65. He submits that it emerges from the (new) Article 1 of the law of 2 July 2018
on the HJC that the latter is mostly composed of members of the executive,
including the President of the Republic who is the President, the Minister of
Justice, the Minister of Economy and Finance and the Minister of Public
Service.
66. He further contends that the President of the Republic holds sway in the
deliberations of the HJC and that the executive appoints fourteen (14) out
of its seventeen (17) members. He further submits that of the nine (9) judges
who are members of the HJC, only two are elected by the general assembly
of judges, the others being appointed by the executive. He concludes that
in view of this composition, which speaks to the control of the executive
power over the HJC, the Respondent State violated Article 26 of the Charter.
67. The Respondent State did not submit on this allegation.
***
68. The Court recalls that Article 26 of the Charter provides that “States [...] have
the duty to guarantee the independence of the Courts [...]”.
69. The Court notes that this provision does not only enshrine the independence
of courts, as judicial bodies, but also that of the judiciary as a whole, similar
to that of the executive power and the legislative power.22
70. In this regard, the Court endorses the Commission's position that “[…] the
doctrine of separation of powers requires the three (3) pillars of the state to
exercise powers independently. The executive branch must be seen to be
separate from the judiciary, and parliament. Likewise in order to guarantee
Sébastien Germain Marie Aikoué Ajavon v. Republic of Benin, ACtHPR, Application No. 062/2019,
Judgment of 4 December 2020, § 310.
22
22