4444/445/452 as giving the Administrative Chamber the jurisdiction to annul
an arbitral award issued by the National Bar Council.
77. In addition to the lack of jurisdiction by the Congolese Supreme Court, the
Complainant alleges that this Court failed to rule on the admissibility of that
appeal that should not have been entered by an applicant such as his former
client, Pharmakina Company. The Complainant alleges in this case that the
law gives the Prosecutor General, the President of the National Bar
Association or any lawyer concerned the right to file this kind of appeal,
subject to the following conditions: “The decision whose annulment is being
sought must be tainted with abuse of power, be contrary to the law or have
been improperly made.”
78. Among other arguments submitted in support of his complaint to the
Commission, the Complainant cites the relevant Congolese doctrine which, as
far as Judgement No. RA 444/445/452 is concerned, has been violated by the
fact that “the Supreme Court sitting in administrative matters granted itself
jurisdiction to rule on a fee-related dispute by annulling a decision handed
down by the National Bar Council which was, however, ruling in the first and
last instance (...). This situation is a departure from precedent since the same
Court had previously decided that fee disputes are civil matters and should
be heard by the civil courts.”
79. Reinforced by the Congolese doctrine and jurisprudential practice, the
Complainant argues that this departure from precedent should have been
effected in accordance with Article 20 (2) of the Judicial Organization Order
No. 299/79 of 20 August 1979 relating to the Rules of Procedure of Courts,
Tribunals and Prosecutor’s Offices. This Order provides that the “joint
assembly and closed meeting of all judges of the Supreme Court and the
Prosecutor General’s Office [be held], especially in cases where it is necessary
to take a decision in principle, to make a departure from precedent and in
cases where a decision has failed to bring judicial peace.”
80. The Complainant submits that the initiative to depart from precedent is
therefore not within the jurisdiction of any Chamber of the Supreme Court,
much less within that of the body which issued Judgement No. RA
4444/445/452. Such an excess of jurisdiction, the Complainant maintains, is
in blatant violation of his right to have his case heard by a competent national
organ as provided for in Article 7 (1) (a) of the African Charter.
81. The Complainant also states, with regard to the provisions of Article 7 (1) (c)
of the African Charter, that the circumstances surrounding the delivery of
Judgment No. AR 444/445/452 are characterized by the occurrence of two
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