[2020] AfCHPR 41

| AFRICAN UNION | | UNION AFRICAINE | |---------------|------------------------------------------------------------------------------------|-----------------| | JUHI | | UNIAO AFRICANA | | | AFRICAN COURT ON HUMAN AND PEOPLES' RIGHTS<br>COUR AFRICAINE DES DROITS DE L'HOMME | ET DES PEUPLES |

**THE MATTER OF**

# **FIDELE MULINDAHABI**

**REPUBLIC OF RWANDA**

## **APPLICATION No. 010/2017**

**RULING 26 JUNE 2020**


# <span id="page-1-0"></span>**TABLE OF CONTENTS**

| | <table> TABLE OF CONTENTS </table> | | |---------------------------|-------------------------------------------|--| | $\mathbf{L}^{\top}$ | THE PARTIES | | | $\mathbf{H}_{\mathbf{r}}$ | SUBJECT OF THE APPLICATION | | | A. | Facts of the matter | | | В. | <table> Alleged violations 5</table> | | | III. | SUMMARY OF THE PROCEDURE BEFORE THE COURT | | | IV. | PRAYERS OF THE PARTIES | | | $\vee$ | NON APPEARANCE OF THE RESPONDENT STATE | | | VI. | JURISDICTION | | | VII. | ADMISSIBILITY | | | VIII. | COSTS | | | IX | <table> OPERATIVE PART 16</table> | |

$\mathbf{i}$

**The Court composed of:** Sylvain ORE - President; Ben KIOKO - Vice-President; Rafaa BEN ACHOUR, Angelo V. MATUSSE, Suzanne MENGUE, Tujilane R. CHIZUMILA, Chafika BENSAOULA, Blaise TCHIKAYA, Stella I. ANUKAM and Imani D. ABOUD, Judges; and Robert ENO, Registrar.

Pursuant to Article 22 of the Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights (hereinafter referred to as "the Protocol") and Rule 8(2) of the Rules of Court (hereinafter referred to as "the Rules"), Justice M-Therese MUKAMULISA, a member of the Court and a national of Rwanda did not hear the Application.

In the matter of:

Fidele MULINDAHABI *Self-represented*

Versus

REPUBLIC OF RWANDA, *Unrepresented*

after deliberation,

*renders the following Ruling in default:*

#### <span id="page-3-0"></span>**I. THE PARTIES**

- 1. Fidele Mulindahabi (hereinafter referred to as "the Applicant"), is a national of the Republic of Rwanda, residing in Kigali, and the owner of four (4) transport mini-buses. - 2. The Application is filed against the Republic of Rwanda (hereinafter referred to as the "Respondent State") which became a party to the African Charter on Human and Peoples' Rights (hereinafter referred to as "the Charter") on 21 October 1986 and to the Protocol on 25 May 2004. It also deposited on 22 January 2013, the Declaration provided for under Article 34(6) of the Protocol by which it accepted the jurisdiction of the Court to receive applications from individuals and Non-Governmental Organisations. On 29 February 2016, the Respondent State notified the Chairperson of the African Union Commission of its intention to withdraw the said Declaration. The African Union Commission transmitted to the Court, the notice of withdrawal on 3 March 2016. By a ruling dated 3 June 2016, the Court decided that the withdrawal by the Respondent State would take effect from ¹ March 2017.[1](#page-3-2)

### <span id="page-3-1"></span>**II. SUBJECT OF THE APPLICATION**

#### **A. Facts of the matter**

3. The Applicant states that he owns a Toyota Hiace minibus in respect of which he alleges he alleges to have paid his membership dues to ATRACO Minibus Drivers' Union on 5 January 2008.

<span id="page-3-2"></span>¹ See *Ingabire Victoire Umuhoza v. Republic of Rwanda* (jurisdiction) (2016) ¹ AfCLR 562 § 67.

- 4. He further states that although the ATRACO agent received the One Thousand Six Hundred Rwandan francs (RWF 1600) payment for the membership dues, the agent informed the officials in the town of Gitarama (Muhanga) that the Applicant had not paid any money. - 5. According to the Applicant, on 7 January 2008, the ATRACO representative in Gitarama ordered the coordinator of the southern region, "Mongoose Alexis", to confiscate his minibus. The minibus was subsequently severely damaged by heavy rains and mud. - 6. The Applicant alleges that on 8 January 2008, ATRACO decided to prohibit the movement of his four (4) public transport vehicles of Registration Numbers RAA147H, RAA660R, RAA016Zand RAB762A. - 7. On 18 January 2008, the Applicant filed an application before the Court of First Instance, "Banyarengigi", to seek compensation from ATRACO. - 8. The Applicant alleges that on 14 February 2008, after ATRACO was informed that it was the subject of a complaint he had filed; it served letter No. 1996/SA/ATRACO-02/2008 on the former driver of the minibus, informing him of his deregistration on 7 January 2008 for non-payment of what was described as a tax and for having parked the minibus. He was therefore, required to take the vehicle back without compensation, failing which the vehicle would be transferred to the nearest police station. - 9. By a letter dated 19 February 2008, the driver responded to the above mentioned letter, stating that the charge of non-payment of the tax had not been established, as he had receipts showing that he had paid one thousand six hundred Rwandan francs (RWF 1,600). With regard to parking the vehicle, the driver responded that he was not responsible for the fact that the vehicle had been impounded.

- 10. The Applicant states that since 25 March 2008, the vehicle was parked at Nyarenambu Police Station, thus relieving ATRACO of its responsibility for the vehicle. Even so, according to the Applicant, the question arises as to who is responsible for the poor condition of the vehicle, as no inspection was carried out on the vehicle when ATRACO seized it and when it was transferred to the police station. - 11. The Court of First instance delivered judgment No. RC0025/08/TGI/NYGE, stating that ATRACO could not return a vehicle which was not in its possession and therefore should not pay for the damage caused to that vehicle. - 12. On 5 October 2009, the Applicant filed an appeal with the Supreme Court, being Appeal No. RCA0028/09/HC/KIG, in which the Attorney General sought to intervene. Nevertheless, the Attorney General's application to intervene was dismissed on the ground that he was a third party in the case. - 13. The Applicant filed application No. RADO115/09/HC/KID against the Attorney General, claiming that the police had confiscated his minibus in order to force him to pay a fine to ATRACO. On 7 October 2011, the court dismissed the application for lack of merit. - 14. On 4 November 2011, the Applicant filed an appeal for review before the Supreme Court, basing his appeal on the violation of the provisions of Articles 182 and 184 of Law No. 18/2004 of 20 June 2004 on Civil, Commercial and Administrative Procedures in Rwanda. The Supreme Court, by decision No. RC0063/12/PRE of 15 October 2012, dismissed the appeal.

