The Admissibility of Subregional Courts’ Decisions before the African Commission. ..
269
no ‘obligation to decide according to legal principles’.188 The African
Commission “would not rely on the process or mechanism of a ‘discretionary,
extra-ordinary ... non-judicial nature’ to preclude the admissibility of a
communication under Article 56(7) of the African Charter”.189
From the few decisions of the African Commission, it can be gathered that
the Commission has depended on the nature of a tribunal or an organ to
ascertain whether it falls under Article 56(7) of the African Charter. If a tribunal
is of a judicial nature, or if it has an obligation to decide according to legal
principles, then it falls under Article 56(7). Interights v Ethiopia and Eritrea
illustrates the point.190 In this case, the complainant claimed that expulsion or
deportation of Eritreans from Ethiopia and that of Ethiopians from Eritrea
during the Ethio-Eritrean war of 1998 violated Articles 1, 2, 3, 4, 5, 6, 7(1),
12(1), 12 (2), 12(4), 12(5) 14, 15, 16 and 18(1) of the African Charter.191 In
their submissions on admissibility, both Eritrea and Ethiopia argued that the
communication was inadmissible under Article 56(7) of the African Charter.192
The African Commission considered the nature of the Ethiopia-Eritrea Claims
Commission that was established by the 2000 Algiers Peace Agreement
concluded between Ethiopia and Eritrea.193
The African Commission extended the test of ‘obligation to decide according
to legal principles’ to identify organs that fall under Article 56(7) of the African
Charter.194 The African Commission held that the Ethiopia-Eritrea Claims
Commission falls under those bodies envisaged under Article 56(7) as the
Claims Commission ‘is bound to apply rules of international law and cannot
make decisions ex aequo et bono.’195
As the African Commission accepts the Ethiopia-Eritrea Claims Commission
as a body envisaged under Article 56(7), it should also view subregional courts
in the same way for stronger reasons. subregional courts are more judicial in
nature than the Ethiopia-Eritrea Claims Commission because the former are
courts while the latter is an arbitral tribunal.196 Consisting of five arbitrators, the
188
Constitutional Rights Project (in respect of Akamu and Others) v Nigeria (2000)
AHRLR 180 (ACHPR 1995), para 8.
189 Communication 233/99, Interights (on behalf of Pan African Movement and
Citizens for Peace in Eritrea) v Ethiopia and Communication 234/99, Interights (on
behalf of Pan African Movement and Inter Africa Group) v Eritrea, Sixteenth
Activity Report 2002-2003, Annex VII.
190 Ibid, para 56.
191 Ibid, para 1-9.
192 Ibid, para 28-29.
193 Algiers Peace Agreement, supra note 148, Art 5.
194 Interights v. Ethiopia and Eritrea, supra note 189, para 56.
6
Ibid.
See Art 5 of the Algiers Agreement, supra note 148.