Burundi let off arrest, detention case hook

THE First Instance Division of the East African Court of Justice has dismissed two cases filed by Burundi residents against the Republic of Burundi and Secretary General of the East African Community over the arrest and detention on suspicion of murdering two people in Burundi.

The court dismissed the case by a Burundian, Hilaire Ndayizamba, who alleged that on October 15, 2009, he was arrested and detained on suspicion of murdering one Ernest Manirumva.

He further alleged that following his arrest, he was not charged within the time prescribed by the Burundi Penal Code Procedure and has since been subjected to arbitrary and unlawful detention by the agents of the Government of Burundi.

The applicant claimed that the acts/ omissions by the Government of Burundi were an infringement of Article 6 (d) of the Treaty since they violated the fundamental principles of the East African Community.

In its decision, the court noted that the matter was filed out of time as prescribed by the Article 30 (2) of the Treaty for the Establishment of the East African Community; which provides a two-month time limit of the enactment or action complained of coming to the knowledge of the complainant.

The court said that the applicant’s claims were well known as by June 15, 2011 but chose to file the matter only on February 23, 2012. It said no reason was given as to why the time to file the case did not comply with Article of the Treaty.

It further added that, it has rejected the concept of legal continuing violation and adopted for a strict interpretation of Article 30 (2) of the Treaty to protect the principle of legal certainty and therefore the argument of the applicant revolving around the notion of continuing violation of the applicant’s rights does not stand at all.

However, the Court said that the failure by the Respondent to present the Applicant before the competent Court within the prescribed time is unlawful and thus, an infringement of Article 6 (d) and 7 (1) of the Treaty.

Again that since the preventive detention has never been confirmed as required by the Burundian law, there is continuing illegal and unlawful detention notwithstanding subsequent condemnations of the applicant to life imprisonment and therefore Article 30 (2) of the Treaty regarding time computation of the time to institute proceedings cannot apply.

In the case filed by Professor Francois Nyamoya, a resident of Bujumbura, an advocate and spokesperson of one of the Opposition Political Parties in Burundi; he sued the Republic of Burundi and the Secretary General over his arrest and detention on July 28, 2011.

Professor Nyamoya claimed he was arrested on the orders of the Public Prosecutor of Burundi for alleged subornation of witnesses in a criminal matter which involved the murder of one, Dr Allan Kassim, in a case that was instituted sometime in 2003. The Applicant alleged his detention was an infringement of Article 6(d) and 71 (1) (d) of the Treaty.

The Court also dismissed this claim on grounds of the time limitation factor. It said that it is evident from the supporting document of their respective pleadings, that the acts complained of (the arrest, detention and alleged denial of freedom of movement of the Applicant) happened between July 28, 2011 and February 17, 2012 when he was released.

It is further common ground that the instant Reference was lodged in this court on October 14, 2011 and amended on August 31, 2012. The Court therefore concluded that the Applicant filed his Reference out of the prescribed time and that action consequently spells out the obvious.

That the instant case has not complied with the strict provisions of Article 30 (2) of the Treaty and the Court emphatically held that it is time-barred.

The Court also found and held that it has jurisdiction to entertain the matter and make declarations that the decision of keeping Professor Francois Nyamoya in detention as mentioned above is an infringement of Article 6 of the Treaty for the Establishment of the East African Community and that it is null and void.

It further ruled that the Secretary General (2nd Respondent) failed to fulfill his obligations under Articles 29 and 71 of the EAC Treaty; and that the Applicant has a full right to enjoy his freedom according to the judgment of Tribunal of First Instance of Bujumbura.

However, regarding the court’s order that Professor Francois Nyamoya be immediately released without any conditions, the court declined that it does not have the jurisdiction to make that order.

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