### <span id="page-6-0"></span>**B. Alleged violations**

15. The Applicant contends that the Respondent State:

- i. violated his right to property protected under Article 17(2) of the Universal Declaration of Human Rights (hereinafter referred to as "the UDHR") and Article 14 of the Charter. - ii. violated "his right to a fair trial and public hearing by a competent, independent and impartial tribunal, in a fair and public hearing of his case, in the determination of any dispute concerning his rights and obligations in a suit at law", guaranteed by Article 10 of the UDHR and Article 14(1) of the International Covenant on Civil and Political Rights (hereinafter referred to as "ICCPR"). - iii. has taken no steps to ensure that the competent authorities implement the judgments rendered in his favour in accordance with Article 2(3)(c) of the ICCPR. - iv. violated his right to have his cause heard under Article 7(1 )(a) and (d) of the Charter. - v. has failed to guarantee the independence of the courts and the establishment and development of relevant national institutions for the promotion and protection of the rights and freedoms protected under Article 26 of the Charter. - vi. violated his rights to full equality before the law and equal protection of the law, enshrined under Article 7 of the UDHR, Article 26 of the ICCPR and Article 3 of the Charter.

#### <span id="page-6-1"></span>**III. SUMMARY OF THE PROCEDURE BEFORE THE COURT**

16. The Application was filed on 24 February 2017 and on 31 March 2017, the Registry transmitted it to the Respondent State and all the other entities mentioned in the Protocol.

- 17. On 9 May 2017, the Registry received a letter from the Respondent State reminding the Court that it had withdrawn its Declaration under Article 34(6) of the Protocol and that it would not participate in any proceedings before the Court. The Respondent State therefore requested the Court to cease communicating any information relating to cases concerning it. - 18. On 22 June 2017 the Court acknowledged receipt of the Respondent State's said correspondence and informed the Respondent State that it would nonetheless be notified of all the documents in matters relating to Rwanda in accordance with the Protocol and the Rules. - 19. On 25 July 2017, the Court granted the Respondent State an extension of forty-five (45) days to file its Response. On 23 October 2017 the Court granted a second extension of forty-five (45) days indicating that it will render a judgment in default after the expiration of this extension if the Respondent State did not file its Response. - 20. On 17 July 2018, the Applicant was requested to file his submissions on reparations within thirty (30) days thereof. The Applicant filed his submissions on reparations on 6 August 2018 and these were transmitted to the Respondent State by a notice dated 7 August 2018, giving the latter thirty (30) days to file the response thereto. The Respondent State failed to respond, notwithstanding proof of receipt of the notification on 13 August 2018. - 21. On 16 October 2018, the Respondent State was notified that it was granted a final extension of forty-five (45) days to file the Response and that, thereafter it would render a judgment in default in the interest of justice in accordance with Rule 55 of its Rules.

- 22. Although the Respondent State received all these notifications, it did not respond to any of them. Accordingly, the Court will render a judgment in default in the interest of justice and in accordance with Rule 55 of the Rules. - 23. On 28 February 2019, pleadings were closed and the parties were duly notified. - 24. On 2 April 2020, the Applicant filed, a judgment dated 14/12/2018 under number RC 00113/2018/TB/KICU issued by the Kicukiko District Court, and the Court decided that it was immaterial to this Application due to the lack of nexus with the current case.

#### <span id="page-8-0"></span>**IV. PRAYERS OF THE PARTIES**

25. The Applicant prays the Court to:

- i. find that Rwanda has violated the human rights legal instruments it has ratified; - ii. revise the judgment in case No. RADA0015/09/CS and annul all the orders contained therein; - iii. order the Respondent State to repair and return to it the Toyota Hiace minibus with registration number RAA624, or pay compensation in the amount of Forty Million Three Hundred and Forty-Nine Thousand One Hundred Rwandan francs (RWF 40,349,100); - iv. order the Respondent State to pay him a daily compensation of One Hundred and Nine Thousand Three Hundred and Eighty Rwandan francs (RWF 109,380) from 7 January 2008 until the date of settlement of the case; - v. order the Respondent State to pay him compensation of Two Hundred and Fifty-five million Four Hundred and Fifty-Six Thousand Nine Hundred and Ninety Rwandan francs (RWF 255,456,990) for having destabilised his activities and banned the movement of his four (4) vehicles;

- vi. order the Respondent State to pay him compensation in the amount of Fifty-one Billion Two Hundred and Twenty Six Million Five Hundred and Twenty Nine Thousand Seven Hundred and Twenty Five Rwandan francs (RWF 51,226,529,725) for the returns on reinvestment; - vii. order the Respondent State to compensate him at the rate of 7.4% for the loss of expected profits; - viii.order the Respondent State to pay him an amount of Forty Million Rwandan francs (RWF 40,000,000) for the moral prejudice suffered; - ix. order the Respondent State to pay Eight Million Rwandan francs (RWF 8,000,000) for legal costs. - x. order the Respondent State to pay the cost of counsel's fees for the proceedings before the domestic courts and this Court. - 26. The Respondent State did not participate in the proceedings before this Court. Therefore, it did not make any prayers in the instant case.

# **V. NON APPEARANCE OF THE RESPONDENT STATE**

27. Rule 55 of the Rules of Court provides that:

1. Whenever a party does not appear before the Court or fails to defend its case, the Court may, on the application of the other party, pass judgment in default after it has satisfied itself that the defaulting party has been duly served with the application and all other documents pertinent to the proceedings.

2. Before acceding to the application of the party before it, the Court shall satisfy itself that it has jurisdiction in the case, and that the application is admissible and well founded in fact and in law.

- 28. The Court notes that the afore-mentioned Rule 55 in its paragraph ¹ sets out three conditions, namely: i) the default of one of the parties; ii) the request made by the other party; and iii) the notification to the defaulting party of both the application and the documents on file. - 29. On the default of one of the parties, the Court notes that on 9 May 2017, the Respondent State had indicated its intention to suspend its participation and requested the cessation of any transmission of documents relating to the proceedings in the pending cases concerning it. The Court notes that, by these requests, the Respondent State has voluntarily refrained from asserting its defence. - 30. With respect to the other party's request for a judgment in default, the Court notes that in the instant case it should, in principle, have given a judgment in default only at the request of the Applicant. However, the Court considers, that, in view of the proper administration of justice, the decision to rule by default falls within its judicial discretion. In any event, the Court shall have jurisdiction to render judgment in default *suo motu* if the conditions laid down in Rule 55(2) of the Rules are fulfilled. - 31. Finally, as regards the notification of the defaulting party, the Court notes that the application was filed on 24 February 2017. The Court further notes that from 31 March 2017, the date of transmission of the notification of the Application to the Respondent State, to 28 February 2019, the date of the closure of the pleadings, the Registry notified the Respondent State of all the pleadings submitted by the Applicant. The Court concludes thus, that the defaulting party was duly notified. - 32. On the basis of the foregoing, the Court will now determine whether the other requirements under Rule 55 of the Rules are fulfilled, that is: it has

jurisdiction, that the application is admissible and that the Applicant's claims are founded in fact and in law.[2](#page-11-0)

