000301
its jurisdiction; within these limits, its title to exercise jurisdiction rests in
its sovereignty". It follows that the issue is whether the intemal acts
regarding the presidential pardon are detachable or not from the office of
is an office whose legal regime belongs globally to the
President.
It
of
States. The law applicable to the exercise of
presidential pardon, except arbitrary controlled by international [aw, is
subject to the domestic law of States. It was up to the Applicants, not the
Court, to add the elements, the nature of which varies according to the
national legal systems. [t is indisputable that the control of international
law on this aspect is not worthless. But the Shukrani Masegenya Mango
and others case made no contribution thereto; they merely stated the
arbitrariness of the Respondent State's use of the presidential pardon.
intemal sovereignty
l0.Acts of the executive, attached to the power, do not fall within
the
jurisdiction of the judicial powers normally exercised by the local judge
because of the separation of powers. Louis Favoreuleproposed to submit
them to constitutional power. This seems to be an illusion, since
constitutional power remains dependent on the domestic law, which
remains under the control of the sovereign power. Supranational law
integrated into intemational law would exercise control over those acts to
which would be subjected, not the presidential pardon itself, but its
administration or exercise, under two conditions, however: that such acts
are detachable from the exercise ofthe reserved area ofthe State, and that
after validation of the conditions of admissibility, the acts are really
tainted with arbitrariness.
1
As a result, even though in the Shulrani and others case the Applicants
submitted that the Respondent State "automatically excludes prisoners
serving long term sentences from the prerogative of mercy thereby
violating Article 2 of the Charter and Article 13(1), (2), (3), (4) and (5) of
the Respondent State's Constitution",2o this Court refused to grant the
request, as the procedural and substantive elements are not strictly
1.
associated.
Ii\AN 4 NO
o\\ il$
a isl
Arusha, 27 September 2019
g
Judge Blaise Tchikaya
s
:-?t.
le Mauss
20
(D.), Louis Favoreu, a constitutional law missionary, fuFDC,2004, pp.46l to 463.
See AfCHPR, Judgement, Shulcrani Masegenya Mcutgo nnd others v. Tsnzania, op. cit., $ 7
5