East African Court Dismisses Property Rights Case, Critiques Burundi’s Judiciary
In a judgment adopted on December 2, 2016, the East African Court of Justice (EACJ) did not find violations of the principle of the rule of law or of the right to property due to insufficient evidence provided by the complainant, but did analyze the conduct of Burundian courts and its own jurisdiction to review their decisions. See East African Court of Justice, Manariyo Desire v. Attorney General of Burundi, First Instance Division, Ref. No. 8 of 2015, Judgment of 2 December 2016. The burden, the EACJ held, was on the applicant, Manariyo Desire, to provide “fully conclusive” evidence of the alleged violations of the Treaty for the Establishment of the East African Community (EAC Treaty), Protocol on the Establishment of the East African Community Common Market (the Protocol), and African Charter on Human and Peoples’ Rights (African Charter). See id. at paras. 8-10, 85, 99. Based on the complainant’s allegations, the Court did conclude that Burundi’s courts had taken a “cavalier” approach to the rule of law, but could not find any rights violations in this regard because the complainant failed to provide the full record of the domestic proceedings. See id. at paras. 41-41, 80-84. The EACJ took the opportunity to further define principles of good governance and rule of law under the EAC Treaty, particularly emphasizing that the latter requires judicial authorities to provide reasoning for their rulings, and to discuss its own authority to review national courts’ decisions. See generally id.
The applicant, Manariyo Desire, purchased three parcels of land in Bujumbura, Burundi in 1997. See id. at para. 5. He secured a certificate of title in the land and subsequently sold the land in three parts. See id. One of the initial sellers of the land in 1997 brought legal action against Desire in 2010, claiming title to one of the parcels, and in 2012 the trial court ruled in the seller’s favor without giving Desire the opportunity to cross-examine witnesses or present oral submissions to the tribunal. See id. at para. 6. In 2013, the appellate court upheld the lower court’s decision, despite recognizing that the sale agreement was authentic, and Desire’s appeal to the Cassation Chamber of the Supreme Court was unsuccessful. See id. at paras. 7-8.
Desire, therefore, petitioned the EACJ, alleging that the national courts failed to uphold the principles of the rule of law, good governance, and human rights. See id. at paras. 8-10. Specifically, Desire alleged that Burundi courts failed to acknowledge the sale agreement’s legal and evidentiary value, to follow proper procedure during trial, and to provide reasons for the judicial decisions. See id. at para. 37. The applicant argued that these failures created legal uncertainty regarding property rights in Burundi and violated his rights. See id.
The Attorney General of Burundi, the respondent, sought dismissal, arguing that the application was not timely under Article 30(2) of the EAC Treaty, that the EACJ does not have jurisdiction to address the Supreme Court of Burundi’s decision pursuant to Article 27(1) of the Treaty, and that it does not have appellate jurisdiction over the decisions of the Supreme Court of a Member State. See id. at paras. 12-14.
The EACJ found that the claim was not time barred. Article 30(2) of the EAC Treaty allows a complaint to be filed within two months “of the day in which it came to the knowledge of the complainant.” Although Desire submitted his complaint several months after the date of the domestic court’s final decision, he filed the complaint within two months from when he personally received the decision. See id. at paras. 16-21.
The EACJ found that it has jurisdiction over national court decisions and actions. Citing an International Court of Justice advisory opinion that stated that any conduct of an organ of a State should be regarded as an act of that State, the EACJ found that Burundi could be held accountable for the conduct of its judicial organ, which in this case was the Burundi Supreme Court. See id. at paras. 30-31. However, judicial decisions of national courts, the EACJ noted, may only be categorized as in violation of the EAC Treaty if the decisions reflect “blatant, notorious and gross miscarriages of justice.” See id. at paras. 34, 36.
As the EACJ has jurisdiction over infringements of the EAC Treaty, it may review national laws if the complaint alleges that the law or its application violates a provision of the EAC Treaty. See id. at paras. 25-26. The EACJ reiterated its understanding that if the complainant alleges that the application of a national law is inconsistent with or violates the principle of the rule of law, the EACJ may consider the national law. See id. at para. 35.
