entry into force, with regard to Malawi, of the Protocol establishing the Court
on 9 October 2008 (paragraph 30(2) of the judgment),
6. The Court overrules this objection on the grounds contained in the following
passage:
“The Court notes that the Charter came into operation on 21 October,
1986 and the
Respondent ratified the Charter in 1989, It is the view of the Court, therefore, that at
the time of the alleged violation of the Applicant's rights in
already binding on
the Respondent;
the latter was under
Applicant's rights alleged to have been violated.
1999, the Charter was
the duty
to protect the
Furthermore, the Court notes that the
Applicant's case is that the alleged violation of his rights under Articles 7 and
continuing.
For
the
above
reasons,
the
Respondent cannot succeed” (paragraph
32),
7. The first reason advanced by
preliminary
objection
raised
15 is
by
the
the Court (the prior ratification of the Charter)
is incomprehensible and confusing, within the context of the specific objection
raised
by the Respondent.
In fact, whereas
the objection
by the Respondent
State is based, as far as it was concerned, on the date of entry into force of the
Protocol to establish the Court, the Court’s response is to invoke the date of
entry into force of the Charter which was not an issue for the Respondent State.
And one does not quite see what the Court draws as conclusion from the date
of entry into force of the Charter, regarding the Respondent State’s argument of
non-retroactivity of the Protocol?.
8. In our opinion, the Court ought to have been unequivocal on this point and
should have indicated that though the Respondent State was already bound by
the Charter, the Court lacks temporal jurisdiction with respect to it, as long as
the Protocol conferring jurisdiction on it is yet to become operational, unless of
course the argument of the alleged continuing violation is invoked.
3 The
same
problem
arose
in the
matter of the
Tanganyika
Law
Society &al.
v. The
United
Republic of Tanzania, the 14 June 2013 judgment, See the separate opinion of Judge Gérard
Niytungeko, paragraphs 8 to 17,