CYIL vol. 8 (2017)

TOMÁŠ BRUNER CYIL 8 ȍ2017Ȏ ratified the Protocol and accepted the jurisdiction of the Court for individuals as applicants by the declaration under article 34(6) of the Protocol. Wachira 34 added that a more proactive and cooperative relationship with the African Commission could heal the weak spot. The African Commission might indeed receive individual applications without a special declaration of their home countries. Consequently it is at the discretion of the African Commission to refer the cases to the ACHPR. Such a procedure was also originally intended by the drafters of the Protocol. The African Commission as a first instance was supposed to receive all individual complaints and the Court would represent a second, Commission-brokered instance for individuals . This would allow the African Commission to filter the complaints and prevent the Court from being overloaded. Similarly, the European Court on Human Rights and Inter-American Court on Human Rights originally did not solve individual cases; those cases had to be selected and referred to them by the European or Inter-American Commission on Human Rights. 35 Nevertheless, the relationship between the ACHPR and African Commission could be perceived as an unpleasant “competition” rather than the desirable “complementarity” prescribed in the article 2 of the Protocol. 36 The African Commission has been very reluctant to pass the cases on to the Court and has done so only three times. One case was struck out since the African Commission failed to comply with the Court’s further requests, one case is still pending and only one case has resulted in a meritorious decision of the Court. Therefore more a pro-active attitude of the African Commission has not been an option. Jalloh analysed further legal solutions to the inadmissibility of individual applications. He argued that article 34(6) of the Protocol stating that “states shall make the declaration” should be interpreted as an obligation or a duty rather than a possibility. He added that the judges could also use legal creativity and employ the doctrine of “competence-competence” to establish the admissibility of individual applications in the future. 37 Similarly, Adjovi emphasized that the doctrine of forum prorogatum , used by the International Court of Justice, could allow the states to establish ad hoc jurisdiction of the Court without any declaration. 38 However, as Faix clarified, states that had not allowed an individual to reach the Court through ratification of the Protocol and/or a respective declaration would be probably reluctant to accept the jurisdiction of the Court in this regard through creative legal interpretation or a forum prorogatum procedure. 39 34 WACHIRA, African Court on Human and Peoples’ Rights, p. 28. 35 VILJOEN, Frans, ‘The Implementation of Legal Obligations’, p. 169. ZIMMERMANN, Andreas, BÄUMLER, Jelena, Current Challenges facing the African Court on Human and Peoples‘ Rights (Konrad Adenauer Stiftung Reports) , 2010, 7, < http://www.kas.de/wf/doc/kas_20018-544-2-30.pdf?100630122117 > accessed 17 April 2017, p. 52-53. 36 WACHIRA, George M., African Court on Human and Peoples’ Rights , p. 15-17. ZIMMERMAN and BÄUMLER, ‘Current Challenges facing the African Court’, p. 49. 37 JALLOH, Charles C., ‘Michelot Yogogombaye v. Republic of Senegal’ The American Journal of International Law , 2010, no. 4, pp. 620-628. 38 ADJOVI, Roland, ‘Questionable Precedent: The First Ruling by the African Court on Human and Peoples’ Rights’ Jurist , 2009 < http://www.jurist.org/forum/2009/12/questionable-precedent-first-ruling-by.php > accessed 17 April 2017. 39 FAIX, Martin, ‘Vývoj a dosledky proliferacie kontrolných mechanizmov v oblasti ludských práv na africkom kontinente’ in ŠTURMA, Pavel (ed). Studie z mezinárodního práva č. 2 . Praha: PFUK, 2011, p. 34.

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