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Periodical article Periodical article Leiden University catalogue Leiden University catalogue WorldCat catalogue WorldCat
Title:Judgment in the first case before the African Court of Human and Peoples' Rights: a missed opportunity or a mockery of international law in Africa?
Author:Bhoke, ChachaISNI
Periodical:Journal of African and international law (ISSN 1821-620X)
Geographic term:Africa
Subjects:African Court on Human and Peoples' Rights
legal procedure
offences against human rights
international criminal law
Abstract:On 15 December 2009 the African Court on Human and Peoples' Rights, sitting in Arusha, delivered its first ever judgment, in the matter of Michelot Yogogombaye v The Republic of Senegal. In commenting on this first ever case to be filed before the Court, the author first discusses the arguments raised by the applicant against Senegal in respect of the ongoing legal proceedings instituted in Senegal against Hissene Habre, former President of Chad, charging him with crimes against humanity. He then discusses Senegal's preliminary objections to the application touching on the lack of jurisdiction by the Court, before presenting the conclusion reached by the Court and the Separate Opinion of Judge Fatsah Ouguergouz. The Court's judgment dealt with jurisdictional challenges, in particular the interpretation of articles 5(3) and 34(6) of the Protocol on its establishment, thereby producing its own jurisprudence on the locus standi to bring cases before the Court as well as the Court's personal jurisdiction. The fact that it did not go into the merits of the case was a missed opportunity to contribute to the clarification of some of the difficult questions relevant to international law for Africa concerning concepts such as universal jurisdiction, immunity of Heads of State, retroactive application of criminal law to international crimes, the legality of the Court to suspend the African Union decision requiring a State to act on the decision of the AU and prosecute former Heads of State for international crimes, and the issue of 'ubuntu' or 'African humanity' as an African solution to the problem of crimes against humanity committed by Heads of State in office. And while the applicant deserves credit for bringing the first case before the Court since its establishment, most of the arguments he raised were largely a 'mockery' of international law principles. Notes, ref. [ASC Leiden abstract]