The Admissibility of Subregional Courts’ Decisions before the African Commission. ..
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decisions of subregional courts by amending their constitutions or taking other
decisions. The assumption does not thus justify the admissibility of subregional
courts’ decisions before the African Commission or African Court.
3.2. Finality of Subregional Courts’ Decisions
International146 courts or tribunals are usually empowered to render final and
binding decisions no matter how different their subjects of jurisdiction are. A
perusal of instruments establishing international courts and tribunals reveals that
the finality of their decisions does not depend on the number of states party to
the constituting instrument or on the permanent or temporary nature of the court
or tribunal. For example, the Statute of the International Court of Justice (ICJ),
to which almost all states are party, provides that the judgement of the Court is
‘final and without appeal.’147 The 2000 Algiers Peace Agreement which was
concluded between Ethiopia and Eritrea at the end of Ethio-Eritrean war can be
another example.148 Article 5(17) of this Agreement establishes a neutral Claims
Commission, a temporary arbitral tribunal, and provides that the decision of the
Commission is ‘final and binding.’
The Treaties establishing subregional courts in Africa are no exception. They
provide that the decisions of these courts are final and binding.149 These treaties
foreclose any appeal from subregional courts to regional bodies like the African
Commission and the African Court, or any other global courts and tribunals
such as the ICJ. A concern raised in this regard is that ‘it may be desirable to
give room for reference of cases from’ subregional courts as these courts are not
‘specifically established for the purpose of human rights protection.’150
146
The word ‘international’ is used here to mean ‘connected with or involving more
than one [state].’ See A S Hornby Oxford Advanced Learner’s Dictionary of Current
English (2000) 680. It refers to all supra national institutions whether they are
subregional, regional or global.
147 Art 60 of the Statute of International Court of Justice.
148 Peace Agreement between the Government of the Federal Democratic Republic of
Ethiopia and the Government of the State of Eritrea signed in Algiers, Algeria on 12
December 2000 available at <http://server.nijmedia.nl/pcacpa.org/showfile.asp?fil_id=1030> (accessed on 13 November 2011).
149 Art 76(2) of the Revised ECOWAS Treaty provides that the decision of the
ECOWAS Community Court ‘shall be final and shall not be subject to appeal; Art
16(5) of SADC Treaty provides that ‘the decisions of the Tribunal shall be final and
binding.’ Art 35(1) of the Treaty Establishing the East African Community
stipulates that the judgment of the Community Court is ‘final, binding and
conclusive and not open to appeal.’ Art 31(1) the COMESA Treaty provides that the
judgment of the COMESA Court is ‘final and conclusive and not open to appeal. ’
150 Solomon T Ebobrah (2009), ‘The admissibility of cases before the African Court on
Human and Peoples’ Rights: who should do what?’ Malawi Law Journal 87, Vol. 3, p. 98.