012/11_SO National Convention of Teachers Trade
Union (CONASYSED) v. Gabon (Separate Opinion Fatsah Ouguergouz)
Separate Opinion of Justice Fatsah Ouguergouz
1. I believe that the application lodged against the Republic of Gabon by Convention Nationale des
Syndicats du Secteur Education (CONASYSED) must be rejected. However, the lack of jurisdiction ratione
personae of the Court being manifest in this case, this application should not have been dealt with by a
decision of the Court; rather, it should have been rejected de plano by a simple letter of the Registrar (on
this point, see my argumentation in my separate opinion appended to the judgment in the case Michelot
Yogogombaye vs. Republic of Senegal, as well as in my dissenting opinion appended to the decision in the
case Ekollo Moundi Alexandre vs. Republic of Cameroon and Federal Republic of Nigeria).
2. I am not favorable to the judicial examination of a complaint against a State Party to the Protocol which
has not made the optional declaration accepting the compulsory jurisdiction of the Court to receive
complaints from individuals or non-governmental organizations, or against an African State not party to the
Protocol or not member of the African Union, as was the case of several applications already dealt with by
the Court. I am even less favorable to such a judicial examination when the State concerned has not even
been notified of the filing of the application against it, such as it is again the case here.
3. The Court has indeed decided not to notify Gabon of the application lodged by CONASYSED, nor even
to inform Gabon of its filing. The adoption by the Court of a decision of lack of jurisdiction in such conditions
is a violation of the adversarial principle (Audiatur et altera pars), a principle which should apply at any
stage of the proceedings. This breach of fairness and equality of arms is all the more remarkable given that
the application lodged by CONASYSED was, upon receipt, publicized on the website of the Court.
4. The non-transmittal of the application to Gabon further deprived the latter of the latitude to accept the
jurisdiction of the Court by way of forum prorogatum (on this matter, see my separate opinion above).
Fatsah Ouguergouz
Robert Eno - Acting Registrar

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