Request for Advisory Opinion 002/2012 - PALU & SALC

AFRICAN UNION UNION AFRICAINE UNIAO AFRICANA ~J~' .lb• .; ·~' AFRICAN COURT ON HUMAN AND PEOPLES' RIGHTS COUR AFRICAINE DES DROITS DE L'HOMME ET DES PEUPLES REQUEST FOR ADVISORY OPINION No. 002/2012 BY PAN AFRICAN LAWYERS' UNION AND SOUTHERN AFRICAN LITIGATION CENTER ORDER The Court composed of: Sophia A.B. AKUFFO, President; Fatsah OUGUERGOUZ, Vice-president; Gerard NIYUNGEKO; Bernard M. NGOEPE, Augustine S.L. RAMADHANI, Duncan TAMBALA, Elsie N THOMPSON, Sylvain ORE, El Hadj1 GUISSE, Ben KIOKO, and Kimelabalou ABA- Judges; and Robert ENO- Registrar, In the Matter of a REQUEST FOR ADVISORY OPINION PAN AFRICAN LAWYERS' UNION AND SOUTHERN AFRICAN LITIGATION CENTER After deliberations, makes the following Order 1 By letter dated 23 November, 2012 and rece1ved at the Regrstry of the Court on the same day, the Pan African Lawyers' Union and the Southern African Litrgatron Center (hereinafter referred to as 'the Authors'), requested the Court for an advisory opin1on 2 In their request, the Authors requested the Court to give 1ts opinion on. "(a) whether the dec1s1on of the Southern African Development Community (SADC) Summit of Heads of State to suspend the Tribunal and termmate the term of off1ce of duly elected Judges is consistent with the African Charter on Human and Peoples' Rights (the Charter), the Protocol on the relat1ons between the AU and RECs, the Treaty Establishing the African Economic Community, the SADC Treaty the SADC Protocol and general principles on the rule of law; (b) whether the decision violates rnst1tut1onal independence of the SADC Tnbunal and the personal independence of its Judges as provided for under Article 26 of the Afncan Charter, the UN Pnnc1ples on the Independence of the Jud1c1ary and 2 Value 1 of the Bangalore Pnncrples of Judicial Conduct 2002; (c) whether the decision violates the rrght to access to justice and effectrve remedies for SADC c1trzens as guaranteed under Articles 3 and 7 of the African Charter, Articles 18 and 19 of the Tribunal Protocol and UN Basrc Princrples and Guidelines on the Rrght to a Remedy and Reparation for Victims of Gross Vrolatrons of lnternatronal Human Rights Law and Senous Vrolatrons of International Humanrtanan Law; and (d) whether the decision-making process undertaken in the review of the SADC Tnbunal junsdrctron are in compliance wrth Article 23 of the SADC Treaty" 3. By letter dated 23 November 2012, the Regrstry acknowledged receipt of the request 4 By email sent on 5 December, 2012, the Registry inqurred from the Afncan Commrssion on Human and Peoples' Rights (herernafter referred to as the Commissron) whether the subject matter of the Request was related to any matter pendrng before the Commrss1on 5. By letter dated 5 December, 2012. the Commissron confrrmed that there was a matter pending before it "dealing with the suspension of the SADC Tribunal" 6. By letter dated 10 January, 2013, the Registry transmitted the letter of the Commrssion to the Authors and drew their atlentron to Rule 68(3) of the Rules of Court whrch provrdes that 'the subject matter of the request for advrsory oprnron shall not relate to an application pendrng before the Commrssion'. 7 As at the date of thrs Order the Authors have not responded or otherwrse reacted to the Registry's letter of 10 January, 2013, transmrtting the letter of the Commrssron to them 3 8 Now Therefore (i) The Court finds that the request by the Pan African Lawyers' Union and the Southern African L1tigat1on Center relates to a matter pend1ng before the Comm1sston (11) The Court also notes that the sa1d Authors have not responded to the Court's letter transmitting the letter of the Commission on the matter (11i) The Court notes that under Article 4( 1) of the Protocol and Rule 68(3) of the Rules of Court. the subject matter of a request for advisory opm1on shall not relate to a matter be1ng examined by the Commiss1on THE COURT, unanimously:- Orders that the Request for Advtsory Opinion. made by the Authors, be and the same 1s hereby declined as it relates to a matter pending before the African Commission on Human and Peoples' R1ghts Done at Arusha, this fifteenth day of March in the year Two Thousand and Thirteen, 1n English and French. the En authoritative Signed: Registrar ~ Robert ENO, 4