Amir Adam v. The Republic of Sudan (paras. 8&9)).
5. On occasions, the Court had even admitted, in its own words, that it was "evident" that it manifestly
lacked the jurisdiction" to entertain the applications in question (see the English version of the Decisions on
the Convention Nationale des Syndicats du Secteur Education (CONASYSED) v. The Republic of Gabon,
(paras. 11), Timam Amir Adam v. The Republic of Sudan (para. 8), Delta International Investments SA. Mr
AGL de Lang and Mme de Lang v The Republic of South Africa (para. 8) and Emmanuel Joseph Uko v.
The Republic of South Africa (para. 10).
6. In the instant case, the Court has also decided to proceed with the judicial consideration of the
Application filed by Mr. Falana against the African Union. It however decided to do so not by way of an
expedited or summary consideration which would result in the adoption of a simple "decision" but rather
through the judicial process as provided in the Rules of Court, in other words by rendering a judgment after
an inter partes hearing comprising a written and an oral phase. The case of Michelot Yogogombaye v. The
Republic of Senegal is the only other matter dealt with in this manner.
7. In the following paragraphs, I will provide the reasons why I am of the opinion that Mr. Falana's
Application ought not to have been disposed of by way of a judicial process nor, lesser still, through the
"full" judicial consideration which it was accorded as from the time it was filed with the Registry slightly
more than sixteen (16) months ago.
8. Subsidiarily, I will also state why, having voted for the operative paragraph of the judgment. I do not
subscribe to the reasons contained in this judgment particularly, with regard to the legal basis on which the
Court relies in determining that it lacked jurisdiction. I will in addition be addressing two issues of procedure
which are important in my view.
9. It seems to me obvious that Applications may only he filed against a "State"; which State must as a
matter of course be party to the Protocol: this stems from both the letter and the spirit of the Protocol. Thus.
Article 2 of the Protocol does provide that the Court shall complement the protective mandate of the
African Commission on Human and Peoples' Rights conferred upon it by the Charter: whereas, according
to the African Charter, only "States" parties to the said Charter may be the subject of communications filed
before the African Commission. The Protocol to the African Charter establishing the Court was not meant to
deviate from that principle as evidenced in Articles 3(1), 5(1. littera c)), 7, 26, 30, 31 and 34(6), all of
which make no reference to any other entity but the "State" ("States concerned", "State against which a
complaint is filed-, "States concerned"2 , "States Parties").
10. Article 5 of the Protocol does make reference, other than the State, to the African Commission, African
inter-governmental organizations, individuals and non-governmental organizations, but for the sole purpose
of authorizing them to file an application against a State Party and not for them to become potential
"Respondents" before the Court.
11. Since the African Union is an Inter-Governmental organization, it is not therefore, according to the
Protocol as it is now, an entity against which an Application may be filed before the Court or which might
become party to the Protocol. To my knowledge the only international organization which might in the near
future, be a party before a Court in a matter regarding human rights violations is the European Union: talks
are indeed underway to allow the European Union to accede to the European Convention on Human Rights
and thus be subject to applications before the European Court of Human Rights.3
12. Since the Protocol is unequivocal with regard to entities that may be sued before the Court, it would
have sufficed for its provisions to he interpreted in accordance with "the ordinary meaning to be given to the
terms (of that instrument) in their context and in the light of its object and purpose" (Article 31(1)
× General rule of interpretation - 1. A treaty shall be interpreted in good faith in accordance with the
ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and
purpose.
of the 1969 Vienna Convention on The Law of Treaties) and to reject the said application de plano (that is,
without the need for a Judicial decision) on the basis of the Court's manifest lack of personal jurisdiction.
13. The Court however chose to hear and rule on the Application by following the process earmarked in the
Rules, in other words to consider it via inter partes proceedings and rendering a judgment in a public sitting.
In so doing, the Court placed itself in a difficult position as evidenced by the relative fragility and circular
nature of its reasoning in paragraphs 56 to 73 of the Judgment to which I do not subscribe for the reasons
set out in paragraphs 9, 10, 11 and 12 above.
14. Before delving into the reasoning of the Court that led to the finding that it lacked jurisdiction. I would
like to consider two issues of procedure which seem of importance to me.
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