initial case, and the existence of a first decision on the merits. It also argues
that in the instant case, the Respondent State has itself acknowledged that
there is no decision on the merits concerning the Parties, therefore, it is not
necessary to ascertain whether the other conditions are met.
349. The Applicant State avers that, significantly, the identity of subject matter
between this Application and the one pending before the EACJ has not been
established. It argues that the latter relates to the interpretation and
application of the Treaty for the Establishment of the East African
Community with regard to violations of that instrument, whereas this
Application concerns the allegation of gross, flagrant and mass violations of
human rights.
350. Secondly, the Applicant State argues that the principle of res judicata should
also not be confused with the principle of non bis in idem. In its view, it
reflects a presumption of conformity with the law predicated upon a judicial
decision, which must therefore be binding on the parties. According to the
Applicant State , this requirement is laid down in Article 30 of the Protocol,
the content of which was clarified by the Court in the matter of Suy Bi
Gohoré Emile and Others v. Republic of Côte d’Ivoire.
351. In this respect, the Applicant State underscores that res judicata prevents a
legal issue decided between the same parties from being re-examined,
thereby calling into question the authority of an earlier decision which is
binding on the parties. It points out that infringement of the principle of non
bis in idem is always coupled with infringement of the principle of res
judicata, but the opposite is not always true.
352. It reiterates that the Respondent State itself has acknowledged that there is
no previous judicial decision relating to the violations alleged in this
Application. It concludes that the argument relating to non-compliance with
the res judicata principle cannot prosper in the instant case.
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