The Court’s power to transfer cases to the Commission

This piece focuses on the Court’s power to transfer cases to the Commission including an analysis of the four cases the Court has transferred so far and the future of the Court’s power to transfer.

The power to transfer a case is found in Article 6 (3) of the Protocol which reads “The Court may consider cases or transfer them to the Commission.”

On 16 June 2011 the Court rendered three decisions: Ababou v. Algeria (“Ababou”); Amare & Amare v. Mozambique & Mozambique Airlines (“Amare”); and Association Juristes D’Afrique Pour La Bonne Gouvernance v. Cote D’Ivoire (“Juristes D’Afrique”).

Ababou concerned the complainant’s forceful conscription into the Algerian army, Amare concerned alleged mistreatment of the complainants at the hands of Mozambique immigration officials and Mozambique Airlines, while in the Juristes D’Afrique case the complainant alleged Cote D’Ivoire had violated Articles 2, 4, 5 and 6 of the Charter.

Ababou and Amare were both found to be inadmissible for the familiar reason that Algeria and Mozambique had not accepted the Court’s jurisdiction to accept cases directly from individuals and NGOs through Articles 5 (3) and 34 (6) of the Protocol. In Juristes D’Afrique the Court found it lacked jurisdiction as the Commission had not granted the complainant NGO ‘observer status’, thus failing foul of the requirements laid out in Article 5 (3) of the Protocol. (For more on the importance of observer status for NGOs see my 28 February 2014 piece below).

However, not content with merely rejecting all three applications, the Court elected to use its power, as it understood it, to transfer all three cases to the Commission. Whilst the Court explicitly stated that it was transferring all three cases under Article 6 (3) of the Protocol, the reasons as to why it elected to do this are few and far between.

In Ababou the Court stated that it would be appropriate to transfer the case “in view of the allegations contained in the application”. As mentioned above, the decision does not divulge details as to what the allegations were other than the applicant’s alleged forced conscription into the Algerian army.

In Amare the Court similarly found that “in light of the allegations made in the application” it was appropriate to transfer the matter. This decision does provide a few more case facts, stating that the applicants, Ethiopian nationals, were intending to travel to Maputo, Mazambique via Nairobi, Kenya but instead the plane landed in Pemba, Mozambique where the applicant’s were allegedly stranded for 26 days. Whilst stranded the Mozambique authorities allegedly subjected them to “diverse hardships” included demands for bribes, robbery, torture and deportation to Dar-Es-Salaam, Tanzania. Only after the intervention of Tanzanian officials were the applicants returned to Pemba from where they were allegedly repatriated to Ethiopia. However, criteria as to why these allegations make the transfer of the case appropriate are absent.

In Juristes D’Afrique the Court found that “in view of the allegations raised in the application” it would be appropriate to transfer the case. As noted above, the Cote D’Ivoire NGO alleged violations of articles 2, 4, 5 and 6 of the Charter but the decision provides no further details.

We are therefore left with three decisions in which the allegations make it ‘appropriate’ to transfer the cases. However, with only the barest of information in Ababou, no information in Juristes D’Afrique, and limited information in Amare it is very difficult to ascertain what standard or test (if any) the Court used to decide on the appropriateness of the cases for transfer.

The Court’s approach to transferring cases came under renewed scrutiny later in 2011, when on 23 September 2011 the Court handed down judgement in Alexandre v. Cameroon and Nigeria (“Alexandre”). The applicant alleged violations by Cameroon and Nigeria of Articles 3, 5, 6, 7 and 13 (3) of the Charter. However, as Nigeria had not made the special declaration pursuant to Articles 5(3) and 34 (6) of the Protocol allowing individuals and NGOs to apply directly to the Court and Cameroon had not even ratified the Protocol the Court found it did not have jurisdiction.

Using vague criteria similar to the above mentioned cases, the Court decided that considering the allegations set out in the application, it “would be appropriate to transfer the matter” to the Commission. Once again we are left with no details on the either allegations, bar the articles of the Charter allegedly violated, or any analysis or reasoning on why the allegation was appropriate for transfer.

However, Alexandre was not unanimous.  Judge Ouguergouz included a lengthy dissenting opinion. In this opinion Judge Ouguergouz submits that the Court’s transfer of a case to the Commission where the Court has found that it lacks jurisdiction is not founded in law, and that by relying on Article 6(3) of the Protocol to transfer cases to the Commission over which the Court has declared it has no jurisdiction, the Court deviated from the initial purpose of the provision.

In support of this he argues that the heading of Article 6 – “admissibility of cases”- strongly suggests that the actions available to the Court under Article 6 (3) apply primarily to the consideration of the admissibility of a case over which the jurisdiction of the Court has already been established. In his view therefore Article 6 (3) either allows the Court to consider on its own the admissibility of an application which is within its jurisdiction or to entrust the consideration of admissibility to the Commission.

Judge Ouguergouz argues that his interpretation of Article 6(3) is corroborated by Rule 199 of the Rules of the Commission, entitled “Admissibility under Article 6 of the Protocol”. In his view this provision leaves no doubt that situations under Article 6(3) of the Protocol the Commission is duty bound to establish the admissibility of an application relating to a matter over which the Court has declared that it had jurisdiction.