## **VI. JURISDICTION**

- 33. Pursuant to Article 3(1) of the Protocol, "The jurisdiction of the Court shall extend to all cases and disputes submitted to it concerning the interpretation and application of the Charter, this Protocol and any other relevant human rights instrument ratified by the States concerned". Furthermore, Rule 39(1) of the Rules provides that "the Court shall conduct a preliminary examination of its jurisdiction ...". - 34. After a preliminary examination of its jurisdiction and having found that there is nothing in the file to indicate that it does not have jurisdiction in this case, the Court finds that it has: - i. Material jurisdiction by virtue of the fact that the Applicant alleges a violation of Articles 7(1)(a)(d) and 26 of the Charter, Articles 2(3)(c) and 14(1) of the ICCPR to which the Respondent State is a party and Article 10 of the UDHR[3](#page-11-1). - ii. Personal jurisdiction, insofar as, as stated in paragraph 2 of this Ruling, the effective date of the withdrawal of the Declaration by the Respondent State is ¹ March 2017.[4](#page-11-2) - iii. Temporal jurisdiction, in so far as, the alleged violations took place after the entry into force for the Respondent State of the

<span id="page-11-1"></span><span id="page-11-0"></span>*² African Commision on Human and Peoples' Rights v. Libya* (merits) (2016) ¹ AfCLR 153 §§ 38-42. ³ See *Anudo Ochieng Anudo v. United Republic of Tanzania,* (merits) (2018) 2 AfCLR 257, § 76; *Thobias Mang'ara Mango and Shukurani Masegenya Mango v. United Republic of Tanzania* (merits) (2018) 2 AfCLR 325, §33.

<span id="page-11-2"></span>⁴ See paragraph 2 of this Judgment.

Charter (31 January 1992), of the ICCPR (16 April 1975), and the Protocol (25 May 2004).

- iv. Territorial jurisdiction, since the facts of the case and the alleged violations occurred in the territory of the Respondent State. - 35. From the foregoing, the Court finds that it has jurisdiction to hear the instant case.

#### **VII. ADMISSIBILITY**

- 36. Pursuant to the provisions of Article 6(2) of the Protocol: "the Court shall rule on the admissibility of cases taking into account the provisions of article 56 of the Charter". - 37. Furthermore, under Rule 39(1) of its Rules: "[t]he Court shall conduct preliminary examination of its ... the admissibility of the application in accordance with articles 50 and 56 of the Charter, and Rule 40 of these Rules". - 38. Rule 40 of the Rules, which restates the provisions of Article 56 of the Charter, sets out the conditions for the admissibility of applications as follows:

Pursuant to the provisions of article 56 of the Charter to which article 6(2) of the Protocol refers, applications to the Court shall comply with the following conditions:

- 1. disclose the identity of the Applicant, notwithstanding the latter's request for anonymity; - 2. comply with the Constitutive Act of the Union and the Charter; - 3. not contain any disparaging or insulting language;

- 4. not be based exclusively on news disseminated through the mass media; - 5. be filed after the exhaustion local remedies, if any, unless it is obvious that this procedure is unduly prolonged; - 6. be filed within a reasonable time from the date local remedies were exhausted or from the date set by the Court as being the commencement of the time-limit within which it shall be seized of the matter; and - 7. not raise any matter or issues previously settled by the parties in accordance with the principles of the Charter of the United Nations, the Constitutive Act of the African Union, the provisions of the Charter or of any legal instrument of the African Union. - 39. The Court notes that the conditions of admissibility set out in Rule 40 of the Rules are not in contention between the parties, as the Respondent State having decided not to take part in the proceedings did not raise any objections to the admissibility of the Application. However, pursuant to Rule 39(1) of its Rules, the Court is obliged to determine the admissibility of the Application. - 40. It is clear from the record that the Applicant is identified. The Application is not incompatible with the Constitutive Act of the African Union and the Charter. It is not written in disparaging or insulting language and is not based exclusively on information disseminated through the mass media. There is also nothing on the record to indicate that the present Application concerns a case which has been settled in accordance with either the principles of the United Nations Charter, the OAU Charter or the provisions of the Charter. - 41. With regards to the exhaustion of local remedies, the Court reiterates, as it has established in its case law, that the local remedies which the Applicants

are required to exhaust are ordinary judicial remedies[5](#page-14-0), unless they are nonexistent, ineffective and insufficient or the procedure for exercising them is unduly prolonged.[6](#page-14-1)

- 42. Having regard to the facts of the case, the Court notes that the Applicant filed his complaint before the Court of First Instance, which dismissed it on 5 October 2009; he appealed against that decision to the Supreme Court, which, by judgment of 4 November 2011, upheld the decision of 7 October 2011 delivered by the Court of First Instance. The Applicant filed an application for review of this decision, which was dismissed by the Supreme Court by decision of 15 October 2012. The Court concludes, therefore, that the Applicant exhausted the available local remedies. - 43. With regard to the obligation to file the application within a reasonable time, the Court notes that Article 56(6) of the Charter does not set any time-limit for the filing of applications before it. Rule 40(6) of the Rules, which essentially restates the provisions of Article 56(6) of the Charter, simply requires the Application to "be filed within a reasonable time from the date local remedies were exhausted or from the date set by the Court as being the commencement of the time limit within which it shall be seized with the matter". - 44 .lt emerges from the record that local remedies were exhausted on 15 October 2012, when the Supreme Court delivered its judgment. It is therefore that date which must be regarded as the starting point for calculating and assessing the reasonableness of the time, within the meaning of Rule 40(6) of the Rules of Court and Article 56(6) of the Charter.

<span id="page-14-0"></span>*⁵ Mohamed Abubakari v. Tanzania* (merits) (2016) ¹ AfCLR 599 § 64. See also *Alex Thomas v. Tanzania* (merits) (2015) ¹ AfCLR 465 § 64, and *Wilfred Onyango Nganyi and Others v. Tanzania* (merits) (2016) ¹ AfCLR 507 § 95.

<span id="page-14-1"></span>*⁶ Lohe Issa Konate v. Burkina Faso* (merits) (2014) ¹ AfCLR 314 § 77. See also *Peter Joseph Chacha v. Tanzania* (admissibility) (2014) ¹ AfCLR 398 §40.

