*
329. At the hearing, the Applicant State reiterated the content of its submissions.
It also argued that in the present case, it is not bound by the obligation
arising from Articles 28 and 29 of the Great Lakes Pact since it did not relate
to this Court, but rather to the “general mechanisms of justice” established
by the AU.
330. It further submitted that the procedure provided for in Articles 47 and 48 of
the Charter is optional and that referral to the Court without prior compliance
with that procedure does not contravene the Charter.
*
331. The Respondent State contends that the Applicant State’s argument should
not convince the Court. It argues that Communication DRC v. Rwanda,
Uganda and Burundi must be seen as a different situation, insofar as three
different States were involved, making it impossible to exhaust all local
remedies. It argues that in this Application, on the other hand, it is a sole
Respondent State and its courts are accessible to the Applicant State and
to the persons whose rights have allegedly been violated.
332. The Respondent State also submits, on the question of admissibility, that
the Court has often diverged from the Commission’s view, in particular by
holding in African Commission on Human and Peoples' Rights v. Republic
of Kenya, that while it is true that the admissibility criteria applied by the
Commission and this Court are similar in substance, it is the case that the
admissibility procedures with respect to an Application filed before the
Commission and this Court are distinct and shall not be conflated.
333. It concludes that the position adopted by the Commission in
Communication 227/99 – DRC v Rwanda, Uganda and Burundi is not
decisive and that the Court cannot be guided by it.
74
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