Download this publication - PULP

Essien v The Gambia and Another
(2007) AHRLR 131 (ECOWAS 2007)
139
part payment which is a matter for the main case. Article 87(5) of the
Rules of Procedure provides that:
The Court shall, after hearing the parties decide on the application or
reserve its decision for the final judgment. If the Court refuses the
application or reserves its decision, the President shall prescribe new
time limits far the further steps in the proceedings.
26. At this juncture, it is necessary to mention a salient point
raised by the defendants in respect of the competence of the Court
for the alleged violation of fundamental human rights of the plaintiff.
One of the innovations brought about by the Supplementary Protocol
of January 2005 on the Court and the Community is the extension of
its powers to cover human rights violations, as contained in article
10(d). The defendants maintain that the rights claimed by the
plaintiff are not positively conferred by statute or contract but the
plaintiff countered by stating a contrary arguments regarding same.
27. The important question herein is whether the rights of the
plaintiff as discernible from the relationship of the parties are human
rights as opposed to contractual rights and so on. Without delving into
the issues in depth, the two parties concur, in invoking the African
Charter on Human and Peoples’ Rights and the Universal Declaration
of Human Rights 1948. Article 10(d) of the Supplementary Protocol of
the Court is a special provision and did relate to the parties accessing
this Court on human rights contravention while those provisions of the
African Charter on Human and Peoples’ Rights relate to those cases
under the purview of the Commission, particularly, the issue of local
remedies as mentioned in article 50 of the said Charter has no bearing
with the cases under the premise of article 10(d) of the Supplementary
Protocol, on the grounds that the cases under article 10(d)
made it quiet clear that the bar to bringing action to this Court must
be those cases of lis pendens in another international court for
adjudication.
28. Consequently, the objection herein regarding the non
exhaustion of local remedies has no bearing with the requirement in
bringing this action before this Court. The objection therefore is
untenable. The action in this case having been made under human
rights violation falls under the ambit of human rights infringement
and amount to a justiciable claim. The material put before the Court
is in the realm of the main claim. To raise such an argument herein
would entail the full deliberation of the case prematurely. In the
circumstance, the objection on this ground also fails. For the
foregoing reasons as amplified, the preliminary objection fails in its
entirety.
Decision
(1) Whereas the defendants have failed to justify the facts in
support of the preliminary objection; the Court hereby decides that
the preliminary objection is dismissed on all the grounds argued
ECOWAS Community Court of Justice