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The Applicant came to Court seeking the determination and application of Article (6) of the Treaty for establishment of the East African Community and claiming that his arrest and subsequent detention were acts in violation and infringement of the same.
Appearing before the Court, Mr. Richard Onsongo, Counsel for the Applicant, submitted that all the three arms of the government of Burundi (Executive, Legislative and Judicially) all came together to deny Prof. Nyamoyo his freedom of movement which is to date limited as he cannot even leave Burundi if he wishes to do so.
He added that, the acts of the government of Burundi infringed the Treaty and that the supremacy of the law is paramount regarding Article 30 (1) which provides the mandate for a legal or natural person who is resident in any of the Partner State to refer any such matter to Court for determination.
Mr. Onsongo also urged that it was the duty of the EAC Secretary General (2nd Respondent) to keep her eyes and ears open and do investigations on the performance of the Partner States with regard to their Treaty obligations, including adherence to the Rule of Law. He emphasized that the Court has the jurisdiction to determine the matter and grant remedies sought with costs.
The Attorney General of Burundi represented by Mr. Nestror Kayobera, Director, Judicial Organization in the Ministry of Justice Republic of Burundi opposed the Applicant’s submission and urged that Prof. Nyamoya was arrested on 28 July 2011 with three others and released 17 February 2012 and that he is free and a strong member of the opposition and doing his business freely.
He added that there is no violation of the Treaty and the detention of the accused was done within judicial procedures and processes and therefore not in violation of the Treaty.
Hon. Wilbert Kaahwa Counsel To the Community representing the Secretary General of the East African Community submitted that the matter was time – barred (filed out of time) according to Article 30 (2) of the Treaty which provides a time limit of two months of the enactment, publication, directive, decision or action complained of for a case to be filed in court.
However he said the Secretariat has taken some measures on the issue when it came to her knowledge and urged the Court to dismiss the matter with costs.
The Court said it would deliver the judgement on notice.
The matter was before the bench of three Judges, Hon. Lady Justice Stella Arach Amoko, Deputy Principal Judge, Hon. Mr.Justice John Mkwawa and Hon. Mr. Justice Isaac Lenaola
The East African Community is governed by a treaty under which Article 6(d) provides for good governance including adherence to the principles of democracy, the rule of law, accountability, transparency, social justice, equal opportunities, gender equality, as well as the recognition, promotion and protect ion of human and people’s rights in accordance with the provisions of the African Charter on Human and Peoples’ Rights;
According to Article 7(2), Partner States undertake to abide by the principles of good governance, including adherence to the principles of democracy, the rule of law, social justice and the maintenance of universally accepted standards of human rights.