Decision of the Commission on the Respondent State’s challenge of its existence and competence 72. Considering that the Respondent State contests the existence of the African Commission and its jurisdiction to hear the matter complained of, the Commission will deal with those two points before dealing with the admissibility of the communication. 73. Regarding the existence of the Commission, the Respondent State submits that the Commission was established within the OAU, and that the OAU ceased to exist in July 2001 and no provision was made for the continuance of the work of the Commission in the Constitutive Act of the African Union that took over from the OAU. 74. According to the Respondent State, Article 5 of the Constitutive Act, which lists the AU Organs, does not mention the African Commission, and the AU did not make use of the capacity vested in it under Article 9(1)(d) of the Constitutive Act to establish any other organ to bring the Commission back to existence. The Respondent State therefore concludes that the Commission has ceased to exist along with the OAU. 75. In terms of Article 30 of the African Charter, “An African Commission on Human and Peoples' Rights, … shall be established within the Organisation of African Unity to promote human and peoples' rights and ensure their protection in Africa”. It is the Commission’s view that having been established by the African Charter, the termination of a treaty other than the Charter cannot affect its existence. 76. The Commission would like to emphasise that although it was established by the African Charter and not a direct emanation of the OAU Charter, it was operating within the framework of the OAU, the latter being the main political organisation on the continent. As an organisation working within the 1 framework of the OAU, the Commission relied on the OAU for its funding and its staffing, and for the 2 execution of its decisions against Members States found to be in violation of the Charter . With the coming into force of the Constitutive Act, all the “assets and liabilities” of the OAU “… and all matters 3 relating thereto’’ including relevant institutions established within the OAU, were devolved to the AU . That is why, the Heads of State and Government of the AU, at their first Ordinary Session held in th th Durban, South Africa, from 8 to 10 July 2002, accepted to take over the obligations the OAU used to bear vis-à-vis the African Commission. In its decision on the Interim Period, the Assembly of the African Union decided that “the African Commission on Human and Peoples’ Rights and the African Committee of Experts on Rights and Welfare of the Child shall henceforth operate within the 4 framework of the African Union” . 77. As a matter of fact, the AU assumed towards the Commission the same obligations as previously borne by the OAU. The AU appoints the 11 Members of the Commission, provides staff to the Secretariat, funds the day-to-day work of the Commission, and adopts the reports submitted by the Commission. Moreover, Member States of the AU (which are also State Parties to the African Charter), including the Respondent State, continue to cooperate with the African Commission, by submitting their reports under Article 62 of the Charter, by hosting sessions and missions of the Commission, and by actively participating in the communication procedures when complaints are brought against them before the Commission. 78. The Commission takes note of the fact that, although it challenges the existence of the Commission as a monitoring body, the Respondent State does not contest the existence of the Charter itself. The Commission observes that, unlike some other international human rights systems where the substantive rights and their monitoring bodies are dealt within two complementary but different instruments, in the African system, the same instrument, the African Charter, makes 5 provisions for substantive rights and organises their monitoring mechanism . Under the Charter, therefore, States Parties are not given the option of recognising the substantive rights without accepting the jurisdiction of the African Commission, which was established to promote and protect those rights. 79. The Commission concludes that the termination of the OAU Charter and subsequent dissolution of the OAU does not affect its existence. The Commission is still in existence and performs its activities within the framework of the AU.