Burundian Journalists Union v Attorney-General of the Republic of Burundi

JurisdictionDerecho Internacional
CourtEast African Court of Justice
JudgeLenaola,Mugenyi,Ntezilyayo
Date15 May 2015

East African Court of Justice.

(Lenaola, Deputy Principal Judge; Ntezilyayo and Mugenyi, Judges)

Burundian Journalists Union
and
Attorney-General of the Republic of Burundi1

Human rights — Right to freedom of press — Right to freedom of expression — Whether provisions of Burundian Law No 1/11 of 4 June 2013 restricting freedom of press and freedom of expression — Democracy

International tribunals — East African Court of Justice — Jurisdiction — Articles 23 and 27(1) of Treaty for the Establishment of the East African Community, 1999 — Precedence of decisions of the East African Court of Justice on interpretation of Treaty

Relationship of international law and municipal law — Treaties — Treaty for the Establishment of the East African Community, 1999 — Interpretation of Treaty — Obligations of States Parties under Articles 6(d) and 7(2) of Treaty — Principles of good governance — Whether Burundian Press Law violating Articles 6(d) and 7(2) of Treaty

Summary:2The facts:- The Burundian Journalists Union (“the applicant”) instituted proceedings against the Attorney-General of the Republic of Burundi (“the respondent”) alleging that on 4 June 2013 Burundi had enacted a law that restricted press freedom and the right to freedom of expression (“the Press Law”) in violation of its obligations to uphold the principles of democracy, rule of law, accountability, transparency and good governance under Articles 6(d) and 7(2) of the Treaty for the Establishment of the East African Community, 1999 (“the Treaty”)3.

The applicant argued that the Press Law introduced a restrictive framework for the regulation of print and web media content, required journalists to disclose the identities of confidential sources that provided information on

offences such as State security, public order and defence secrets, imposed disproportionate fines and penalties for press offences, and provided too broad a scope for the application of the right of reply or correction, which would be likely to lead to continuous interference with the work of the media by public authorities. The applicant also opposed the Press Law's conferral of broad powers upon the National Communications Council (“the Council”) because it contended that the President and Minister of Information appointed and controlled the Council and intended to use it as a censorship body for the government. The applicant alleged that the Council also lacked independence because of its powers to act as “prosecutor, judge and enforcer” in press-related matters, and specifically opposed the Council's power to authorize or disallow the making of any film directed on Burundian territory, its broad discretion over the withdrawal and denial of journalists' accreditation, and its power to impose fines

The applicant asserted that the Press Law had been widely criticized for its failure to comply with democratic standards by the United Nations Secretary-General, the African Union Special Rapporteur for Freedom of Expression and Access to Information, the United Nations Office of the High Commissioner for Human Rights, and various international organizations such as Human Rights Watch, Reporters Without Borders and Transparency International.

The applicant informed the Court that La Maison de la Presse du Burundi had challenged the constitutionality of the Press Law in the Constitutional Court of Burundi but noted that, at the time the application was filed, the Court had not yet rendered its decision. The applicant emphasized that the pendency of the Constitutional Court decision would have no effect on the case before the Court because there was no provision under the Treaty requiring an applicant to exhaust local remedies before approaching the Court. As such, the applicant requested the Court to examine the Press Law against the Treaty in order to determine whether Burundi had breached its Treaty obligations.

The respondent argued that the Press Law was in conformity with Articles 6(d) and 7(2) of the Treaty and had been lawfully enacted into law by the Parliament of Burundi as the representative of its people. It contended that the application was premature and ill-conceived because only the Constitutional Court of Burundi could rule on the legality of the Press Law and it had not yet delivered its judgment.

On 7 January 2014, the Constitutional Court of Burundi delivered its ruling, declaring the Press Law constitutional except for certain provisions, which it struck down. The applicant argued that the Constitutional Court's ruling only related to the constitutionality of the Press Law and did not bar the East African Court of Justice (“the Court”) from determining whether the Press Law complied with Burundi's Treaty obligations. The respondent, on the other hand, submitted that the Constitutional Court's ruling was final and could not be reconsidered or interfered with by any other court.

Held (unanimously):—The Court had jurisdiction. Articles 19 and 20 of the Press Law violated Articles 6(d) and 7(2) of the Treaty.