- 45. The present Application was filed on 24 February 2017, four (4) years, three (3) months and nine (9) days after the exhaustion of local remedies. The Court must, therefore, decide whether or not this period is reasonable within the meaning of Charter and the Rules. - 46. The Court recalls that "...the reasonableness of ^a time-limit for filing ^a case depends on the particular circumstances of each case, and must be assessed on a case-by-case basis..."[7](#page-15-0) - 47. The Court has consistently held that the six-month time limit expressly provided for in other international human rights instruments cannot be applied under Article 56(6) of the Charter. The Court has therefore adopted a case-by-case approach to assessing the reasonableness of a time limit within the meaning of Article 56(6) of the Charter.[8](#page-15-1) - 48. The Court considers that, in accordance with its established jurisprudence on the assessment of reasonable time, the determining factors are, *inter alia,* the status of the Applicant , the conduct of the Respondent State or its officials. Furthermore, the Court assesses the reasonableness of the time limit on the basis of objective considerations. [9](#page-15-2) [10](#page-15-3) [11](#page-15-4) - 49. In the case of *Mohamed Abubakari v. Tanzania,* the Court held as follows: the fact that an Applicant was in prison; he indigent; unable to pay for a lawyer; did not have the free assistance of a lawyer since 14 July 1997; was illiterate; could not have been aware of the existence of this Court

<span id="page-15-0"></span>⁷ Beneficiaries of the *late Norbert Zongo, Abdoulaye Nikiema ditAblasse, Ernest Zongo and Blaise llboudo & Mouvement Burkinabe des droits de I'homme et des peoples v. Burkina Faso* (preliminary objections) , § 121.

<span id="page-15-2"></span><span id="page-15-1"></span>*⁸ Norbert Zongo ibid.* See also the judgment in *Alex Thomas v. Tanzania* (merits), §§ 73 and 74. *⁹ Alex Thomas v. Tanzania* (merits) (2015) ¹ AfCLR 482, §74.

<span id="page-15-3"></span>*¹⁰ Anudo Ochieng Anudo v. United Republic of Tanzania* (merits) (2018) 2 AfCLR 248 § 58.

<span id="page-15-4"></span>¹¹ As the date of deposit of the Declaration recognising the Court's jurisdiction, in accordance with Article 34(6) of the Protocol.

because of its relatively recent establishment; are all circumstances that justified some flexibility in assessing the reasonableness of the timeline for seizure of the Court.[12](#page-16-0)

50. Furthermore, in *Alex Thomas v Tanzania,* the Court justified its position as follows:

> Taking into account the situation of the Applicant, who is an ordinary, indigent and incarcerated person, and considering the time it took him to obtain a copy of the record of proceedings and the fact that he attempted to use extraordinary remedies such as the application for review, the Court concludes that all these factors are sufficient elements to explain why he did not bring the application before the Court until 2 August 2013, three (3) years and five (5) months after the filing of the declaration under Article 34(6). For these reasons, the Court concludes that the application was filed within a reasonable time after exhaustion of local remedies, in accordance with section 56(5) of the Charter.[13](#page-16-1)

- 51. It is also clear from the Court's case-law that the Court declared admissible an application brought before it three (3) years and six (6) months after the Respondent State deposited the Declaration under Article 34(6) of the Protocol accepting the Court's jurisdiction, having concluded that: "the period between the date of its referral of the present case, 8 October 2013, and the date of the filing by the Respondent State of the Declaration of recognition of the Court's jurisdiction to hear individual applications, 29 March 2010, is a reasonable time within the meaning of Article 56(6) of the Charter.[14](#page-16-2) - 52. In the instant case, the Applicant was not imprisoned, there were no restrictions on his movements after the exhaustion of local remedies, he

<span id="page-16-0"></span>*¹² Mohamed Abubakari v. Tanzania* (merits) *op.cit,* § 92.

<span id="page-16-1"></span>*¹³ Alex Thomas v. Tanzania* (merits), § 74.

<span id="page-16-2"></span>*¹⁴ Mohamed Aubakari v. Tanzania* (merits), § 93

was not indigent, and his level of education not only enabled him to defend himself, as evidenced by this Application filed on 24 February 2017, but also enabled him to become aware of the existence of the Court and the proceedings before it within a reasonable time. Moreover, the Respondent State deposited the Declaration recognising the Court's jurisdiction four (4) years, three (3) and nine (9) days before the exhaustion of local remedies.

53. In light of the foregoing, the Court considers that the period of four (4) years, three (3) months and nine (9) days that elapsed before the Applicant filed his Application is unreasonable within the meaning of Article 56(6) of the Charter and Rule 40(6) of the Rules. Consequently, it finds that the Application is inadmissible on this ground.

# **VIII. COSTS**

- 54. The Court notes that Rule 30 of its Rules provides that: "Unless otherwise stated, each party shall bear its own costs". - 55. Taking into account the circumstances of this case, the Court decides that each party shall bear its own costs.

#### **IX. OPERATIVE PART**

56. For these reasons,

## THE COURT:

*Unanimously and in default,*

i. *Declares* that it has jurisdiction; ii. *Declares* the Application inadmissible;

iii. *Declares* that each party shall bear its own costs.

#### **Signed:**

| X'<br>President;<br>Sylvain ORE, | | |---------------------------------------------|--| | Vice<br>Ben KIOKO,<br>President; | | | Judges<br>Rafaa BEN ACHOUR, | | | V. MATUSSE,<br>Angelo<br>Judge;<br>> | | | Suzanne MENGUE,<br>Judge; | | | JudgeX^<br>R. CHIZUMILA,<br>Tujilane | | | Judge/<br>Chafika BENSAOULA, | | | Blaise TCHIKAYA,<br>Judge; | | | Judgej^v^X-^-^<br>ANUKAM,<br>Stella I.<br>• | | | T<br>Imani D. ABOUD,<br>Judge;<br>-z<br>< | | | and | | | Robert<br>ENO,<br>Registrar. | |

In accordance with Article 28(7) of the Protocol and Rule 60(5) of the Rules, the joint Separate Opinion of Justices Rafaa BEN ACHOUR and Blaise TCHIKAYA is attached to this judgment.

Done at Arusha, this Twenty-Sixth Day of June in the year Two Thousand and Twenty, in English and French, the French text being authoritative.

### FIDELE MULINDAHABI v. REPUBLIC OF RWANDA

Application No. 04, 05, 10 and 11 of 2017

JUDGMENTS 26 JUNE 2020

# Separate Opinion

of Judges Rafaa Ben Achour and Blaise Tchikaya

- 1. We concur with the position adopted by the Court on admissibility, jurisdiction and operative provisions in the four *Mulindahabi v. Rwanda* judgments adopted by unanimous decision of the judges sitting on the bench. - 2. By this Opinion, we wish to express a position on a point of law. This opinion clarifies a point relating to the Court's subject-matter jurisdiction on which our Court has often proceeded by economy of argument. - 3. In our view, Article 3 of the Protocol, while taking account of the general framework of the jurisdiction it lays down, should also be understood in terms of the scope given to it by Article 7 of the same Protocol. Since the *Mulindahabi* species do not pose any particular problems of jurisdiction, there were no a priori reasons for the emergence of such a debate. However, the question did emerge and therefore required clarification which would be valid for other judgments delivered or to be delivered by the Court. - 4. A breadcrumb trail structures the analysis. These are two waves of decisions that characterize the Court's jurisprudence. The cut-off point is generally in 2015, when the Court delivers its *Zongo¹* judgment. The decision on jurisdiction in this case is given in 2013. It can be supported because a reflection seems to be beginning on the choices in terms of procedure with the *Mohamed Abubakari* judgment in 2016². The Court begins to work, as noted by Judges Niyungeko and Guissé, more "distinctly: first all questions relating to its jurisdiction (both the preliminary objection and the question of its jurisdiction under the Protocol), and then all questions relating to the admissibility of the application³.

