APDH v Côte d’Ivoire (2016) 1 AfCLR 668
689
however, that objection should have been raised ‘at the latest before
the date fixed by the Court for the filing of the first set of pleadings to be
submitted by the party who intends to raise such objections’, that is, at
the latest during the month of December 2014 (see paragraph 22 of the
judgment; and yet, this first pleading to be submitted by the Respondent
State, i.e. its Brief in Response filed on 19 May 2015 (without any
Application for extension of time) contained no preliminary objection.
Although that brief was filed out of time, the Court decided to accept the
same “in the interest of justice” (see paragraphs 24, 25 and 26 of the
judgment). The plea of inadmissibility on grounds of non-exhaustion of
local remedies contained in the afore-mentioned Additional
Observations was therefore raised outside the time limit prescribed by
Rule 52(2) and, indeed, subsequent to the closure of the written
procedure. The Court also decided to accept Respondent State’s
additional observations still “in the interest of justice” (see paragraph 31
of the judgment).
4. In my opinion, the Court should have explained the term “interest of
justice” which it invokes in this case, more so because the preliminary
objection in question was raised after the closure of the written
procedure on 8 January 2016 (see paragraph 30) and because the
Applicant formally opposed the filing44 of the said observations. Proper
administration of justice requires that the time limits prescribed by the
Court must be scrupulously respected by the parties, especially where
such time limits concern a procedural aspect as crucial as the Court’s
jurisdiction or an Application’s admissibility. This does not mean that
the Court cannot show flexibility in certain circumstances; it must
however ensure that cases are properly managed and that it keeps
control of the procedure. In the instant case, the Court could have
indicated that exhaustion of local remedies is a cardinal condition for
admissibility of an Application and that it therefore behoves the Court to
examine this condition even in the absence of an objection by the
Respondent State in this regard (see Rule 39 of the Rules of Court).55
In view of its fundamental nature, this condition of admissibility could
indeed be likened to a condition in respect of public order.
5. I would now address the two key questions which led me to write this
separate opinion.
I.
The Independent Electoral Commission’s lack of
independence and impartiality
6. Article 17(1) of the African Charter on Democracy, Elections and
Governance, violation of which is alleged, provides that; “State Parties
shall establish and strengthen independent and impartial national
electoral bodies responsible for the management of elections”. Since
this instrument does not contain a definition of the concepts of
4
5
See his Pleadings Paper dated 3 March 2016, pp. 6-7 and the Record of
Proceedings of the Public Hearing of Thursday 3 March 2016, pp 5-6 (Mr Guizot
Takoré’s pleadings).
Paragraph 1 of this Article provides that “the Court shall conduct a preliminary
examination of its jurisdiction and the admissibility of the Application…”