004/12_SO Emmanuel Joseph Uko and Others v. The
Republic of South Africa - Fatsah Ouguergouz
IN THE MATTER
EMMANUEL JOSEPH UKO AND OTHERS
V.
REPUBLIC OF SOUTH AFRICA
(Application N° 004/2012)

SEPARATE OPINION OF JUDGE FATSAH OUGUERGOUZ

1. I am of the opinion that the application filed by Mr Emmanuel Joseph Uko and others against the
Republic of South Africa must be rejected. However, the lack of jurisdiction ratione personae of the Court
being manifest, the application should not have been dealt with by a decision of the Court; rather, it should
have been rejected de piano by a simple letter of the Registrar (see my reasoning on this matter in my
separate opinions appended to the decisions in the cases of Michelot Yogogombaye v. Republic of
Senegal , Effoua Mbozo Samuel v. Pan African Parliament , National Convention of Teachers'Trade Union
(CONASYSEO) v. Republic of Gabon , Delta International lnvestments S.A. &Mr and Mrs AGL de Lang v.
Republic of South Africa , as well as my dissenting opinion appended to the decision rendered in the matter
Ekollo Moundi Alexandre v. Republic of Cameroon and Federal Republic of Nigeria .
2. lndeed, I am not in favour of the judicial consideration of an application filed against a State Party to the
Protocol which has not made the declaration accepting the compulsory jurisdiction of the Court to receive
applications from individuals and non-governmental organizations, or against any African State which is not
party to the Protocol or which is not a member of the African Union, as was the case in several applications
already dealt with by the Court.
3. By proceeding with the judicial consideration of the present application lodged against the Republic of
South Africa, the Court failed to take into account the interpretation, in my view correct, which it initially
gave of Article 34(6) of the Protocol in paragraph 39 of its very first judgment in the case concerning
Miche/of Yogogombaye v. Republic of Senegal . ln that judgment, the Court indeed stated what follows:
"the second sentence of Article 34 (6) of the Protocol provides that [the Court] shall not receive any petition
under article 5 (3) involving a State Party which has not made such a declaration (emphasis added). The
word "receive" should not however be understood in its literal meaning as referring to "physically receiving"
nor in its technical sense as referring to "admissibility". lt should instead be interpreted in light of the letter
and spirit of Article 34 (6) taken in its entirety and, in particular, in relation to the expression declaration
accepting the competence of the Court to receive applications [emanating from individuals or NGOs]
contained in the first sentence of this provision. lt is evident from this reading that the objective of the
aforementioned Article 34 (6) is to prescribe the conditions under which the Court could hear such cases;
that is to say, the requirement that a special declaration should be deposited by the concerned State Party,
and to set forth the consequences of the absence of such a deposit by the State concerned".
4. lt is evident that by giving a judicial treatment to an application and delivering a decision on the said
application, the Court actually "received" the application in the sense that it interpreted the verb "receive" in
the abovementioned paragraph 39 , that is that the Court has actually examined the application even
though it concluded that it does not have jurisdiction to entertain it; however, according to its interpretation
of Article 34 (6) , the Court should not examine an application if the State Party concerned has not made
the optional declaration.
5. lt should further be observed that the Court gave a judicial consideration to the application filed by Mr.
Emmanuel Joseph Uko and others without transmitting it to South Africa, nor even informing this State that
an application had been lodged against it. The adoption by the Court of a judicial decision under such
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