(1) Articles 23(1) and 27(1) of the Treaty provided for the primacy of the Court's jurisdiction over the interpretation of the Treaty. The question before the Court was whether the Press Law met the requirements under Articles 6(d) and 7(2) of the Treaty, not whether the Press Law complied with the Constitution of Burundi. The Court had jurisdiction to determine the matter (paras. 39–44).

(2) Articles 6(d) and 7(2) of the Treaty were justiciable and not merely aspirational. Freedom of the press and freedom of expression were essential components of democracy, accountability and transparency. The respondent had an obligation to ensure that its national laws promoted the objectives of the Treaty (paras. 75–84).

(3) Tests of reasonableness, rationality and proportionality were applied in determining whether the Press Law was compliant with the Treaty (paras. 85–6).

(4) The Press Law only allowed the Council to “refuse or withdraw accreditation from journalists who abuse[d] the facilities granted to them”. Freedom of the press was not an absolute right in any democracy. The applicant had failed to show how the provisions relating to accreditation were in violation of Articles 6(d) and 7(2) (paras. 88–92).

(5) Certain provisions of the Press Law were unduly restrictive of the rights to freedom of expression and freedom of the press, such as the provisions under Article 19 restricting the dissemination of information on the stability of the currency, offensive articles or reports regarding public and private persons, information that might harm the credit of the State and the national economy, diplomacy, scientific research and reports of commissions of inquiry by the State (paras. 93–102).

(6) Some provisions of the Press Law were reasonable and simply reflected standards of professional journalism, such as the requirement that journalists publish accurate information. In the marketplace of ideas, a person prejudiced by inaccurate reporting should be entitled to a right of reply or correction (paras. 103–6).

(7) The protection of journalistic sources was a basic condition of press freedom. Without such protection, the public might be deterred from assisting the press to gain information on matters of public interest. There were less restrictive ways of dealing with the issues covered under Article 20 that would not require journalists to disclose confidential sources. Article 20 of the Press Law did not comply with the Treaty (paras. 107–11).

(8) The applicant had failed to show that the penalties prescribed by the Press Law were disproportionate to the gravity of the relevant offences (paras. 112–16).

The text of the judgment of the Court commences on the following page.

A. INTRODUCTION

1. This Reference was filed on 30 July 2013 by the above-named Applicant and was brought under Articles 6(d), 7(2), 27(1) [and] 30(1) of the Treaty for the Establishment of the East African Community (“the Treaty”) as well as Rule 24 of the East African Court of Justice Rules of Procedure. Certain orders and declarations are sought in the Reference which we shall reproduce later in this Judgment.

2. The Applicant describes itself as a legal person under Burundian Law registered by an ordinance dated 8 July 2013, although its Articles of Association were adopted on 3 October 2009. Amongst its stated objectives are the encouragement of the media to defend freedom of the press and social justice as well as freedom of expression.

3. The Applicant's address is Boulevard du 28 Novembre, Robert 1, Avenue de Mars, BP 6719, Bujumbura, Burundi and at the time of hearing [the Applicant] was represented by Mr Donald Omondi Deya, Advocate of No 3 Jandu Road, Corridor Area, PO Box 6065, Arusha, Tanzania.

4. The Respondent is the Attorney General of the Republic of Burundi sued in his capacity as such and also as Minister for Justice and Holder of the Seal, and his address is PO Box 1880, Bujumbura, Burundi. Mr Neston Kayobera, Director of Judicial Organization in the Respondent's office, at all times during the proceedings appeared on his behalf.

5. By order of this Court issued on 15 August 2014 in EACJ Application No 2 of 2014, nine non-governmental organizations were joined as Amici Curiae. They are Forum pour le Renforcement de la Société Civile, the International Press Institute, La Maison de la Presse du Burundi, Forum pour la Conscience et le Développement, PEN Kenya Centre, Pan African Lawyers Union, PEN International, Reporters sans Frontières, and the World Association of Newspapers and News Publishers.

6. They are all represented by Mr Vital Neston Nshimirimana, Advocate, and his address is 6 Avenue de la mission, BP 1745, Bujumbura, Burundi.

7. The Amici Curiae's roles in the proceedings were limited to the filing of submissions only.

B. BACKGROUND

8. It is agreed that the Reference concerns Law No 1/11 of 4 June 2013, amending Law No 1/025 of 27 November 2003 regulating the press in Burundi (“the Press...

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