10. Having declared that it manifestly lacks jurisdiction to consider the Application, the Court decided to
transfer the latter to the African Commission relying on Article 6 (3) of the Protocol, which provides that "the
Court may consider cases or transfer them to the Commission".
11. The practice of such a transfer was established by the Court in its decision regarding its jurisdiction in
respect of the abovementioned Application N° 002/2011. The Court upheld the practice when, at the same
session, it dealt with Applications N° 005/2011 ( Daniel Amare & Mulugeta Amare vs Mozambique Airlines
& Mozambique) and N° 006/2011 ( Association des Juristes d'Afrique pour la bonne gouvernance vs Côte
d'Ivoire), and also declared that it manifestly lacks jurisdiction to consider such applications.
12. In my view, the transfer to the African Commission of an application in respect of which the Court found
that it manifestly lacks jurisdiction is not founded in law. I hold that this transfer does not appear to be
consistent with Article 6 of the Protocol, when interpreted according to the general rules of interpretation as
set out in the 1969 Vienna Convention on the Law of Treaties.
13. Indeed, the heading of this Article 6 ("Admissibility of Cases") strongly suggests that the action
available to the Court, in paragraph 3, applies primarily to the consideration of the admissibility of a case
over which the jurisdiction of the Court has already been established. Unfortunately, the "travaux
preparatoires" of the Protocol do not shed any light on the meaning to be attributed to the said paragraph 3;
the first version of this paragraph read that "the Court may itself consider cases or transfer them to the
Commission".2
14. When read in that context, this paragraph allows the Court either to consider, on its own, the
admissibility of an application which is within its jurisdiction or to entrust consideration of the said
admissibility to the African Commission. In the latter assumption, the Court would be assigning to the
Commission a broader responsibility beyond that envisaged in Article 6 (1).
15. Indeed, Article 6 (1) only allows the Court to "request the opinion of the Commission" on the
admissibility of a "case instituted under Article 5 (3)" of the Protocol. Article 6 (3), for its part, authorises the
Court to ask the Commission to itself make a determination on the admissibility of an application. Absence
of any reference to Article 5 (3) of the Protocol further suggests that consideration of admissibility could
apply not only to cases filed by an individual or a non-governmental organisation but also to those filed by a
State Party to the Protocol or an African inter-governmental organisation.
16. Apart from this latter proposition, my interpretation of Article 6 (3) is corroborated by Rule 119 of the
Rules of the Commission, entitled "Admissibility under Article 6 of the Protocol", and worded as follows:
1. "Where, pursuant to Article 6 of the Protocol, the Commission is requested to give its opinion on the admissibility of a communication
pending before the Court or where the Court has transferred a communication to the Commission, it shall consider the admissibility of this
matter in accordance with Article 56 of the Charter and Rules 105, 106 and 107 of the present Rules.

2. Upon conclusion of the examination of the admissibility of the communication referred to it under Article 6 of the Protocol, the
Commission shall immediately transmit its opinion or its decision on the admissibility to the Court".

17. This provision of the Rules of the Commission leaves no doubt as to the fact that in both situations
envisaged in Article 6 (1) and (3) of the Protocol, the Commission considers that it is in duty bound to
establish the admissibility of an application relating to a matter over which the Court has declared that it
had jurisdiction; otherwise it would be difficult to understand why Rule 119 (2) provides for the prompt
transmission to the Court of the Commission's opinion or "decision". The prompt transmission to the Court
of the Commission's decision on the admissibility of an application would indeed be meaningless if the
Court were no longer to play any role in the handling of the case; the underlying idea is that once it has
deemed an application admissible, the Court may then embark on a consideration of its merits.
18. Unlike those of the Commission, the Rules of the Court do not provide real clarification on the purpose
of the transfer envisaged in Article 6 (3) of the Protocol. Rule 29 (5) of the Rules of the Court indeed reads:
"a) Where the Court decides to transfer a case to the Commission pursuant to Article 6 (3) of the Protocol, it shall transmit to the Commission a
copy of the entire pleadings so far filed in the matter accompanied by a summary report. At the request of the Commission, the Court may also
transmit the original case file.

b) The Registrar shall immediately notify the parties who were before the Court about the transfer of the case to the Commission".

19. The language used in this provision ("case", "parties", "the entire pleadings", "summary report")
suggests that there is a case pending before the Court. One would also note that where the Court
manifestly lacks jurisdiction, there should not be much in the case file. Furthermore, even if the Court's
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