with respect to a supplementary treaty, especially where the latter establishes
a petition or complaints system.
78. The above is even more applicable in the case of the Maputo Protocol, which is
distinguishable from other similarly situated instruments such as the Court
Protocol and the African Charter on the Rights and Welfare of the Child. As
suggested by Viljoen, the Protocol is distinct in that it is primarily a substantive
rather than a procedural supplement to the Charter. Additionally, the
Children's Charter and the Court Protocol explicitly establish a mechanism for
overseeing their implementation and outline the functions of these
mechanisms. Also, considering that the Commission may appear before the
Court as an interested party, it is by operation of logic not appropriately
situated to interpret the Court Protocol which outlines the functions of the
Court.
79. Indeed, the Commission has already confirmed its competence to interpret the
Maputo Protocol notwithstanding the establishment of the Court. Specifically,
the Commission has adopted three General Comments interpreting the
substantive provisions of the Maputo Protocol. Namely, General Comments
No.1 on Article 14(1) (d) and (e) of the Maputo Protocol; General Comment
No.2 on Article 14.1 (A), (B), (C) and (F) and Article 14.2 (A) and (C) of the
Maputo Protocol; and Joint General Comment of the African Commission and
the African Committee of Experts on the Rights and Welfare of the Child
(ACREWC) on Ending Child . Marriage. These General Comments were
adopted on 6 November 2012; 28 November 2014 and 8 February 2018
respectively sometime after the establishment of the Court as interpreted
herein. In all three General Comments, the Commission claims that its
competence to adopt General Comments under the Maputo Protocol is derived
from Article 45 (1) (b) of the African Charter and that "as a complementary
legal instrument to the African Charter ... the [Maputo Protocol] by necessary
implications falls within the Commission's interpretative scope" .
80. This Commission is mindful of the thin distinction between advisory
jurisdiction and contentious jurisdiction. For example, in contrast to its
contentious jurisdiction, the Inter-American Court has the jurisdiction to
furnish advisory opinions with respect to treaties other than the American
Convention or other applicable Inter-American instruments33 . As such, an
argument could be made that the Commission may exercise other interpretive
jurisdictions under the Maputo Protocol, such as the adoption of general
comments, except for its contentious jurisdiction.