jurisdiction ratione personae, ratione materiae, ratione loci or ratione temporis were highly questionable and
that said jurisdiction had been considered in detail by the Court, the part of the case file pertaining to the
establishment of the Court's jurisdiction would be of no particular interest for the Commission and should
not therefore be communicated to it.
20. My conclusion is therefore that, by relying on Article 6 (3) of the Protocol in transferring to the African
Commission a case over which it has declared it manifestly had no jurisdiction, the Court deviated from the
initial purpose of that provision; that same conclusion applies even more to the possible transfer to the
Commission of an application in respect of which the Court would find, by way of a judgement, that it lacks
jurisdiction following a classical contradictory procedure (see Rule 52 (6) of the Rules of the Court).
21. It is however not on the basis of that conclusion alone that I voted against the decision to transfer the
case to the Commission. More fundamental in my view is the fact that the Court gave no reasons to justify
its decision in the instant case; the requirement that reasons shall be given for the Court's decisions is
indeed consubstantial with its judicial function.
22. In the instant case, as in the three cases mentioned above, the Court was of the opinion that it was
"appropriate" to transfer the case in light of "the allegations set out in the Application", without further
clarification. It ought to have set out the reasons which led it to consider that the allegations made in the
Application warranted such a transfer or to explain why the latter was "appropriate".
23. Article 6 (3) of the Protocol no doubt provides the Court with a choice between two possible solutions
but that choice should nonetheless comply with objective criteria. Though it lies within the discretionary
powers of the Court, such a choice cannot be made in an arbitrary manner, in other words in a hazardous
and unpredictable way or in a manner bereft of any apparent logical approach.
24. The integrity of the Court's judicial function indeed requires that reasons be provided for decisions
adopted under the above-mentioned provision so as to comply with the requirements of predictability and
consistency which are the essential ingredients that underpin the principle of legal certainty which should
be guaranteed by the Court at all times.
25. In the absence of such objective criteria for the referral to the Commission of cases over which the
Court declares that it manifestly has no jurisdiction, there is the huge risk that such a referral would become
systematic, which approach seems to be fostered by the current practice.
26. Furthermore, in the absence of objective criteria for transfers of cases to the Commission, a dissenting
Judge would not be afforded the opportunity to clarify the reasons for which he objects to the grounds for a
transfer unless he mentions elements of fact or of law, which do not appear in the Court's decision and, in
so doing, betrays the secrecy of the deliberations of the Court.
27. If the Court were to persevere in the practice of referring to the Commission matters over which it finds
that it manifestly lacks jurisdiction, it would be necessary for it to set out clear criteria for such referrals. In
so doing, it could for instance be guided by the nature or gravity of the violations brought to its attention in
the application in question and thus transfer to the Commission, those applications which "apparently
reveal the existence of a series of serious or massive violations of human and peoples' rights", to use the
wording of Article 58 (1) of the African Charter.
28. It must be recalled that the criterion of "serious or massive violations of human rights" is one of those
that the African Commission used to submit a case to the Court under Article 5 of the Protocol (see Rules
84 (2) and 118 (3) of the Rules of the Commission). Once the case is referred by the Court, it would then lie
with the Commission to consider the application and make the findings arising therefrom in accordance with
the above-stated provisions of its Rules.
29. If the Court were to embark on this path, it would be following a reasoning that it had recently applied in
its practice of transferring to the Commission matters over which it found that it manifestly lacks jurisdiction.
It would even be attaching some significance to that practice by setting it aside for exceptional
circumstances. Hence, the Court would more or less be playing the role of "an early warning mechanism"
for the Commission, similar to the one that may now play individuals and non-governmental organisations
before the Commission, as evidenced in the circumstances that led to the submission by the Commission
of its own application against the Great Arab Socialist Peoples' Libyan Jamahiriya.
30. This is obviously a matter of judicial policy requiring mature reflection on the part of the Court. The
response to that question will depend on the role that the Court intends to play in the human rights
protection system provided in the African Charter and the Protocol establishing the Court; it will depend in
particular on the manner in which the Court views synergies with the African Commission based on Articles
2, 4, 5, 6 (1&3), 8 and 33 of the Protocol.
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