DECISIONS OF THE AFRICAN COURT ON HUMAN AND PEOPLES’ RIGHTS: AN APPRAISAL OF SEPARATE OPINIONS OF JUDGE FATSAH OUGUERGOUZ
Keywords:
JJudge Fatsah Ouguergouz, Separate Opinions, African Court on Human and Peoples’ Rights.Abstract
While some legal systems do not allow separate opinions of judges to be published there is a substantial number of countries and legal systems whose practices evidence the contrary. Human rights courts present a first-rate example of legal fields which allow separate opinions to be published. Taking into consideration of their nature and purpose, separate opinions are perceived as inferior to majority decisions since among other things they do not change or influence any modification to the majority decision however beautiful, persuasive and colourful they may be presented. It is however undisputed that separate opinions particularly in the human rights field for the purpose of this paper, have proved to be ‘unsung heroes’ as far as their contribution to the development of human rights principles and interpretations is concerned. This work aims at appraising the contribution that separate opinions by Judge Fatsah Ouguergouz have made in the development of human rights jurisprudence in the African Court on Human and Peoples’ Rights. Such appraisal will be made from selected separate opinions that Judge Fatsah Ouguergouz gave in various decisions of the African Court on Human and Peoples Rights. The work reveals that, separate opinions though do not form part of the Court’s decision, they contribute in inter alia the clarification of the judgment and lay a basis for future legal change. The author opines that, despite the existence of two schools of thoughts debating on whether separate opinions should be published or not, the author recommends for their publication.
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References
i C Hughes, The Supreme Court of the United States. New York: Columbia University Press. 1928. Pg. 68. As
cited in Claire L’Heureux-Dube. “The Dissenting Opinion: Voice of the Future”. Osgoode Hall Law Journal. Vol.
38. Issue 3. 2000. Pg. 496.
ii Edward M Gaffney. “The Importance of Dissent and the Imperative of Judicial Civility”. Valparaiso University
Law Review. Vol. 28. Issue 2. 1994. Pg. 583.
iii Ibid.
iv Ibid.
v See “Profiles for Former Judges” available at http://en.african-court.org/index.php/judges/42-former-judges
accessed on 06th June, 2019 at 20:20.
vi Ibid.
vii Ibid.
viii Julia Laffranque. “Dissenting Opinion and Judicial Independence”. Juridica International. Vol. 8. 2003. pg.
163.
ix Ibid.
x R P Anand. “The Role of Individual and Dissenting Opinions in International Adjudication”. International &
Comprative Law Quartery. Vol. 14. Issue 3. 1965. Pgs. 788-808. Published online on 17th January 2008 available
accessed on 24th May, 2019 at 12:35.
xi Rosa Raffaelli. “Dissenting Opinions in the Supreme Courts of the Member States”. Policy Department:
Citizens’ Rights and Constitutional Affairs. 2012. Pg. 8.
xii Ibid.
xiii See Katalin Kelemen. “Dissenting Opinions in Constitutional Courts”. Germany Law Journal. Vol. 14. Issue
8. Pgs. 1345-1371.
xiv Thomas B Bennet, et al. “Divide and Concur: Separate Opinions and Legal Change”. Cornell Law Review,
NYU School of Law, Public Law Research Paper No. 17-11.
xv Rosa Raffaelli, (n 11) pg. 17-20.
xvi Thomas B Bennet, et al (n 14).
xvii Peter J Rees and Patrick Rohn. “Dissenting Opinions: Can they Fulfill a Beneficial Role?”. Arbitration
International. Vol. 25. Issue 3. 2009. Pgs. 329-346.
xviii Rosa Raffaelli, (n 11) Pg. 12.
xix See W J Brennan. “In Defence of Dissent”. Hastings Law Journal. Vol. 37. 1986. Pgs. 427-438.
xx Rosa Raffaelli, (n 11) Pg. 13.
xxi Edward M Gaffney, (n 2) Pg. 590.
xxii 1 Dallas 180 (Pa. Ct. Errors & App. 1786).
xxiii C. L’Heureux-Dube. “The Dissenting Opinion: Voice of the Future?”. Oosgode Hall Law Journal, 2000,
495-516.
xxiv D. Hart. “Why We Allow Dissents by Our Judges”. Available at
http://ukhumanrightsblog.com/2012/10/14/why-we-allow-dissent-by-our-judges/. (accessed on 03rd June, 2019
at 23:46).
xxv J. Azizi. “Unveiling the EU Courts’ Internal Decision-Making Process: A Case for Dissenting Opinions?”.
