008/11_DO Ekollo Alexandre v. Nigeria and Cameroon
(Dissenting Opinion - Fatsah Ouguergouz)
DISSENTING OPINION OF JUDGE FATSAH OUGUERGOUZ
1. The purpose of the present dissenting opinion is to explain the reasons which led me to vote against the
Court's decision to transfer the matter to the African Commission on Human and Peoples' Rights, pursuant
to Article 6 (3) of the Protocol; incidentally, it seeks to clarify my position in regard to the statement made in
the first operative paragraph which I voted for.
2. I am of the opinion that the Court manifestly lacks jurisdiction to consider Mr. Ekollo Moundi Alexandre's
Application and I therefore voted for the first operative paragraph of the decision. However, on the Court's
manifest lack of jurisdiction, I am of the view that the Court ought not to have considered the Application
judicially and should not have adopted a decision on the matter. I have already expounded amply on this
issue of procedure which touches on the judicial policy of the Court in my separate opinion attached to the
15 December 2009 Judgement in the matter of Michelot Yogogombaye vs The Republic of Senegal.
3. The instant decision of the Court is formally distinct from a "Judgement" by virtue of the fact that it was
signed by only the President and the Registrar of the Court and adopted by way of a "simplified" procedure
without any involvement of the two States against which the Application was brought.
4. The adoption of the format of a "decision" on its lack of jurisdiction, rather than a judgement, was
decided by the Court at its 21st Ordinary Session (6-17 June 2011), when it considered Application No. N°
002/2011 ( Soufiane Ababou vs. Republic of Algeria), from which I abstained in compliance with the
requirements of Article 22 of the Protocol and Rule 8 (2) of the Rules of Court. When it considered this
Application, the Court had specifically decided that when an application does not seem, prima facie, to
stand any chance of success, it should not be referred to the State against which it has been filed.
5. In the present case, the Court decided not to transmit Mr. Ekollo Moundi Alexandre's Application to
Cameroon and Nigeria, not even to inform them of the filing of this application. The Court also decided not
to inform the President of the African Union Commission and other States parties to the Protocol about the
filing of the Application.
6. I am of the view that in the present case the Application ought to have been dismissed de plano through
a simple letter from the Registry to the Applicant as of the day after 13 June 2011, when the Legal Counsel
of the African Union Commission confirmed to the Court that the Republic of Cameroon was not party to
the Protocol and that the Federal Republic of Nigeria, though party to the Protocol, had not made the
Declaration as provided in Article 34 (6) of the Protocol.
7. Indeed, the issue of the Court's jurisdiction ought to be devoted, on its own, a formal decision of the
Court only in case of a "dispute" within the meaning of Article 3 (2) of the Protocol, in other words when an
objection based on jurisdiction is raised pursuant to Rule 52 of the Rules of Court. In all cases of a
"manifest" lack of jurisdiction of the Court, found after a judicial handling of the application by a small team
of judges (judge-rapporteur or a committee of two or three judges) or which may, de lege ferenda, be
arrived at after a strictly administrative handling of the Application by the Registry, a simple letter addressed
by the latter to the Applicant should suffice. That would enable the Court to spare its resources and,
considering that it does not sit on a full-time basis, to expedite action on such applications.
8. Furthermore, the adoption by the Court, as in the instant case, of a decision on the lack of jurisdiction
whereas the States concerned have not been served with copies of the Application nor have they been
informed of its filing is challengeable in principle; all the more so in the instant case as the Application was
mentioned on the Court's website upon receipt. The failure to transmit the Application to the States
concerned further deprived Nigeria (Cameroon not being party to the Protocol) of the possibility of
accepting the jurisdiction of the Court by way of a forum prorogatum (on this matter, see my separate
opinion above).
9. In this respect, any application filed against a State party to the Protocol which has not yet made the
optional declaration, should be transmitted, for information purposes, to that State to enable it to accept the
jurisdiction of the Court to hear the matter1 . Since the current practice of the Registry is to register on the
general list all cases submitted to the Court, logically all applications relating to those cases should
systematically be communicated to the States concerned and published on the website of the Court. The
registration of a case on the general list of a court means that the latter is validly "seized" and that the case
is pending before the said jurisdiction (on this matter, see paragraphs 14, 15 and 16 of my
above-mentioned separate opinion).
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