hazardous and unpredictable way or in a manner bereft of any apparent logical
approach.
24.
The integrity of the Court’s judicial function indeed requires that
be provided for decisions adopted under the above-mentioned provision
comply with the requirements of predictability and consistency which
essential ingredients that underpin the principle of legal certainty which
be guaranteed by the Court at all times.
25.
In
of cases
there is
approach
reasons
so as to
are the
should
the absence of such objective criteria for the referral to the Commission
over which the Court declares that it manifestly has no jurisdiction,
the huge risk that such a referral would become systematic, which
seems to be fostered by the current practice.
26.
Furthermore, in the absence of objective criteria for transfers of cases to
the Commission, a dissenting Judge would not be afforded the opportunity to
clarify the reasons for which he objects to the grounds for a transfer unless he
mentions elements of fact or of law, which do not appear in the Court’s decision
and, in so doing, betrays the secrecy of the deliberations of the Court.
27.
If the Court
Commission matters
would be necessary
it could for instance
to its attention in
were to persevere in the practice of referring to the
over which it finds that it manifestly lacks jurisdiction, it
for it to set out clear criteria for such referrals. In so doing,
be guided by the nature or gravity of the violations brought
the application in question and thus transfer to the
Commission, those applications which “apparently reveal the existence of a
series of serious or massive violations of human and peoples’rights”, to use the
wording of Article 58 (1) of the African Charter.
28.
It must be recalled that the criterion of “serious or massive violations of
human rights” is one of those that the African Commission used to submit a case
to the Court under Article 5 of the Protocol (see Rules 84 (2) and 118 (3) of the
Rules of the Commission). Once the case is referred by the Court, it would then
lie with the Commission to consider the application and make the findings
arising therefrom in accordance with the above-stated provisions of its Rules.
29.
If the
Court
were
to
embark
on
this
path,
it would
be
following
a
reasoning that it had recently applied in its practice of transferring to the
Commission matters over which it found that it manifestly lacks jurisdiction. It
would even be attaching some significance to that practice by setting it aside for
exceptional circumstances. Hence, the Court would more or less be playing the
role of “an early warning mechanism” for the Commission, similar to the one
that may now play individuals and non-governmental organizations before the