^&lt;sup>1</sup> AfCHPR, Beneficiaries of late Norbert Zongo, Abdoulase Nikiema alias Ablasse, Earnest Zongo and Blaise Ilboudo and the Burkinabé Movement of Human and Peoples' Rights v. Burkina Faso, Judgement on Reparations, $5$ June 2015.

<span id="page-20-0"></span>^&lt;sup>2</sup> AfCHPR, Mohamed Abubakari v. United Republic of Fanzania, 3 June 2016, §§ 28 and 29

^&lt;sup>3</sup> Dissenting opinion of Judges Gérard Niyungeko and El Hajji Guissé in the Urban Mkandawire v. Republic of Malawi judgment, 21 June 2013.

5. Thus, in the first part, we shall examine the state of the matter, i.e. the envisaged readings of Articles 3 and 7 of the Protocol in determining the Court's subjectmatterjurisdiction. In the second part, devoted to the second wave of decisions, the use of Articles 3 and 7 will evolve.

# **I. Article 3 and 7 of the Protocol through the Court's doctrine and case-law**

6. In our view, the two Articles 3 and 7 of the Protocol should be read together, as one sheds light on the other. They are complementary. For the reasons that follow, they cannot be separated. The Court's subject-matter jurisdiction is therefore based on both the first paragraph of Article 3 and Article 7 of the Protocol. We shall first present a restrictive reading of these provisions (A) before turning to their reference in certain decisions of the Court which we describe as first wave (B).

## **A. A restrictive reading of Articles 3 and 7 of the Protocol**

7. Article 3(1) of the Protocol, on the jurisdiction of the Court, reads as follows:

"1. The jurisdiction of the Court shall extend to all cases and disputes submitted to it concerning the interpretation and application of the Charter, this Protocol and any other relevant human rights instrument ratified by the States concerned".

Article 7, on applicable law, states in one sentence that:

"The Court shall apply the provisions of the Charter and any other relevant human rights instruments ratified by the States concerned".

8. Different readings of these two Articles have emerged. Reading them separately, some have argued that their functions should not go beyond the title given to them by the successive drafters of the Convention. Article 3(1) applying strictly and exclusively to the jurisdiction of the Court and the other, Article 7,

referring solely to the applicable law. This approach is restrictive and, in fact, does not correspond, on closer inspection, to the approach which the Court itself has followed through its case-law since 2009.

- 9. It was also noted that Article 7 would be a mere repetition of Article 3(1) and is, in this respect, superfluous. Professor Maurice Kamto supports this reading in particular when he states that "Articles 3 and 7 are a legal curiosity" . They would have no equivalent in the statutes of other regional human rights jurisdictions. The "Ouagadougou Protocol should have confined itself to this provision, which makes Article 7 all the more useless as its content is likely to complicate the Court's task" . 4 5 - 1 0.lt is not clear whether the drafters of the Protocol intended to exclude certain categories of legal rules, such as custom, general principles of law, etc., from the scope of the Protocol. The use of the phrase "ratified by the States concerned" in both Articles might lead one to believe that the Court should only take into account conventions ratified by States. It would be difficult to explain why the next paragraph, 3(2), recognizes the Court's "jurisdiction". It is well known that for the purpose of establishing the grounds for its jurisdiction, the scope of the applicable law should be opened up. The Court cannot, as will be discussed below, be limited in the reasons for its jurisdiction when it is challenged. In the latter case there is a clear manifestation of the link between Article 3 and Article 7 of the Protocol. [6](#page-22-0) - 11 . This was, in short, the interpretation adopted by the Court on the reading of Rule 39 of its Rules:

⁷¹ COTbTientoy qd Article ⁷ of the Protocol. 7*Afimin Charier on Human and Peoples' Kights and ihe Prolog on lire Es:t<s^s^hmeni ofthe Chart. urtfcte-bK^rhiclecommentarw* edited by M. Karrito\ Hd. Bruylanl. 201 1,. pp. I296crscq.

*⁴ Idem*

<span id="page-22-0"></span>⁶ Profess Kamto tends towards this appreciation, lie states thas''The restriction of the law applicable by the Cmil to (he Charter and tlwsawd litagal creates an effect of implicit amputation of the scope the relevant nites applicable by ^K deprives the Court and the partio brought before if o'f t-hc application or invocatioim of "African practices- in comfermity with international standards retailing to-1^ pe<^\*Uc^\*' riglrJ^. ansi(Mm generally accepted law;. geoicral principles of' law rcu<rptj.5ed by Afrksn iTXtcw, as wJJ case few Md doctrine". referred to in Article & If of the *ACIICR,* v. Idem, 1297.

"1. The Court shall conduct ^a preliminary examination of its jurisdiction and the admissibility of the application [...].

2 ... the Court may request the parties to submit any factual information, documents or other material considered by the Court to be relevant".

In calling for "the submission of any information relating to the facts, documents or other materials which it considers relevant", the Court wishes to inquire into all aspects of the applicable law, as noted in the heading of Article 7.

12 . The other reading is to regard the two Articles as complementary and, where the conflict so requires, as being necessary for the Court to further develop its jurisdiction. This was not the case in the *Mulindahabi* decisions, but the Court has done so on various occasions.

### **B. The Court's reading of Articles 3 and 7 in its first wave of decisions**

- 13. The first phase of the Court considered in the interest of the analysis ranges from the *Michelot Yogogombaye* judgment (2009) to the *Femi Felama* judgment (2015). This breakdown shows the evolution of the Court and its judicial involvement on the one hand, and on the other hand, it makes it possible to periodize its commitments as to the bases of its jurisdiction. *7 [8](#page-23-0)* - 14. The Court has always accepted that the provisions of Articles 3 and 7 provide a firm basis for its jurisdiction to respond to human rights disputes. It has done so from its earliest years, it had perceived the openings left by its jurisdiction as formulated in the Protocol. The former Vice-President of the African Court, Judge Ouguergouz, states in his study that: "Article 3 § ¹ of the Protocol provides for a very broad substantive jurisdiction of the Court [...]. The liberal nature of this provision is confirmed by Article 7, entitled "Applicable law"9.

¹ AfCHiPIC *. Michelot yogogwibaye* v *Republic ofSenegal.* ¹⁵ December 2009; see LoffeJtnanTM.). *Recent jurisprudence ^ofthe African Cows on Human and Peoples'* Published by Deulshed¹ Gescll^hail't... GIZ, 20H6. p\ 2.

