implored to “accord special importance to co-operation with those agencies”
and we have no doubt that in appropriate circumstances, a case may be made if
Partner States acted to the contrary.
59. In stating the above, the only rider is that this Court cannot purport to
operate outside the framework of the Treaty and usurp the powers of other
organs created for the enforcement of obligations created by other instruments
including the African Charter and Protocol.
60. The second aspect of this issue to address is the aspect of “delay” in
depositing the declarations.
61. Delay presumes that the Partner States have an obligation to a time frame
for doing so, but the language of Article 34(6) of the Protocol to the contrary is
merely that the State Partners shall do so “at the time of the ratification of the
Protocol or any time thereafter.”
62. There is no certainty in the above expression and in fact there is no
obligation to “expeditiously” deposit the declarations or to do so by a certain
date or to do so because the United Republic of Tanzania has done so but the
entire process is left to the sole discretion of the State Party. Delay cannot in
such circumstances be attributed to a party in a vacuum and that is all there is to
say.
63. Lastly, therefore, has the delay caused a violation of the Treaty? Of course
not and it is obvious why. The facts cannot point to a violation where the sole
discretion is left to the Partner State. Even if this Court could properly invoke
Articles 6(d), 7(2), 126 and 130 as it has, the facts do not point to a violation
and if there is a violation of the African Charter and Protocol, this is not the
forum to challenge such violation in the circumstances of this case.
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