00054t
opinion, not only does the six years and two months' timeframe for bringing
an application before the Court exceed all the reasonable time limits, but that fact
also deserved to be noted. Until this Judgment, never had the African Court
stretched its indulgence to such limits and never had it dealt with an issue in such
a rapid and uncontested manner.
19. In my
IL
Settlement of the case by the Human Rights Committee
20. Just like Article 56 (6) of the Charter and Rule 40 (6) of the Rules, Article 56 (7) and
Rule 40 (7) ofthe Rules are aimed at preserving judicial safeguards by ensuring that a
case of human rights violation is not considered by several international courts at the
same time. Pursuant to these Articles and Rules, tbr an application to be admissible, it
must "not raise any matter or issues previously settled by the parties in accordance with
the principles of the Charter of the United Nations, the Constitutive Act olthe African
lJnion, the provisions o[ the Charter or any legal instrument of the African Union".
'l hese articles and Rules fail to mention cases where the principle of "non bis in idem"
has to apply. It simply presents a laconic formula which retbrs to the principles of the
UN Charter.
2I.
(lonsidering the deadline of six years and two months as reasonable, the Court declared
the Application admissible pursuant to Article 56 (7) of the Charter and Rule 40 (7) of
the Rules. It held that the case has been settled "in accordance with either the principles
of the Charter of the United Nations or the Charter of the Organiz-ation of African Unity
or the provisions of the present Charter." In making such a finding (the HRC's settlement
of the case). the Court rcf'ers to Gombert v. C.6te d'lvoire of 22March 2018 in which it
stated that: "The Court also notes that the notion of "settlement" implies the
convergence ofthree major conditions: (i) the identity of the parties; (ii) identiry of the
applications or their supplementary or alternative nature or whether the case flows from
a request made in the initial casc; and (iii) the existence of a first decision on the
merits."lo
22. ln the instant
case, in scrutinising the said three conditions, the Court failed to note that
the Gomberl case was settled by a sub-regional judicial body, namely, the Comrnunity
Court of Justice of the Economic Community of West African States (ECOWAS),
rvhereas the Derter case was befbre a quasi-judicial body, the HRC, whose "decisions"
do not constitule res judicala.
23. ln my opinion, the case has not been "settled" by the HRC. 1'he findings made by the
HRC are legally called "Views." As the name suggests, the Views of the HRC merely
"note^" "observe." "identily" a situation of human rights violations contrary to the
lnternational Covenant on Civiland Political Rights. This explains why the Committee
uses diplomatic and non-authoritative language at the end of its decision. in that it
"requests the Respondent State to llle, within 180 days, information about the measures
taken to give effect to its views, and also requests the Rcspondent State to publish the
HRC's Views and have them widely disseminated in the Respondent State." The
ro
ludgment, Para. 48
5