<span id="page-23-0"></span>⁸ AfClin^IK. *b'emi I'ulana* v. *African Canwiisston on Human and Peoples' Rights.* Order, 20 November 20,15,

l) Owguogouz (['.), La Cour alucMiie' des droiits de mijommc ci dies pcuirta - Gros plan sur Ie prcmi:cr judteiwire africain a vocation contincntalc, *Annuaire fran^ais de droit international.* volume 52. 2006. pp. 2)3 240.

- 15. Two elements are apparent in the provisions of Articles 3(1) and 7 of the Protocol: first, the case where the disputes in question are based from the outset on provisions of the Charter; second, where the Court, not having a clearly defined rule, would have to seek them in conventions ratified by the Respondent States. In reality, the Court has always used both approaches. It has always found itself drawn into international law whenever it is part of the law accepted by States. - 16. What the Court is seeking to do from 2011 in the case of *Tanganyika Law Society and The Legal And Human Rights Centre v. United Republic of Tanzania and Reverend Christopher Mtikila v. United Republic of Tanzania:*

The Court also had to rule on the issue of applicability of the Treaty establishing the East African Community, in light of Articles 3(1) and 7 of the Protocol, as well as Rule 26(1)(a) of the Rules of Court. These three provisions contain the expression "any other relevant human rights instrument ratified by the States concerned" which expressly refers to three conditions: 1) the instrument in question must be an international treaty, hence the requirement of ratification by the State concerned, 2) the international treaty must be "human rights related" and 3) it must have been ratified by the State Party concerned[10](#page-24-0).

- 17. The 2015 *Femi felana* case, which completes the first wave of the Court's decisions, expresses in all cases the Court's two-step reasoning on its jurisdiction. In the first stage, it states the basis of its jurisdiction (Article 3(1)) and in the second stage, it gives, through the applicable law (Article 7), the reasons for its choice. - 18.1n this case, the application was directed against an organ of the African Union, established by the African Charter on Human and Peoples' Rights, namely, the African Commission on Human and Peoples' Rights. Under Article 3(1) of the Protocol, the Court first states that it has jurisdiction to hear and determine all

<span id="page-24-0"></span>¹⁰ AIC'I' 1PR, *Tanganyika I.aw Society and The Legal And Hitman Rights Centre* v. *United Republic ofTanzania and Reverend Christopher Mtikila* v. *United Republic ofTanzania.* 2.2 Scptembeii ²⁰¹ I, Band 14,

cases and disputes submitted to it concerning the interpretation and application of the Charter, the Protocol and any other relevant human rights instrument ratified by the States concerned. It goes on to say that, although the facts giving rise to the complaint relate to human rights violations in Burundi, it was brought in the present case against the Respondent, an entity which is not a State party to the Charter or the Protocol. Finally, in its reasoning in § 16 of the judgment, the Court bases itself on a consideration of general applicable law.

"The relationship between the Court and the Respondent is based on the complementarity. Accordingly, the Court and the Respondent are autonomous partner institutions but work together to strengthen their partnership with a view to protecting human rights throughout the continent. Neither institution has the power to compel the other to take any action[11](#page-25-0).

The Court's application of genera! law reflects the complementarity between that law and the law that governs its substantive jurisdiction.

19. The same approach is found in the discussion on jurisdiction in the *Zongo* (2013)[11](#page-25-0) case. The Court states that: "Linder Article 3(1) of the Protocol ... and Article 3(2) of the same Protocol, "in the event of a dispute as to whether the Court has jurisdiction, the Court shall decide ...". It goes on to state, appropriately, that :

> "The Court goes on to note that the application of the principle of the nonretroactivity of treaties, enshrined in Article 28 of the Vienna Convention on the Law of Treaties of 23 May 1969, is not in contention between the Parties. What is at issue here is whether the various violations alleged by the Applicants would, if they had occurred, constitute "instantaneous" or "continuing" violations of Burkina Faso's international human rights obligations".

20.lt is apparent that the Court's reasoning does not focus strictly on the rules concerning its jurisdiction, but also extends it to the law applied by it.

<span id="page-25-0"></span>¹¹ AfCHPR, *Beneficiaries of late Norbert Zongo, Abdoulaye Nikiema alias Ablasse, Ernest 'Zongo and Blaise Uboudo and the burkinabe Movement of Human and Peoples' Rights* v. *Burkina l'aso.* Decision on Preliminary Objections. ² ^I June 2013, § 61. 62. 63.

# **II. The relationship between Articles 3 and 7 of the Protocol as regards the Court's subject-matter jurisdiction: confirmation in the second wave of decisions**

21. The drafters of the Protocol provided judges with a kind of "toolbox" through these two articles, which they would make good use of. They are only bound by the consistency and the motivation of their choice. Indeed, quite obviously, the two articles have often been used together in the Court's second decade of activity. It will first be shown that the Court's approach is also present in international litigation.

# **A. The Court's approach is confirmed by the practice of international litigation**

- 22. This approach is known from international litigation, even before the African Court was established. It is, in fact, consistent with the logic of law. Its manifestation can be found in jurisprudential work as old as that of the Permanent Court of International Justice (PC ^I J) confirmed by the jurisprudence of the International Court of Justice (ICJ). - 23. It was by reasoning on its applicable law that the PCIJ extended its jurisdiction to human rights issues long before the wave of such law following the Second World War. The august Court was already doing its job of protecting fundamental rights in well-known cases[12](#page-26-0). - 24. There has been a known shift in the jurisdiction of arbitral tribunals in this area. The jurisdiction of these courts is strictly fixed within conventional limits, but they have integrated human rights issues by making a specific reading of their applicable law[13](#page-26-1).

<span id="page-26-0"></span>¹² CPJL Advisory Opinion. *Minority Schools in Albania.* 6 April 1935; Advisory Opinion. German Settlers in Poland. ¹⁰ September 1923; Advisory Opinion. *Treatment oj Polish Nationals and Other Persons oj Origin.* ⁴ February 1932

<span id="page-26-1"></span>¹³ Cazala (J.). Protection des droits de I'homme ct contcnticux international de ^I 'invcstissement. *Les Cahiers de PArbitrage,* 2012-4. pp. 899-906. v. in particular. Tribunal arbitral CIROI (MS). S. A., 29 May 2003, *Tecnicas Medioambientales Teemed SA* v. *Mexico.* 122-123: S. A.. CIRDL *Azurix Corporation v. Argentina,* 14 July 2006, §§ ³¹ 1-312; see S. A., ICSID (MS). *Robert Azmian and Others* v. *Mexico.* ARB(AF)/97/2. ^I November 1999. §§ 102-103. 25. The African Court already applies this methodology, which is well known in international litigation law. In addition to generally having the "competence of jurisdiction" in the event of a dispute, the international courts and the international instruments creating them often give them the legal basis to deploy their jurisdiction. In a complex argumentation the ICJ recalled that it has :

> "an inherent power which authorizes it to take all necessary measures, on the one hand, to ensure that, if its jurisdiction on the merits is established, the exercise of that jurisdiction does not prove futile, and, on the other hand, to ensure the regular settlement of all points in dispute...."[14](#page-27-0) .

