31. The Court could in that regard continue to explore the options available under Article 6 (3) of the
Protocol and try to ascertain if the transfer of an application to the Commission could not occur after the
Court has declared that it "has jurisdiction"; the ultimate goal of the transfer being for the Commission to
consider not only the admissibility of the application but also the merits of the case.
32. The verb "consider" used in paragraph 3 and the positioning of that paragraph in Article 6 (immediately
after paragraph 2 dealing with the issue of ruling on the admissibility of cases by the Court), indeed
suggests that the Court may consider cases on their merit or transfer them to the Commission.
33. Guided by criteria which it would have to determine, the Court could thus choose not to rule on the
merits of a case over which it has jurisdiction. This system, known as "pick and choose", is for instance,
applied by the U.S Supreme Court. Rule 10 of the Rules of that Court indeed allows it to exercise its
appellate jurisdiction in a discretionary manner, in other words when it feels that there are compelling
reasons to exercise such a jurisdiction; the same Rule provides criteria for the selection of cases subject to
appeal before the Supreme Court (e.g. major federal issues, conflicts of jurisprudence between two courts
of appeal).
34. In deciding not to rule on the merits of a case over which it has jurisdiction, the African Court could
however be opening the door to a veritable denial of justice; the referral of the case to the Commission for
determination on the merits would not suffice to forestall such a denial of justice since only the Court does
have powers of a judicial nature. That impediment may be surmounted; it would be up to the Court and the
Commission to initiate joint discussions on the matter.
35. Here again, it is a matter of judicial policy which arises for the Court touching on the role it intends to
play within the African system of protection of human and peoples' rights. Indeed, one cannot rule out the
fact that in the not too distant future, the Court may be flooded with a whole range of applications which it
would not be able to dispose of satisfactorily because of the limited material and human resources at its
disposal. In that event, the Court would then need to make a choice: either to continue with the systematic
consideration of all applications filed before it, with the risk of bottlenecks and the inherent paralysis of its
services or to sift the applications using a set of criteria and thus transforming itself into some kind of
judicial body regulating the entire African system of human rights protection.
36. To sum up, I am of the view that in the instant case: - the lack of jurisdiction ratione personae of the
Court being manifest, the Application ought to have been dealt with administratively by the Registry and
should accordingly not have given rise to a decision of the Court; - since this is a case where the Court
manifestly lacks jurisdiction, this Application should not have been transferred to the African Commission
under Article 6 (3) of the Protocol and, at any rate, reasons should have been duly provided for such a
transfer; - it was eventually for the Registry to "direct" the Applicant to the African Commission either in the
letter in which it informs the Applicant that the matter is outside the jurisdiction of the Court or, as in the
instant case, in the letter under cover of which it transmits to the Applicant the Court's decision on its lack of
jurisdiction.
Fatsah Ouguergouz
Robert Eno
Acting Registrar
1 In that scenario, the Registry would inform the Applicant that (1) since the State against which the
application was filed did not make the optional declaration, the Court cannot entertain his application; (2)
the application has been forwarded to this State, for information purposes; (3) the Court may examine the
application if the State concerned decides to accept the Court's jurisdiction.
2 Article 6 of the Draft Protocol, as adopted by the first meeting of Governmental Legal Experts (Cape
Town, South Africa, 6-12 September 1995), see Draft Protocol to the African Charter on Human and
Peoples' Rights on the Establishment of an African Court of Human and Peoples' Rights, adopted by the
Meeting of Government Legal Experts on the Establishment of an African Court on Human and Peoples'
Rights, 6-12 September 1995, Cape Town, South Africa, DOC OAU/LEG/EXP/AFC/HPR/PRO (I) Rev. 1.
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