010/11_SO Efoua Mbozo'o Samuel v. The Pan African
Parliament (Separate Opinion - Fatsah Ouguergouz)
SEPARATE OPINION OF JUSTICE FATSAH OUGUERGOUZ
1. Like my colleagues, I am of the opinion that the application filed by Mr. Efoua Mbozo'o Samuel against
the Pan-African Parliament must be dismissed. However, since this is a case of manifest lack of jurisdiction
of the Court, I consider that the application should not have given rise to a ruling by the Court; it should
have been dismissed de plano by a simple letter from the Registry (on this point, see my separate opinion
attached to the 15 December 2009 Judgement in the case Michelot Yogogombaye vs. Republic of
Senegal, as well as my dissenting opinion attached to the recent decision in the case Ekollo Moundi
Alexandre vs. Republic of Cameroon and Federal Republic of Nigeria).
2. Considering that Mr. Efoua Mbozo'o Samuel's Application has been considered judicially by the Court, it
should, in any event, have been dismissed on a more explicit legal basis.
3. The reasons of the decision are contained in paragraph 6 which reads as follows:
"On the facts of this case and the prayers sought by the Applicant, it is clear that this application is
exclusively grounded upon breach of employment contract in accordance with Article 13 (a) and (b) of the
OAU Staff Regulations, for which the Court lacks jurisdiction in terms of Article 3 of the Protocol. This is
therefore a case which, in terms of the OAU Staff Regulations, is within the competence of the Ad hoc
Administrative Tribunal of the African Union. Further, in accordance with Article 29 (1) (c) of its Protocol, the
Court with jurisdiction over any appeals from this Ad hoc Administrative Tribunal is the African Court of
Justice and Human Rights. The present Court therefore concludes that, manifestly it doesn't have the
jurisdiction to hear the application."
4. The Court is thus first concerned with the material basis of the application, i.e. with the nature of the right
allegedly violated, rather than with the entity against which the application is lodged. By so doing, the Court
starts by examining the application first from the angle of its material jurisdiction and not, as it ought to,
from that of its personal jurisdiction.
5. Indeed, the Court recalls the "terms of Article 3 of the Protocol" to state that it "lacks jurisdiction" to deal
with an application "exclusively grounded upon breach of employment contract in accordance with Article
13 (a) and (b) of the OAU Staff Regulations". It thus concludes implicitly that the matter submitted to it does
not concern, as required under Article 3 (1) of the Protocol, "the interpretation and application of the
Charter, this Protocol and any other relevant Human Rights instrument ratified by the States concerned".
6. However, the Court should first of all consider its personal jurisdiction or ratione personae; it is only after
establishing its personal jurisdiction that it can look at its material jurisdiction (ratione materiae) and/or, if
the case arises, its temporal (ratione temporis) and geographical (ratione loci) jurisdiction. Since its
jurisdiction is not compulsory,1 the Court must first of all ascertain that it has jurisdiction ratione personae to
consider the application.2
7. This personal jurisdiction of the Court must in it [sic] turn be looked at from two different angles: at the
level of the defendant (against whom an application may be lodged ?) and at the level of the applicant (who
may lodge an application ?).
8. Under the Protocol, applications may be filed only against a "State" and such a State must of course be
party to the Protocol. Article 2 of the Protocol indeed provides that the Court shall complement the
protective mandate that the African Charter on Human and Peoples' Rights has conferred upon the African
Commission. However, the African Charter clearly stipulates that only "States", which are party to the
Charter, may be the subject of a communication lodged before the African Commission. The Protocol does
not intend to derogate from this principle, as it provides in Articles 3 (1), 5, (1, subparagraph c)), 7, 26, 30,
31 and 34 (6), none of which refers to an entity other than the "State" ("States concerned",3 "State against
which a complaint has been lodged", "States Parties").
9. In addition to the State, Article 5 of the Protocol clearly mentions the African Commission, African
Intergovernmental Organisations, the individuals and non-governmental organisations, but only to authorise
them to institute proceedings against a State Party and not to make them potential "defendants" before the
Court.4
10. As an organ of the African Union (see Article 5 of the Constitutive Act of the African Union), the
Pan-African Parliament is therefore not, in the current state of the Protocol, an entity against which a
complaint can be lodged before the Court. That is simply what the Court should have clearly indicated.
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