Professors Mathias Forteau and Alain Pellet saw this as a kind of implicit jurisdiction within the competence of the International Court of Justice[15](#page-27-1).

- 26. Sometimes the international judge, in order to clarify a position or to explore other aspects inherent in its jurisdiction, uses the applicable law rather than the strict rules which conventionally define and frame its jurisdiction. - 27. The affirmation of the role of the ICJ in international human rights law provides an example of this. In 2010, the Court in The Hague rendered its judgment on the merits in the case of *Ahmadou Sadio Diallo - Guinea v. Congo-Kinshasa .* The Court ruled on claims of violations of human rights treaties. This case showed that, in addition to having general jurisdiction over the rights of States, *[16](#page-27-2)*

<span id="page-27-0"></span>*¹⁴ Nuclear Tests Case (New '/.eulaacl ^w France).* Judgment of 20 December 1974, KR 1974. pp. 259-463

<span id="page-27-1"></span>¹⁵ Forteau (M.)and Pellet (A.). *Droil international public.* I'd. LGDJ. 2009, p. 1001; Visschcr (Ch. De), Quclqucs aspects rcccnls du droil procedural de kt CIJ, lid. Pcdonc. 1966, 219 p.; Santulli (C.). Les juridictions de droit international : cssji d'identi fication, AI DI, 2001, pp. 45-61.

<span id="page-27-2"></span>¹⁶ The ICJ states that "having regard to the conditions under which Mr. Diallo was expelled from Congolese territort on 31 January 1996. the Democratic Republic of the Congo violated Article ¹³ of the International Covenant on Civil and Political Rights and Article 12. paragraph 4, of the African Charter on Human and Peoples' Rights", or that "having regard to the conditions under which *Mr. Diallo* was expelled from Congolese territory on ³¹ January 1996. the Democratic Republic of the Congo violated Article ¹³ of the International Covenant on Civil and Political Rights and Article 12, paragraph 4. of the African Charter on Human and Peoples' Rights", or that "having regard to the conditions under which Mr. Diallo was expelled from Congolese territory on ³ ^I January 1996. the Democratic Republic of the Congo violated Article ¹³ of the International Covenant on Civil and Political Rights and Aniclc 12. paragraph 4, of the African Charter on Human and Peoples' Rights". Diallo was arrested and detained in ¹995-1996 with a view to his deportation, the Democratic Republic ofthe Congo violated aniclc 9, paragraphs ^I and 2. ofthe International Covenant on Civil and Political Rights and article 6 ofthe African Charter on ¹ luman and Peoples' Rights. This ease showed that the general jurisdiction enjoyed by the ICJ. which relates to "any matter of international law" under Article 36 \$2 (b) of its Statute, can be extended to human rights.

the International Court of Justice could without hindrance to its jurisdiction, deal with the question of human rights.

- 28. In this sense, it may be observed that an increasing number of international courts have specialized in human rights, without having an initial mandate to do so. On closer inspection, this is mainly due to their *applicable law.* The crosscutting nature of the rules of international law has a clear impact on the deployment of jurisdiction. It is thus understandable that in addition to the provisions framing the jurisdiction, the Protocol establishing the African Court has taken them over in terms of applicable law. - 29. The same analysis can be made with regard to the European Court of Human Rights. In the *NicolaiSlivenko* judgment of 2003, the Court stated that it should not "re-examine the facts established by the national authorities and having served as a basis for their legal assessment" by reviewing the "findings of the national courts as to the particular circumstances of the case or the legal characterization of those circumstances in domestic law", but at the same time recognized that it was part of its task "to review, from the Convention perspective, the reasoning underlying the decisions of the national courts". The doctrine derived from the idea that the Court was increasing the intensity of its review of judicial decisions. This can only be achieved through a broad reading of the law which the Court is mandated to apply. It can thus be said that the applicable law and jurisdiction stand together, the latter is undoubtedly a common thread. *[17](#page-28-0)*

## **B. Links established between Articles 3 and 7 in the second wave of Court decisions**

30. Where the Court finds a difficulty or possible challenge to its jurisdiction, it shall combine the two Articles 3(1) and 7. It uses these two complementary texts. It does not, however, feel bound to indicate explicitly the use thus made of Article 7, and that is what we regret.

<span id="page-28-0"></span>¹⁷ LOIR. *Nicolai Slivenko* v. *Latvia.* 9 October 2003

31. In its *Abubakar/¹⁹* judgment, the Court emphasizes :

"28 More generally, the Court would only act as an appellate court if, inter alia, it applied to the case the same law as the Tanzanian national courts, i.e., Tanzanian law. However, this is certainly not the case in the cases before it, since by definition it applies exclusively, in the words of Article 7 of the Protocol, "the provisions of the Charter and any other relevant human rights instruments ratified by the State concerned".

In the following paragraph, it concludes:

"On the basis of the foregoing considerations, the Court concludes that it has jurisdiction to examine whether the treatment of the case by the Tanzanian domestic courts has been in conformity with the requirements laid down in particular by the Charter and any other applicable international human rights instruments. Accordingly, the Court rejects the objection raised in this regard by the Respondent State".

32. In the 2016 case, *Ingabire Victoire Umuhoza v. Republic of Rwanda¹⁹,* the Court states, once again, without citing Article 7, that :

> "As regards the application of the Vienna Convention to the present case, the Court observes that while the declaration made under Article 34(6) emanates from the Protocol, which is governed by the law of treaties, the declaration itself is a unilateral act which is not governed by the law of treaties. Accordingly, the Court concludes that the Vienna Convention does not apply directly to the declaration, but may be applied by analogy, and the Court may draw on it if necessary. (...) In determining whether the withdrawal of the Respondent's declaration is valid, the Court will be guided by the relevant rules governing declarations of recognition of jurisdiction as well as by the principle of the sovereignty of States in international law. With regard to the rules governing the recognition of jurisdiction of international courts, the Court notes that the

ls AfCI IPR. *Mohamed Abubakwi* v. *llniled Republic* ³ June 2016, \$§28 and 29.

w AiCIi ^I PR, *ingub&re Umuhoza* v. *Republic ofRwimdu.* Decision on the Withdrawal of the Declaration, 5 September 2'016

provisions relating to similar declarations are of an optional nature. This is demonstrated by the provisions on recognition of the jurisdiction of the International Court of Justice,4 the European Court of Human Rights5 and the Inter-American Court of Human Rights", §§ 55 and 56.6.

- 33. However, the Court says that it is guided by the relevant rules governing declarations of recognition of jurisdiction as well as by the principle of the sovereignty of States in international law, it is a recourse to Article 7 of the Protocol. In that the latter article allows it to rely on any relevant human rights instrument. - 34. On its jurisdiction in the *Armand Guehi* case in 2016, the Court proceeds in the same way. It cites Article 3(1), but resorts to other texts. One wonders whether the Court simply finds its jurisdiction in respect of interim measures or whether it simply applies provisions outside the Charter to do so It says: *20*

"Having regard to the particular circumstances of the case, which reveal a risk that the death penalty might be imposed, thereby infringing the Applicant's rights under Article 7 of the Charter and Article 14 of the International Covenant on Civil and Political Rights, the Court decides to exercise its jurisdiction under Article 27(2) of the Protocol", § 19.