ERA Forum. 2011. Pgs. 49-68.
xxvi Rosa Raffaeli (n 11) Pg. 11.
xxvii Ibid.
xxviii C Walter. “La Pratique des Opinions Dissidentes en Allemagne”. Nouveaux Cahiers du Conseil
Constitutionnel. N. 8/2000. Available at http://www.conseil-constitutionnel.fr/conseilconstitutionnel/francais/nouveaux-cahiers-du-conseil/cahier-n-8/la-pratique-des-opinions-dissidentes-enallemagne.52541.html. Accessed on 04th June, 2019 at 12: 08.
xxix Rosa Raffaeli (n 11) Pg. 10.
xxx Ibid.
xxxi Ibid, Pg. 11-12.
xxxii Para 6 of the Judgment.
xxxiii Para 5 of the Judgment.
xxxiv Para 7 of the Judgment.
xxxv Paras 8 and 9 of the Judgment.
xxxvi Paras 8 and 9 of the Judgment.
xxxvii Para 5 of the Opinion.
xxxviii Application No. 007/2012.
xxxix Para 9 of the Opinion.
xl Para 6 of the Opinion.
xli Para 12 of the Opinion.
xlii Para 14 of the Opinion.
xliii Para 15 of the Opinion.
xliv Para 4 and 5 of the Judgment.
xlv Para 11 of the Judgment.
xlvi Para 1 of the Opinion.
xlvii Para 2 of the Opinion.
xlviii Para 3 of the Opinion.
xlix Para 4 of the Opinion.
l Para 4 of the Opinion.
li Para 5 of the Opinion.
lii Para 6 of the Opinion.
liii Para 40 of the Judgment.
liv Para 12 of the Opinion.
lv See Para 24 of the Opinion.
lvi Para 25 of the Opinion.
lvii Para 25 of the Opinion.
lviii Para 26 of the Opinion.
lix Para 26 of the Opinion.
lx Para 28 of the Opinion.
lxi Para 28 of the Opinion.
lxii Para 32 of the Opinion.
lxiii Paras 111, 114 and 115 of the Judgment.
lxv Para 2 of the Opinion.
lxvi Reading Articles 3 (1), 5 and 6 of the Protocol establishing the Court and Rule 39 of the Court Rules, the
question of whether the Court is duty bound to proprio motu determine whether it has jurisdiction is not clearly
provided.
lxvii Para 22 of the Opinion.
lxviii Para 23 of the Opinion.
lxix Para 22 of the Opinion.
lxx Para 141 of the Judgment.
lxxi Para 141 of the Judgment.
lxxii Para 142 of the Judgment.
lxxiii Para 155 of the Judgment.
lxxiv Para 113 of the Judgment.
lxxv Para 114 of the Judgment.
lxxvi Para 1 of the Opinion.
lxxvii Para 2 of the Opinion.
lxxviii Para 20 of the Opinion.
lxxix Para 20 of the Opinion.
lxxx Para 23 of the Opinion.
lxxxi Para 24 of the Opinion.
lxxxii Para 25 of the Opinion.
lxxxiii Para 25 of the Opinion.
lxxxiv Para 28 of the Opinion.
lxxxv Para 29 of the Opinion.
lxxxvi See Paras 33-51 of the Opinion.
lxxxvii Para 54 of the Opinion.
lxxxviii Para 78 of the Opinion.
lxxxix Silvia D’ Ascoli and Kathrin M. Scherr. “The Rule of Prior Exhaustion of Local Remedies in the International
Law Doctrine and its Aplication in the Specific Context of Human Rights Protection”. EUI Working Papers.
European University Institute. LAW 2007/02. Pg. 4.
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