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UNIAO AFRICANA
AFRICAN COURT ON HUMAN AND PEOPLES’ RIGHTS
COUR AFRICAINE DES DROITS DE L'HOMME ET DES PEUPLES
Urban Mkandawire v.The Republic of Malawi
(Application No. 001/2013)
Separate Opinion of Judge Fatsah Ouguergouz
1, Even though I subscribe to the conclusions reached by the Court concerning
the inadmissibility of the applications for interpretation and review of its
judgment of 21 June 2013, filed by Mr. Urban Mkandawire, I do not entirely
share the reasoning adopted to arrive at these conclusions and would like to
explain why.
1— Concerning the application for interpretation
2. In paragraph 6 of the present judgment, the Court notes, and rightly so, that in
terms of Rule 66 (1) of the Rules, any party may request the Court to give an
interpretation “for the purpose of executing a judgment”, and that, in the instant
case,
the judgment
for which
interpretation
is sought,
has
declared
that the
application is inadmissible for failure of exhaustion local remedies by the
Applicant. The Court then points out that the judgment in question imposesno
obligation capable of being executed and concludes that the application for
interpretation is not possible in terms of the relevant provisions of the Protocol
and the Rules. In my opinion, that is what would have been enough to say on the
matter.
3. The Court however deemed it necessary to consider whether a second
condition under Rule 66 of the Rules was met, that is to say that the application
shall “state clearly the point or points in the operative provisions of the
judgment on which interpretation is required”.
4.1In that regard, the Court notes thatthe application is, on the contrary,
“generally incoherent and incomprehensible”, and concludes that the nine
“points”mentioned by the Applicant can never be points for interpretation,'In
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:
' | would like to underline here that one of the nine «points» referred to bythe Applicantin
his application relates to paragraph 41 of the 21 June 2013 judgment, hit i8(i td\sayhits)
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operative part (see paragraph 4 (d) of the present judgment); it is howe
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ian
Commission and not for the African Court to respond to such a question.
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