35. The complementarity between these two Articles, which should be cited together, is expressed. For in Article 3(1) the Court finds its jurisdiction without difficulty and bases it on it; and in Article 7 the Court, by having recourse to other texts, is also founded in law by virtue of the fact that its applicable law authorizes it to do so. Accordingly, in the *Actions for the Protection of Human Rights (APDH) v. Republic of Cote d'Ivoire* judgment also delivered in 2016, from § 42 to § 65, the Court sets out a reasoning for establishing its jurisdiction. This can only be understood by reading the two articles, 3(1) and 7 together. In particular, it says that: *[21](#page-30-0)*

<span id="page-30-0"></span>AfCHPR, .-I*nmmd (juehi* ^v *United Republic ofTanzania.* Interim Measures Order, ¹⁸ March 20.16 ²¹ ^A fCIIPR, *Actions for the Protection of Human Rights (APDH)* y. *Republic of Cole d'Ivoire (Merits),* ¹⁸ November 2016.

"The African Institute of International Law notes that the link between democracy and human rights is established by several international human rights instruments, including the Universal Declaration of Human Rights, Article 21(3), (...) The Institute further maintains that the African Charter on Democracy is a human rights instrument in that it confers rights and freedoms on individuals. According to the Institute, the Charter explains, interprets and gives effect to the rights and freedoms contained in the Charter on Human Rights, the Constitutive Act of the African Union, the Grand Bay Declaration and Plan of Action (1999), the Declaration on the Principles Governing Democratic Elections in Africa5 and the 2003 Kigali Declaration".

36. The Conclusion on jurisdiction that follows from this suite of instruments in § 65 is suggestive:

> "The Court concludes that the African Charter on Democracy and the ECOWAS Protocol on Democracy are human rights instruments, within the meaning of Article 3 of the Protocol, and that it is therefore competent to interpret and apply them."

- 37 It follows that the Court in its first decade uses Article 3(1) to determine its jurisdiction as set out in the Protocol. As in established judicial practice, the Court uses the applicable law recognized by the "States concerned" to extend or further establish its jurisdiction. In this case, it makes use of Article 7 of the Protocol. The question of priority between the two Articles does not arise, as it is a matter of the particular case and of the choice made by the Court. The two Articles are equally involved in the general question of the Court's jurisdiction to hear cases. - 38 In its judgment in Jonas (2017), at paragraphs 28, 29 and 30, the Court goes beyond Article 3 on its own motion, stating that:

"Article 3 of the Protocol does not give the Court the latitude to decide on the issues raised by the Applicant before the domestic courts, to review the judgments of those courts, to assess the evidence and to reach a conclusion", §25.

39. It concludes that it has jurisdiction as follows:

"The Court reiterates its position that it is not an appellate body in respect of decisions of the domestic courts. However, as the Court emphasised in its judgment in Alex Thomas v. the United Republic of Tanzania, and confirmed in its judgment in *Mohamed Abubakari v. the United Republic of Tanzania*, this circumstance does not affect its jurisdiction to examine whether proceedings before national courts meet the international standards established by the Charter or other applicable human rights instruments. The Court therefore rejects the objection raised in this regard by the Respondent State and concludes that it has subject-matter jurisdiction²². The Court does not appear to be taking a position on the question of which of the two Articles is the basis for its jurisdiction.

40. In order to refute the Respondent State's contention and to establish its jurisdiction in the $Nguza^{23}$ Judgment, the Court begins by relying first on its own jurisprudence²⁴. It goes on to have recourse to the applicable law in general, namely:

> "as it stressed in the judgment of 20 November 2016 in the case of Alex Thomas v. United Republic of Tanzania and confirmed in the judgment of 3 June 2016 in the case of *Mohamed Abubakari v. United Republic of Tanzania*, this does not exclude its jurisdiction to assess whether proceedings before national courts meet the international standards established by the Charter or by other applicable human rights instruments to which the Respondent State is a party", §§ 33 et seq.

It then infers jurisdiction from this and refers to Article 3 of the Protocol:

<span id="page-32-0"></span>^&lt;sup>22</sup> AfCHPR, Christopher Jonas v. United Republic of Tanzania, Judgment, 28 September 2017: Convicted and sentenced for robbery of money and various other valuables, Mr. Christopher Jonas filed this application alleging a violation of his rights during his detention and trial. The Court found that the evidence presented during the domestic proceedings had been assessed according to the requirements of a fair trial, but that the fact that the Applicant had not received free legal aid constituted a violation of the Charter.

^&lt;sup>23</sup> AfCHPR, Nguza Viking (Babu Seya) and Johnson Nguza (Papi Kocha) v. Republic of Tanzania, 23 March 2018. ²⁴ AfCHPR, 15/3/2013, Ernest Francis Mingwi v. Republic of Malawi, 15 March 2013, § 14; Alex Thomas v. United Republic of Tanzania, 20 November 2015, §: 28/3/2014, Peter Joseph Chacha v. United Republic of Tanzania, 28 March 2014, § 114; Ernest Francis Mingwi v. Republic of Malawi, 15 March 2013, § 14.

Accordingly, the Court rejects the objection raised by the Respondent State, It has subject-matter jurisdiction under Article 3(1) of the Protocol, which provides that the Court "shall have jurisdiction in all cases and disputes submitted to it § 36.

- 41. This reversal of logic by the Court is not in vain. It makes it possible to appreciate how the applicable law is not external to the determination of jurisdiction, which is well defined by the Protocol. - 42. Orders for the indication of provisional measures do not present the same difficulties. It may be observed, as in the *Ajavon* Case, that the Court's prima facie decision does not require recourse to its applicable law (7 Article). This is stated in paragraph 28: *25*

"However, before ordering interim measures, the Court need not satisfy itself that it has jurisdiction on the merits of the case, but merely that it has *prima facie* jurisdiction".

The Court does not have such jurisdiction.

43. Article 3, in particular the first paragraph, sets out the scope of the Court's jurisdiction. However, this cannot be understood without the law which the Court applies, that is, Article 7, with which it should be more regularly associated in its decisions. This scope of jurisdiction is not limited...as long as the Court is within its applicable law, it is within its jurisdiction. This place of applicable law is also present when discussing the Court's jurisdiction to hear a case under Article 3(2). The links between these articles are at the root, they are ontological.

AfCHPR. *Sebastien Germain Ajavon* v. *Republic ofBenin,* Order. ⁷ December 2018.

Rafaa Ben Achour

Judge of the Court

Arusha, 5 July 2020

Blaise Tchikaya