001/08_SO Michelot Yogogombaye v Senegal
(Separate Opinion - Fatsah Ouguergouz)
SEPARATE OPINION OF JUDGE FATSAH OUGUERGOUZ
1. I am in agreement with the views of my colleagues in regard to the conclusions reached by the Court on
the question of its jurisdiction and on that of the costs and expenses of the case, and consequently I have
voted in favour of the said conclusions. However, I believe that these two issues deserved to be developed
in a more comprehensive manner.
2. The Applicant indeed has the right to know why it has taken nearly one year between the date of receipt
of his application at the Registry and the date on which the Court took its decision thereon. Senegal, on the
other hand, has the right to know why the Court chose to make a solemn ruling on the application by
means of a Judgment, rather than reject it de plano with a simple letter issued by the Registry. The two
Parties also have the right to know the reasons for which their prayers in respect of the costs and
expenses, respectively, of the case, have been rejected; the Applicant should also know why his prayer in
this regard was addressed on the basis of Rule 30 of the Interim Rules of the Court (hereinafter referred to
as the "Rules") on Legal Costs, whereas the Court could have equally, if not exclusively, treated this prayer
on the basis of Rule 31 on Legal Assistance.
3. However, only the question of the jurisdiction of the Court seems to me to be sufficiently vital, to lead me
to append to the Judgment, an exposé of my separate opinion in regard to the manner in which this
question should have been treated by the Court.
4. In the present case, the question of the jurisdiction of the Court is relatively simple. It is that of the
Court's "personal jurisdiction" or "jurisdiction ratione personae" in respect of applications brought by
individuals. This is governed by Article 5 (3) of the Protocol to the African Charter on Human and Peoples'
Rights on the Establishment of an African Court on Human and Peoples' Rights (hereinafter referred to as
"Protocol") and Article 31 (6) of the said Protocol which set forth the modalities by which a State shall
accept the said jurisdiction.
5. However, paragraph 31 of the Judgment states, not without ambiguity, that for the Court to hear a case
brought directly by an individual against a State Party, there must be compliance with, inter alia, Article 5(3)
and Article 34 (6) of the Protocol.
6. If the only issue referred to here is that of the jurisdiction of the Court, then the expression "inter alia"
introduces confusion because it lends itself to the understanding that the said jurisdiction is predicated on
one or several other conditions that have not been spelt out. However, in my view, there are no other
conditions to the jurisdiction of the Court in the case than that which has been specified in Article 34 (6) of
the Protocol, reference to which was made in Article 5 (3).
7. Nevertheless, if the expression "inter alia" also refers to the conditions for admissibility of the application,
there would no longer be any logical linkage between paragraph 31 and paragraph 29 of the Judgment in
which the Court indicated that it would start by considering the question of its jurisdiction. It would be
particularly difficult to understand the meaning of paragraph 39 in which the Court gives its interpretation of
the word "receive" as used in Article 34 (6) of the Protocol. In paragraph 39, the Court indeed points out
that the word "receive" as applied to the application should not be understood in its literal meaning as
referring to "physically receiving" nor in its technical sense as referring to "admissibility"; rather it refers to
the "jurisdiction" of the Court to "examine" the application; that is to say, its jurisdiction to hear the case, as
it states very clearly in paragraph 37 in fine of the Judgment.
8. Read in light of paragraph 39 of the Judgment, paragraph 31 should therefore be interpreted as referring
exclusively to the question of the Court's jurisdiction. Since the meaning of the expression "inter alia" is
unclear, the Court had better do away with it.
9. Even if the expression is removed therefrom, paragraph 31 of the Judgment, and also paragraph 34
thereof, pose the question of the Court's jurisdiction in terms that do not faithfully reflect the Court's liberal
approach to the treatment of the application.
10. In the foregoing two paragraphs of the Judgment, the question of the Court's jurisdiction is indeed
posed by the exclusive reference to Article 5(3) and Article 34 (6) of the Protocol. However, Article 5
essentially deals with the question of "Access to the Court" as the title clearly indicates. Thus, the question
of the personal jurisdiction of the Court in this case cannot but receive the response set forth in paragraph
37 of the Judgment, i.e., that since Senegal has not made the declaration provided for in Article 34 (6) of
the Protocol, the Court has no jurisdiction to hear cases instituted directly against this State by individuals.
1

Select target paragraph3