AFRICAN UNION
UNION AFRICAINE
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. 003/2011)
JOINT DISSENTING OPINION OF JUDGES
GERARD
NIYUNGEKO
AND EL
HADJI GUISSE
1. In its judgment
of 21 June
Republic of Malawi,
2013 in the matter of Urban Mkandawire
v. the
the Court concluded proprio motu that the application was
not admissible due to failure to exhaust local remedies. We beg to disagree with
the conclusion
remedies;
reached
by
the Court
with
regard
to the exhaustion
the Court’s reasoning and position regarding its jurisdiction
of local
ratione
temporis; as well as the structure of the judgment with regard to its jurisdiction
and the admissibility of the application.
LThe
structure
of the judgment
with
regard
to the
Court’s jurisdiction
and the admissibility of the application
2. In its judgment, the Court successively dealt with the preliminary objection
on its jurisdiction
ratione temporis raised by the Respondent
State (paragraph
32 ); the preliminary objection on the inadmissibility of the application drawn
from
the
fact
that
the
application
had
been
submitted
to
the
African