East African Court of Justice Arusha, 24thJanuary 2018: As the First Instance Division extra ordinary sessions set off, it dismissed the Application filed by the five (5) non-profit, civil society organizations for interim orders against the Attorney General of the Republic of Burundi and the Secretary General of the East African Community, pursuant to Article 39 of the EAC Treaty (regarding the interim orders) and Rule 73 of this Court’s Rules of procedure.
The Applicants’ case is that they were banned by the Minister of Home Affairs and their bank accounts frozen by the Prosecutor General, pursuant to Ministerial Ordinance No.530/1922, where upon they filed a Reference challenging the legality of the Ordinance for violating provisions of the Burundi Presidential Decree NO1/11 of 1992, as well as the principle of good governance.
The Application was seeking stay of the operation of the Ordinance, a cancellation thereof by the Minister of Home Affairs Burundi and the quashing of the Prosecutor General’s decision to freeze the Applicants’ bank accounts.
In its ruling the Court said that the Conditions to grant of an interlocutory injunction are; first, an Applicant must show a prima facie case with a probability of success, secondly, if the Applicant might suffer irreparable injury, which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience.
The Court on the issue of irreparable damages, the court said that it did not find in the supporting affidavit that establishes the specific injury the Applicants stood to suffer, and if let alone whether or not such injury could or could not be compensated by an award of damages.
The court further stated that, in the absence of any averment of the inability of the Respondents to recompense the Applicant and the absence of proof of the injury, the Court was not satisfied as to inadequacy of damages as a relief to the Applicants in the event that they merge successful in the reference (main case). Furthermore the court said that it is where there is doubt as to the adequacy of the respective remedies in damages available as to either party or both, that the question of balance of convenience arises.
In the result, the Court declined to grant the orders sought and hence dismissed
However, the court held that it is clear that, the Reference does indeed raise pertinent legal question for interrogation by the Court, as to the legality to the Ministerial Ordinance vz Burundian national laws, as well as the Treaty. The Court further added that it is quite clear the Reference raises questions to the Ordinance‘s compliance with the principles of good governance and rule of law that are encapsulated in Article 6(d) and 7(2) of the Treaty. The Court therefore stated that it was satisfied that the present Application does raise a serious triable issue and directed that the main case Reference be fixed for hearing forthwith.
Present in court to receive the ruling was Mr. Donald Deya representing the Applicants. The Ruling of the Court was read by Hon. Justice Monica Mugenyi, Principal Judge of the First Instance Division in open Court.
The Applicants include;
- Forum Pour Le Reforncement De La Societe Civile
- Association Burundaise Pour La Protection Des Droits Humains Et Des Personnes Detenues
- Forum Pour La Conscience Et Le Development
- Reseau Des Citoyens Probes
Notice for editors
Article 39 ( Interim Orders)- it provides that; The Court may, in a ca se refer red to it , make any interim order s or issue any direct ions which it consider s necessary or desirable. Interim order s and
other direct ions issued by the Court shall have the same effect ad interim as decisions of the Court.
rule 73 of the Court’s rules of procedures; states that (1) Pursuant to the provisions of Article 39 of the Treaty, the Court may in any case before it upon application supported by affidavit issue interim orders or directions which it considers necessary and desirable upon such terms as it deems fit.
About the EACJ
The East African Court of Justice (EACJ or ‘the Court’), is one of the organs of the East African Community established under Article 9 of the Treaty for the Establishment of the East African Community. Established in November 2001, the Court’s major responsibility is to ensure the adherence to law in the interpretation and application of and compliance with the EAC Treaty.
Arusha is the temporary seat of the Court until the Summit determines its permanent seat. The Court’s sub-registries are located in the respective National Courts in the Partner States.