only documents relating to the oral proceedings mentioned in the Rules are provided for in Rule 48 and are
produced by the Registry; these are "Verbatim Records" which, after being signed by the President and the
Registrar, are deemed to be a true reflection of the submissions made by the parties during the public
hearings"11
24. The documents produced by the parties during the hearings may not in any circumstance be
considered as the record of the pleadings made by the parties during the oral proceedings; same as they
may not be considered as being materials of the written proceedings in that they were tendered after the
pleadings had been closed on 24 June 2011 (see paragraph 12 or the Judgment) and whereas they had
not been exchanged between the parties as required by the adversarial nature of the proceedings.
25. It therefore seems to me unfortunate that, during its deliberations, the Court made use of documents of
uncertain legal status when considering the arguments canvassed by the parties; paragraph 55 or the
Judgment further the reproduces the conclusions of the Respondent as they appear on pages 2 and 3 of
the document submitted on 22 March 2012. I am of the opinion that the tendering by the parties of what
appears to be a new written document in the course of the oral proceedings is creating, confusion and only
complicates the task of the Court. These documents differ in content from the Verbatim Records of the
hearings and must also he translated into the working languages of the Court: further, the Judges are not in
a position to practically acquaint themselves with their contents during the hearing nor consider them
seriously for the purpose of the deliberations which follow immediately the oral proceedings.
26. Let me now consider the reasoning, of the Court which led it to conclude that it lacked the jurisdiction to
hear and to determine the Application. I would start by observing that in the instant case the Court did not
adopt the approach that had hitherto been the case when it considered the Application filed by Mr Efoua
Mbozo`o Samuel against an organ of the African Union namely the Pan African Parliament (see its
Decision of 30 September 2011); in that case, the Court indeed avoided pronouncing itself on its personal
jurisdiction as it ought to have done and rejected the Application by implicitly relying on its lack of material
jurisdiction.
27. The Court's reasoning in paragraphs 58 to 63 of the Judgment arc intended to establish that Articles
5(3) and 34(6) of the Protocol, when read together. require that direct access to the Court by an individual
be subject to the deposit of a special declaration by the Respondent State; these paragraphs are not
therefore of particular interest to the issue at hand considering that the Application had not been filed
against a State Party. The Court does clearly concede this when it concludes that "there may be other
grounds on which the Court may find that it has no jurisdiction" ( paragraph 63). That finding did not
however prevent the Court from ultimately invoking Articles 5(3) and 34(6) above in concluding that it
lacked the jurisdiction to entertain the Application (see paragraph 73 as well as operative paragraph 75 of
the Judgment).
28. The rest of the Court's reasoning is intended to address the Applicant's argument according to which
the African Union could be brought before the Court "as it is the one which promulgated and adopted the
Protocol as a corporate community on behalf of its Member States" ( paragraphs 25 and 64). In so doing,
the Court establishes 1) that the African Union is an international organization with a legal personality
separate from that of its Member States ( paragraph 68) and 2) that it cannot therefore be subject to the
obligations under the Protocol as it is not party to that instrument ( paragraph 71). Those are two
conclusions that are self-evident.
29. The Court however deemed it necessary to add without explaining why, he that "the mere fact that the
African Union has a separate legal personality does not imply that it can be considered as a representative
of its Member States with regard to obligations that they undertake under the Protocol" ( paragraph 71).
This assertion, in all likelihood. is intended to address the Applicant's argument according to which "it is
clear that the African Union as a whole is representing the African people and their governments and
therefore is competent to defend the actions brought against the Member States" ( paragraph 25).
30. That assertion by the Court is equally self-evident and adds nothing to the reasoning of the Court; on
the contrary, it blurs the reasoning. It is indeed difficult to imagine how the African Union, an international
organization with a legal personality separate from that of its Member States, could be "a representative [of
the latter] with respect to obligations that they undertake under the Protocol".
31. The main obligation incumbent on States Parties to the Protocol is that of appearing before the Court to
answer to alleged violations of human rights as guaranteed by the African Charter or be any other
instrument dealing with human rights to which they are parties. How can the African Union be brought
before the Court on behalf of one or more Member States Parties to the Protocol to alleged violations of
their conventional obligations in the field of human rights?
4