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Masenge v A.G. of Republic of Burundi (Reference 9 of 2012)

East African Court of Justice · [2014] EACJ 11 · 2014 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 alleging infringement of Treaty provisions by the Republic of Burundi
Decision
Declaration granted that occupation of applicant's land is unlawful and infringes Treaty; orders for demolition and restitution refused as outside Court's jurisdiction

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 determine whether a Partner State's actions infringe Treaty provisions on good governance and rule of law. The Court found that the Republic of Burundi's failure to protect the applicant's registered land ownership rights violated Articles 6(d) and 7(2) of the EAC Treaty, which require adherence to good governance, rule of law, and protection of human rights. However, the Court declined to grant orders for demolition or restitution, holding these fall outside its jurisdiction.

Outcome

Declaration granted that occupation of applicant's land is unlawful and infringes Treaty; orders for demolition and restitution refused as outside Court's jurisdiction

Facts

The applicant held a registered land title for 24 hectares in Gihanga Commune, Bubanza Province, Burundi, issued by the Registrar of Land Titles on 9 October 2009. His land was occupied and exploited by local officials including the Mayor of Gihanga Commune and supporters. The applicant complained to the Minister of Home Affairs on 12 March 2012 seeking restoration of his possession, but received no response after the three-month legal deadline elapsed. The applicant then filed a reference to the East African Court of Justice alleging that the Government of Burundi's failure to protect his property rights violated the EAC Treaty provisions on good governance and rule of law.

Issues

  1. Whether the Court has jurisdiction to entertain the Reference.
  2. Whether the failure by the Minister of Home Affairs to order the demolition and/or stop all construction on the Applicant's land is an infringement of Articles 3(3)(b), 6(d) and 7(2) of the Treaty.
  3. Whether the Applicant is entitled to the orders sought.

Orders

  • A declaration that the occupation and exploitation of the Applicant's property is unlawful and is an infringement of Article 6(d) of the Treaty for the Establishment of the East African Community.
  • Prayers (b), (c) and (d) disallowed.
  • Applicant awarded half of the taxed costs to be borne by the Respondent.

Rules and key headnotes

Preliminary Objections — Procedural Requirements — Time Limits
A preliminary objection on limitation of time must be raised by pleading and before the scheduling conference under Rule 53 of the Court's Rules, with not less than seven days' written notice to the Court and other parties under Rule 41. A preliminary objection raised for the first time in written submissions after the scheduling conference, without allowing the other party to prepare an appropriate response, breaches Rule 41 and cannot be entertained.
East African Court of Justice — Jurisdiction — Interpretation and Application of Treaty
The East African Court of Justice has jurisdiction under Article 27(1) of the Treaty to interpret and apply provisions of the EAC Treaty, including determining whether actions and decisions of a Partner State infringe Articles 6(d) and 7(2) concerning good governance, rule of law, and protection of human rights, even where the underlying dispute concerns land ownership.
East African Court of Justice — Jurisdiction — Limits on Remedial Powers
The East African Court of Justice lacks jurisdiction to grant orders for demolition of constructions, restitution of property, or declarations of full property rights, as such orders fall outside the Court's jurisdiction under Articles 23, 27 and 30 of the Treaty and belong to the national courts of Partner States.
Land Titles — Evidentiary Value — Certificate of Title as Conclusive Evidence
A land title issued by the Registrar of Land Titles in conformity with the applicable Land Act is conclusive evidence of the registered proprietor's ownership and should be protected under constitutional provisions and international conventions guaranteeing the right to property, absent legal proceedings seeking nullification of the title.
Property Rights — State Obligations — Good Governance and Rule of Law
The failure by appropriate authorities of a Partner State to ensure protection of a citizen's registered land property rights is fundamentally inconsistent with the State's obligations under Articles 6(d) and 7(2) of the EAC Treaty to observe principles of good governance, adherence to the rule of law, and promotion and protection of human rights, and constitutes an infringement of those Treaty provisions.

Legislation cited (18)

  • Treaty Establishing the East African Community Article 3(3)(b)
  • Treaty Establishing the East African Community Article 6(d)
  • Treaty Establishing the East African Community Article 7(2)
  • Treaty Establishing the East African Community Article 8(4)
  • Treaty Establishing the East African Community Article 23(1)
  • Treaty Establishing the East African Community Article 27(1)
  • Treaty Establishing the East African Community Article 30(1)
  • Treaty Establishing the East African Community Article 30(2)
  • 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 41
  • East African Court of Justice Rules of Procedure Rule 53
  • East African Court of Justice Rules of Procedure Rule 63(1)
  • African Charter on Human and Peoples' Rights Article 1
  • African Charter on Human and Peoples' Rights Article 2
  • African Charter on Human and Peoples' Rights Article 14
  • Burundi Land Act 2011 Article 317
  • Constitution of the Republic of Burundi Article 36

Cases cited (9)

  • Attorney General of the Republic of Uganda & Another v Omar Awadh & 6 Others (EACJ Appeal No. 2 of 2012)
  • Independent Medical Unit v Attorney General of Kenya & 4 Others (EACJ Reference No. 3 of 2010)
  • East African Center for Trade Policy and Law v Secretary General of the EAC (EACJ Reference No. 9 of 2012)
  • Attorney General of Rwanda v Plaxeda Rugumba (EACJ Appeal No. 1 of 2012)
  • James Katabazi & 21 Others v Secretary General of EAC & Attorney General of Uganda (EACJ Reference No. 1 of 2007)
  • Peter Anyang' Nyong'o & Others v Attorney General of Kenya & Others (EACJ Reference No. 1 of 2006)
  • Samuel Mukira Muhochi v Attorney General of Uganda (EACJ Reference No. 5 of 2011)
  • Ddungu v Marc Widmer & Another (Civil Appeal No. 38 of 2009)
  • Festus Mwanzi Lonzi v Roseline Muthoni Muburu (Environmental & Land Case No. 606 of 2011)

Full judgment

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

Masenge v A.G. of Republic of Burundi (Reference 9 of 2012) [2014] EACJ 11 (18 June 2014)
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.