The Burundi government has lost a case it filed to challenge the election of the current East African Legislative Assembly (Eala) Speaker Martin Ngoga.
The East African Court of Justice (EACJ) threw out the case as Burundi did not present Eala attendance records and other key documents pertaining to Mr Ngoga’s disputed election.
Presiding judges said that the records would have established whether there was requisite quorum during the Eala speaker’s election.
“Quite clearly, those honourable (Eala) members were more competent witnesses to attest the circumstances in which that election was conducted than Mr Nestor Kayobera (counsel for the plaintiffs), who was not present in the House at the time,” panel leader Justice Monica Mugenyi said.
Judges Mugenyi, Charles Nyachae and Charles Nyawello struck down the affidavit evidence produced by the Burundi.
Mr Nestor Kayobera, the counsel representing Burundi, had argued that Mr Ngoga was elected Speaker at a December 19, 2017 session of the Eala despite the absence of members of the assembly from both Burundi and Tanzania.
Mr Kayobera argued that proper quorums for such elections are an obligation under Article 57 and rule 12(1) of the Eala Rules of Procedure.
The rule says “the quorum of the House or of the Committee of the Whole House shall be half of the elected members and such quorum shall be composed of at least one third of the elected members from each partner state”.
Mr Kayobera, who was accompanied by Mr Vyzigiro Diomede, state attorney from the Burundi Attorney General’s Office, had asked the court to order a re-election.
But according to testimony from Dr Anthony Kafumbe representing the EAC Secretary General, under Part III of the Eala Rules of Procedure and rule 6(9) (c) on the election of the Speaker, it is not mandatory for every member to vote and that lawmakers from Burundi and Tanzania had liberty not to vote.
Rule 6(9) (c) states that “after all members who wish to vote have voted, the Clerk shall in full view of the members present, empty the ballot box and immediately count the ballot paper contained in it”.
Dr Kafumbe said quorum was only applicable when the House was duly constituted and that the presence of the Eala members from Burundi and Tanzania in the precincts of the House comprised the voting quorum.
He also argued that their participation in the nomination of candidates in the election was tantamount to their presence for voting.
Dr Kafumbe added that since “members of the assembly have accepted the Speaker and a lot of business is going on, it would therefore not be helpful (at this stage) to nullify the election and order a fresh election.”
Costs of suit
Dr Kafumbe also called for the case to be dismissed with costs to the Burundi government. But the judges ruled that as long as the applicants’ evidence had been struck off the court’s record, each party in the case would bear its own costs.
“Given the intrinsic circumstances of this case, therefore, we do exercise our discretion under Rule 111 to decline to grant an award of costs,” Justice Mugenyi said as she read the judgment.
The EACJ Rule 111 says costs in any proceedings shall follow the event unless the court shall for good reasons otherwise order.
The judges added that the reliefs requested by the Burundi government were also no longer tenable after it conceded that its allegations regarding the Counsel to the community and the Eala Clerk be removed from the application.
Speaking after the ruling, Eala member Fred Mukasa Mbidde called for “a separation of powers respected by partner states.”
“This kind of destruction should stop…we are the only voice of the people and yet this is the people-centred integration process. Don’t subject it to a barrage of applications, appeals and suits are not anything that will illuminate the future course of the assembly,” Mr Mbidde said.