The EACJ emphasized the importance of upholding due process at the national level and the apparent failure of the Burundi court to do so. The EACJ noted that courts are expected to render judgments objectively, independently, and with integrity, which requires, according to the EACJ, “the capacity of judicial officers to deliver coherent and logical decisions.” See id. at para. 39.
The EACJ determined it had jurisdiction over the Burundi court’s judgment because the applicant alleged it constituted a prime facie violation of the EAC Treaty principles. The Burundi court’s judgment, the EACJ commented, “depict[ed] a cavalier approach to an extremely serious judicial function,” was “an unreasoned judgment,” and failed to convey the scope of the issue before it. See id. at para. 40. Therefore, the EACJ concluded that due to the lack of legal reasoning on which the conclusions were based, the national court’s judgment conveyed “a blatant disregard for due process . . . [and an] indifference to the universal standards of judicial practice.” See id. at para. 41. Describing the national court’s actions as “a clear injustice,” the EACJ ultimately held that the national court’s actions amounted to a prima facie “wrongful practice.” See id. at paras. 41-42.
In response to arguments from the Attorney General that the EACJ cannot act as a higher court of appeal to review national courts’ decisions, the EACJ noted that its review was limited to ensuring compliance with EAC Member States’ treaty obligations, rather than questioning national courts’ interpretation of domestic law. See id. at paras. 50-54, 56-59.
Desire alleged that the Burundi Supreme Court’s ruling violated the principles of good governance and the rule of law under the EAC Treaty because it ignored his documentation granting him a right in the property, it failed to provide legal certainty regarding property rights, and it did not provide an opportunity for Desire to cross examine witnesses. See id. at paras. 37, 81. Additionally, Desire argued that through these failures on the part of the court, his right to property was violated under the EAC Treaty, the Protocol, and the African Charter. See id. at para. 94.
The EACJ dismissed the assertion that Burundi violated the principle of good governance enshrined in the EAC Treaty since, it concluded, Burundi has the necessary governance framework for the resolution of disputes, namely its national courts. See id. at para. 73. The EACJ defined good governance as the mere existence of “mechanisms, processes and institutions through which the citizens may exercise their legal rights.” See id. at paras. 72-73. Not only do the courts exist and the applicant utilized them, but also, the EACJ asserted, the “improper discharge of the said institution’s function” is not relevant in considering principles of good governance. See id. at para. 73.
Regarding the principle of rule of law, the Court ruled that there was insufficient evidence to support the applicant’s claims that application of property laws in Burundi is inconsistent with international human rights standards and unequal in enforcement. See id. at paras. 75-76. Desire did not provide the court with the record of proceedings nor the laws being invoked, which limited the Court’s analysis, and the EACJ could not verify procedural irregularities, including the alleged inability to cross-examine witnesses. See id. at paras. 80-81. An applicant before the EACJ must submit “fully conclusive” evidence. See id. at para. 82.
The EACJ, therefore, held that “although [it] did find a cavalier judicial approach was depicted,” it could not find that Burundi violated the principles of the rule of law under the EAC Treaty due to insufficient proof that the Supreme Court displayed “unfairness, bias, or arbitrariness in the application of the law as an indication of lack of independence or procedural impropriety.” See id. at paras. 80, 84.
The Court, though, did opine that a lack of legal reasoning constitutes “willful neglect of the court’s duty” and is “an unacceptable affront to recognized standards of judicial conduct” because it does not “coherently lay down stare decesis to guide the lower courts.” See id. at para. 83.
The EACJ next considered Desire’s allegation that the domestic courts’ actions violated his property rights. The EACJ noted that Desire did not identify a relevant law for the Court to prove his property rights under national law had been violated. He cited no law that specifically addressed the validity of the type of property sale agreement at issue in his case. Moreover, the EACJ noted that – upon his subsequent resale of the parcels – Desire legally lost title to the property, leading the Court to question whether he had any rights related to the land. See id. at paras. 92-93. Accordingly, the EACJ could not find a violation of Desire’s property rights under the Protocol and the African Charter. See id. at paras. 87-91.
Remedies and Conclusion
Finally, based on its conclusions, the Court dismissed the complaint, but did, because of the “grave importance to the advancement of Community law,” order that each party bear its own costs. See id. at paras. 94-99.