3. lt should be noted that it is the first time in the practice
of the Court that it is dealing
with a matter by first considering the admissibility of the
application . In all its earlier
decisions since 2009, it had always endeavoured to
ensure in limine that it had
jurisdiction to hear the matter, whether or not a party raise
d an objection in that regard 1.
In the circumstances, one would have expected that, in the
judgment on this matter, the
Court would have explained, be it in passing, the reasons
for this change in approach.
Failure to do so would leave the impression of inconsisten
cy and lack of coherence.
Unfortunately, nothing is explained in this regard in
the judgment. One of the
consequences will be that with the unexplained changes
or fluctuation in the Court's
practice, parties will be in the dark as to which legal issue
to begin with henceforth,
when they have to file an application or make submission
s before the Court. This may
create unnecessary confusion.
4. In any case, this change in approach poses a problem
of principle: is it possible for
the Court to begin with the consideration of the admissibil
ity of an application before
ensuring that it does have the jurisdiction to deal with the
application? In our opinion,
the answer to this question is 'no' and for a certain number
of reasons.
Firstly, one should not lose sight of the fact that the jurisd
iction of the Court is neither
all-embracing nor automatic in nature; it is a jurisdiction that
has been attributed, subject
to conditions, and therefore limited by definition. A judge
vested with such jurisdiction
cannot start considering any aspect of an application witho
ut ascertaining whether or
not he or she does have jurisdiction .
Secondly, it should be realised that whereas jurisdiction
relates to the powers of the
judge, the admissibility of the application is one limb of
the application same as the
merits. In such circumstances, can a judge embark on the
consideration of an aspect of
an application before determining whether he or she is
in a position to consider the
entire application? Is there any sense in dealing with what
he or she is requested to do
before finding out whether he or she can or cannot do
it? Logic and common sense
would require that the Court should first and foremost
ensure that it has jurisdiction
before considering the admissibility of the application.
5. This position is further buttressed, if need be, by the mann
er in which Rule 39 of the
Rules of Court is crafted. That Rule prescribes that the
Court should deal with these
issues in this order: 'Preliminary examination of the comp
etence of the Court and of
admissibility of applications' » (italics added). This provision
clearly shows what was the
initial intent of the Court on the order of consideration of
issues relating to jurisdiction
and admissibility.
7
1
@_
Decisions of the Court can be found on the Court's websit
e : www.african-court.org
2
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