In addition to this procedural analysis, Judge Ouguergouz also explained that he dissented on the more fundamental basis that the Court failed to give reasons to justify its decision, arguing that such justification is vital to the Court’s judicial function. He points out that in Alexandre and the three previous cases, the Court was of the opinion that it was “appropriate” to transfer the cases in light of the “allegations set out in the Application” without further clarification. Judge Ouguergouz argues that the Court ought to have set out reasons which lead the Court to decide to transfer these cases or why they were “appropriate”. Judge Ouguergouz submits that while the choice to transfer a case to the Commission remains discretionary, the choice cannot be made in a “hazardous and unpredictable way” or in an arbitrary manner “bereft of any apparent logical approach”.

He also argues that reasons should be provided so as to comply with the requirements of predictability and consistency which underpin the principle of legal certainty. He submits that in the absence of such objective criteria for the referral of the cases to the Commission over which the Court declares in lacks jurisdiction there is the “huge risk” that such a referral would become systematic.

Judge Ouguergouz also argues that even if the Court were to preserve the practice of referring to the Commission matters over which it finds it lacks jurisdiction it would be necessary for it to set out clear criteria. He suggests that the criteria would be guided by the nature or gravity of the violations, thus transferring applications which reveal the existence of a series of serious or massive violations of human and people’s rights, using the wording of Article 58(1) of the African Charter.

He argues that this path would lead to only cases of exceptional circumstance being transferred to the Commission, therefore playing the role of an “early warning mechanism” for the Commission similar to the one that may now play individuals and NGOs before the Commission evidence by the Commission’s own application in the Libya situation.

He also posits the possibility that the ultimate goal of a transfer could be for the Commission to consider the admissibility plus the merits of the case. He argues that guided by court determined criteria the Court could choose to not rule on the merits of a case over which it has jurisdiction, a system applied by the US Supreme Court. On the other hand, Judge Ouguergouz argues that deciding not to rule on the merits of cases over which it does have jurisdiction, could lead to a denial of justice, especially considering that only the Court has powers of a judicial nature, but this issue could be surmounted by “joint discussions” on the matter.

Judge Ouguergouz argues that these considerations go to the overarching issue of what role the Court intends to play within the African system of protection of human rights. He states that the Court may be flooded with a whole range of applications which it cannot dispose of satisfactorily because of limited resources at its disposal (perhaps a nod to the ECHR?)  In this situation the Court will need to decide whether to continue with the systematic consideration of all applications before it, or to sift the applications using a set of criteria and thus transforming itself into a judicial body regulating the entire African human rights protection system.

Analysis

The Court’s decision to transfer cases prior to Alexandre surely fall foul of any reasoned opnion criteria applied; they simply fail to provide any analysis, discussion or findings on the decision to transfer. I would suggest that theoretically the governments of Algeria, Mozambique and Cote D’Ivoire would have had strong grounds for challenging the Court’s decision to transfer on this very point through motions pursuant to Rule 66 (request for interpretation of a judgement or Rule 67 (request for review) for failure to provide reasoned judgements under Article 28(6) and Rule 61(1) ;  I note that these rule apply to ‘judgements’ rather than ‘decisions’ but would argue that the principles remain the same.

The dissenting opinion of Judge Ouguergouz in Alexandre therefore make for interesting reading, not least because it represents the only detailed discussion on the issue of transfer provided by the Court’s bench so far. His arguments on admissibility rather than jurisdiction are persuasive- not least on the obvious argument that Article 6 is entitled “admissibility of cases”- and demonstrates a misunderstanding by the Court between the first step of establishing jurisdiction, and admissibility, which can only be considered once jurisdiction is established.

Judge Ouguergouz’s opinions on the Court’s complete failure to provide criteria, analysis or reasoning for the transfer of the cases are also convincing and are best summed up by Judge Ouguergouz’s own description of the “hazardous and unpredictable way” and arbitrary manner “bereft of any apparent logical approach” with which the Court transferred the cases.

I also agree that whether the Court continues to consider it power to transfer cases rests on those within its jurisdiction (to my mind the more persuasive) or outside its jurisdiction (as per the cases transferred so far) court determined criteria must be established to ensure legal certainty.

I am however curious if the Court were to take the Ouguergouzian view and only consider for transfer cases within its jurisdiction what the point of transfer would be. Judge Ouguergouz mulls this issue in the last part of his dissent, and comes up with the possibility of the Court acting as check point of sorts from which applications are either considered by the Court or sent to the Commission, or perhaps even subject to “joint discussions”. However, the Court and Commission fulfil different roles in the system of human rights protection in Africa. As Judge Ouguergouz rightly points out, only the Court has judicial powers and with it can provide judicial relief to applicants.  I am not convinced that the most serious of human rights cases would benefit from consideration by the Commission rather than through the judicial lens of the Court which has the power to effect change at government level and provide reparations to applicants. The idea that applicants’ cases could be transferred to the Commission despite the Court having jurisdiction also ignores the fact that the applicant has elected to go down the Court rather than Commission route – would the applicant have a say in electing which body should hear their case?

It’s always dangerous to speculate on judges’ deliberations, but on the reasonable assumption that Judge Ouguergouz would have circulated his dissenting opinion prior to the rendering of the decision in Alexandre and the Judges failure to follow his lead we can assume that the Bench was not convinced by Judge Ouguergouz’s submissions. On the other hand, as per the Court’s website, the Court has not transferred any cases since Judge Ouguergouz’s dissent in Alexandre.

I would suggest the Court re-examine this issue in light of Judge Ouguergouz’s dissenting opinion at the earliest opportunity. The issue of transfer is of vital importance in the context of the relationship between the Court and the Commission and the larger context of the African system of protection of human rights. How, when and why a case may be transferred from the Court to the Commission is an issue which should be discussed in greater detail by the Court and soon.

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