15.
Indeed, Article 6 (1) only allows the Court to “request the opinion of the
Commission” on the admissibility of a “case instituted under Article 5 (3)” of
the
Protocol.
Article
6
(3),
for
its
part,
authorizes
the
Court
to
ask
the
Commission to itself make a determination on the admissibility of an
application. Absence of any reference to Article 5 (3) of the Protocol further
suggests that consideration of admissibility could apply not only to cases filed
by an individual or a non-governmental organization but also to those filed by a
State Party to the Protocol or an African inter-governmental organization.
16.
Apart from this latter proposition, my interpretation of Article 6 (3) is
corroborated by Rule 119 of the Rules of the Commission, entitled
“Admissibility under Article 6 of the Protocol”, and worded as follows:
“1,
Where,
pursuant
to
Article
6
of
the
Protocol,
the
Commission
is
requested to give its opinion on the admissibility of a communication
pending
before
the
Court
or
where
the
Court
has
transferred
a
communication to the Commission, it shall consider the admissibility of this
matter in accordance with Article 56 of the Charter and Rules
105, 106 and
107 of the present Rules.
2.
Upon
conclusion
communication
of
referred
the
to
examination
it
under
of the
Article
6
admissibility
of
the
of
the
Protocol,
the
Commission shall immediately transmit its opinion or its decision on the
admissibility to the Court”.
17.
This provision of the Rules of the Commission leaves no doubt as to the
fact that in both situations envisaged in Article 6 (1) and (3) of the Protocol, the
Commission considers that it is in duty bound to establish the admissibility of an
application relating to a matter over which the Court has declared that it had
jurisdiction; otherwise it would be difficult to understand why Rule 119 (2)
provides for the prompt transmission to the Court of the Commission’s opinion
or “decision”. The prompt transmission to the Court of the Commission’s
decision on the admissibility of an application would indeed be meaningless if
the Court were no longer to play any role in the handling of the case; the
underlying idea is that once it has deemed an application admissible, the Court
may then embark on a consideration of its merits.
18.
Unlike those of the Commission, the Rules of the Court do not provide
real clarification on the purpose of the transfer envisaged in Article 6 (3) of the
Protocol. Rule 29 (5) of the Rules of the Court indeed reads:
“a) Where the Court decides to transfer a case to the Commission pursuant
to Article 6 (3) of the Protocol, it shall transmit to the Commission a copy of