11. That is in fact what the Court seems to say, but in a tortuous way, in the second and third sentences of
paragraph 8 [sic] of its decision, which read as follows: "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) (e) 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".
12. It does not seem that the Court intended to conclude that a breach of an employment contract per se
does not fall within its material scope of jurisdiction. That would indeed be a hasty conclusion given that
such an issue is closely related to the right of every individual "to work under equitable and satisfactory
conditions", guaranteed in particular by Article 15 of the African Charter. It is only because this breach
relates to an employment contract concluded between the Applicant and the Pan-African Parliament that
the Court considers that the matter does not fall within its scope of jurisdiction, without however specifying
whether that is a case of material or personal lack of jurisdiction.
13. In the present case, the Court should have adopted the approach it has always followed in examining
applications, namely to start by verifying that it has personal jurisdiction.
14. By focussing [sic] right from the start on its material jurisdiction, as it did in the present case, the Court
runs the risk of addressing issues the answer of which is not necessary for the purpose of establishing its
jurisdiction to consider the case. Indeed, if the Court were to start by examining the question, not always
easy to elucidate, whether an alleged violation actually concerns a human right guaranteed by the African
Charter or another relevant international human rights instrument and that its answer turns out to be
affirmative, its research and conclusions on the matter could prove to be vain if it later realises that the
entity against which the complaint is lodged cannot be brought before the Court, either because it is not
party to the Protocol, or because it has not made the declaration provided for in Article 34 (6) of the
Protocol, or because it is not party to the relevant international treaty referred to.
15. May I also note that the Court makes an incomplete examination of its material jurisdiction because it
seems to me peremptory to say, as the Court says in paragraph 6 of the decision, that the application "is
exclusively grounded upon breach of employment contract in accordance with Article 13 (a) and (b) of the
OAU Staff Regulations".
16. In his application, as supplemented by his letter of 22 August 2011, the Applicant indeed draws the
attention of the Court to an appeal which he reportedly lodged before the Ad Hoc Administrative Tribunal of
the African Union on 29 January 2009. On 15 April 2009, this appeal is reported to have been declared
admissible by the Acting Secretary of the Tribunal and on 29 September 2010, after many reminders
addressed to the latter, the Applicant is said to have been informed that the Tribunal "had not been able to
sit for the last 10 (ten) years due to inadequate financial means and due to the fact that the Tribunal did not
have any Secretaries". The Applicant purports that two years and four months after his appeal was
declared admissible, the Tribunal was still to sit and that it is due to the "silence" of the latter that he
decided to refer the matter to the Court.
17. Although the Applicant did not explicitly make allegations of violation of his "right to have his cause
heard", the Court could also have tried to find out if such a right falls within its jurisdiction; this is indeed a
right guaranteed by the African Charter (Article 7), instrument referred to in Article 3 (1) of the Protocol. The
Court could not however answer this question without first identifying the debtor or passive subject of the
right in question; by so doing, it would have been compelled to address the question of its personal
jurisdiction.
18. For all the above-mentioned reasons, I consider that in the present case the Court should have clearly
declared: 1) that the Protocol authorises the lodging of complaints only against States Parties thereto, 2)
that the Pan-African Parliament cannot therefore be brought before it, and 3) that it consequently manifestly
lacks jurisdiction ratione personae to consider the application. At any rate, the lack of jurisdiction of the
Court being manifest, the application should not have been considered judicially by the Court but should
have been dismissed de plano by a simple letter from the Registry.
Fatsah Ouguergouz
Robert Eno
Acting Registrar
* Editor's note: This quotation is rather found in paragraph 6 of the decision which does not have a
paragraph 8.
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