688 AFRICAN COURT LAW REPORT VOLUME 1 (2006-2016) Independent Electoral Commission. I also have reservations on the legal consequences that the Court draws from this lack of impartiality and independence (the Ne eat judex ultra petita partium principle). 2. Before expressing my position on the last two points, I would like to point out that in examining its material jurisdiction, namely, the question as to whether or not the legal instruments allegedly violated, are “relevant human rights instruments”, the Court could have fleshed out its reasoning by highlighting the dialectical link between democracy, and respect for human rights and fundamental freedoms,11 and by making reference, for example, to the substantial observations presented by the African Institute for International Law and, to a lesser extent, by the African Union Commission.22 At the request of the Court, these two institutions submitted observations on the question as to “whether the African Charter on Democracy is a human rights instrument within the meaning of Article 3 of the Protocol” (paragraphs 28 and 29 of the judgment). However, the Court limited itself to reproducing some of the observations (see paragraphs 51-55) and “takes note of the observations” (paragraph 56), without taking the same on board in its reasoning (see paragraphs 57-65). 3. I would also like to point out that the inadmissibility objection based on the Applicant’s non-exhaustion of local remedies was filed very much out of time by the Respondent State. The said objection was raised in the Additional Observations filed by the Respondent State on 8 February 2016 (see paragraph 31 of the judgment),33 in response to the Additional Observations dated 4 November 2015 filed by the Applicant on 5 November 2015. In terms of Rule 52(2) of the Rules, 1 2 3 On this question, see for example, the Universal Declaration on Democracy adopted by the Inter- Parliamentary Council on 16 September 1997 at its 161st Session held in Cairo. Paragraph 6 thereof stipulates that: “Democracy is inseparable from the rights set forth in the international instruments recalled in the preamble” (notably the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights); paragraph 12 for its part provides that: “the key element in the exercise of democracy is the holding of free a nd fair elections at regular intervals enabling the people’s will to be expressed. These elections must be held on the basis of universal, equal and secret suffrage so that all voters can choose their representatives in conditions of equality, openness and transparency that stimulate political competition. To that end, civil and political rights are essential, and more particularly among them, the rights to vote and to be elected, the rights to freedom of expression and assembly, access to information and the right to organise political parties and carry out political activities” - text in Union Interparlementaire, La démocratie: Principes et réalisations, Genève, 1998, pp. III-VIII. See also Article 7 of the Inter-American Democratic Charter adopted by the General Assembly of the Organization of American States on 11 September 2011: “Democracy is indispensable for the effective exercise of fundamental freedoms and human rights in their universality, indivisibility and interdependence, embodied in the respective constitutions of states and in inter-American and international human rights instruments.” The Brief of the African Institute for International Law consists of 25 pages; while that of the Legal Counsel of the African Union Commission contains 3 pages. The Respondent State had been invited to file this pleading before 1 January 2016; on 8 February 2016, it actually filed two documents dated 3 and 5 February 2016 respectively, titled “Government’s Opinion on the Additional Submission of the APDH to the African Court”; it was in the document dated 5 February 2016 that it raised the objection to the admissibility of the Application on grounds of nonexhaustion of local remedies.