim orders.

Orders

  • Application for interim orders dismissed.
  • Costs of the application to abide the outcome of the Reference.
  • Reference No. 12 of 2016 to be fixed for hearing forthwith.

Rules and key headnotes

Interim Orders — Test for Grant — Serious Triable Issue
For the grant of interim orders under Article 39 of the EAC Treaty, the court must be satisfied that there is a serious triable issue to be tried, meaning the substantive suit discloses a cause of action with substance and reality, without requiring the applicant to establish a prima facie case with probability of success.
Judicial Review — Cause of Action under EAC Treaty Article 30(1)
A cause of action arises under Article 30(1) of the EAC Treaty in two scenarios: first, where the illegality per se of a law or action of a Partner State or EAC Institution is alleged; secondly, where an infringement of any Treaty provision by such law or action is alleged. A claimant is not required to show a right or interest that was infringed or damage suffered; it is sufficient if it is alleged that the matter complained of infringes a provision of the Treaty in a relevant manner or violates national law.
Rule of Law — Non-Compliance with National Law as Treaty Violation
Non-compliance with a Partner State's national laws amounts to a violation of the principle of the rule of law enshrined in Article 6(d) of the EAC Treaty and is, to that extent, a violation of the Treaty.
Interim Orders — Irreparable Injury — Adequacy of Damages
If damages in the measure recoverable at common law would be an adequate remedy and a respondent would be in a position to pay them, no interim injunction should normally be granted. The inability of a respondent to recompense an applicant for injury renders moot the question of the adequacy of damages at the interlocutory stage.
Interim Orders — Proof of Irreparable Injury — Evidence Required
A finding of fact on irreparable injury can only be arrived at on the basis of evidence properly adduced before the court through affidavit, and not on the basis of statements from the Bar, however plausible or logical they might be. An applicant must establish by evidence the specific injury they stand to suffer and that such injury cannot be adequately compensated by damages.
Interim Orders — Balance of Convenience — When Consideration Arises
The question of balance of convenience arises only where there is doubt as to the adequacy of the respective remedies in damages available to either party or to both. Where no such doubt has been established, the court need not proceed to consider the balance of convenience.

Legislation cited (7)

  • Treaty for the Establishment of the East African Community Article 39
  • Treaty for the Establishment of the East African Community Article 30(1)
  • 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 27
  • Burundi Presidential Decree No. 1/11 of 1992 Articles 30, 36, 37, 38
  • Ministerial Ordinance No. 530/1922

Cases cited (10)

  • Giella v Cassman Brown (1973) EA 258
  • Prof. Peter Anyang' Nyongo and 10 Others v Attorney General of the Republic of Kenya and 3 Others (EACJ Application No. 1 of 2006)
  • Timothy Alvin Kahoho v Secretary General of the EAC (EACJ Application No. 5 of 2012)
  • Mbidde Foundation Ltd and The Rt. Hon. Margaret Zziwa v Secretary General of the East African Community (Consolidated Applications 5 & 10 of 2014)
  • American Cyanamid Company v Ethicon Limited [1975] AC 396
  • The Siskina [1979] AC 210
  • Simon Peter Ochieng and Another v Attorney General of the Republic of Uganda (EACJ Reference No. 11 of 2013)
  • Sitenda Sebalu v Secretary General of the East African Community and Others (EACJ Reference No. 1 of 2010)
  • Plaxeda Rugumba v Attorney General of the Republic of Rwanda (EACJ Reference No. 8 of 2010)
  • Samuel Mukira Mohochi 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.

Forum Pour le Renforcement de la Societe Civile and Ors. v A.G. of Burundi and Anor (Application 16 of 2016) [2018] EACJ 31 (23 January 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.