PROCEDURE
Jurisdiction
Advisory opinions
The Court has the discretion on whether or not to provide an advisory opinion
pursuant to article 4(1) of the Protocol (Request for advisory opinion by the African
Committee of Experts on the Rights and Welfare of the Child, 002/2013, advisory
opinion, 5 December 2014, para 40).
The subject matter of the advisory opinion should not be an issue which is already
being examined by the African Commission (Request for advisory opinion by the
African Committee of Experts on the Rights and Welfare of the Child, 002/2013,
advisory opinion, 5 December 2014, para 34).
The advisory opinion must be about legal matters and set out clearly the question
which the court is requested to answer and the specific provisions of the Charter or
other human rights instruments in respect of which the opinion is sought (Request for
advisory opinion by the African Committee of Experts on the Rights and Welfare of
the Child, 002/2013, advisory opinion, 5 December 2014, para 35).
Jurisdiction ratione temporis and jurisdiction ratione loci do not arise in a request for
advisory opinion which does not involve the determination of facts (Request for
advisory opinion by the African Committee of Experts on the Rights and Welfare of
the Child, 002/2013, advisory opinion, 5 December 2014, para 39).
The African Committee of Experts on the Rights and Welfare of the Child is an organ
of the AU and therefore has standing to request an advisory opinion from the Court in
terms of article 4(1) of the Protocol (Request for advisory opinion by the African
Committee of Experts on the Rights and Welfare of the Child, 002/2013, advisory
opinion, 5 December 2014, para 57).
To determine whether the Court has personal jurisdiction, the Court must satisfy itself
that the applicant falls within the entities allowed to make a request for advisory
opinions by virtue of article 4 of the Court’s Protocol (Request for advisory opinion
by the Socio-Economic Rights Accountability Project (SERAP), 001/2013, advisory
opinion, 26 May 2017, para 38).
The use of the term ‘Organisation’ and ‘African Organisation’ in article 4 of the
Court’s Protocol covers both inter-governmental and non-governmental organisations
as the drafters would have specified if they meant to cover only inter-governmental
organisations in the manner specified in article 5 of the Court’s Protocol relating
contentious cases (Request for advisory opinion by the Socio-Economic Rights
Accountability Project (SERAP), 001/2013, advisory opinion, 26 May 2017, paras 46
& 47). In this regard, an NGO is an African organisation if it is registered in an