Atemnkeng v African Union (Application 14 of 2011) [2012] AfCHPR 53 (7 December 2012)





Application 014/2011



The Court composed of : Sophia A.B AKUFFO. President , Fatsah OUGUERGOUZ, Vice-President; Bernard M NGOEPE. Gerard NIYUNGEKO, Augustmo S.l. RAMADHANI , Duncan TAMBALA , Elsie N THOMPSON, Sylvain ORE, and El HadJi GUISSE, Judges ; and Robert ENO- Registrar.

In the Matter of

represented by Chief Charles TAKU


The Afncan Union
represented by the Legal Counsel of the African Union

After deliberations,

renders the following Ruling:

1 The Applicant, Mr Atabong Denis Atemnkeng, c1t1zen of Cameroon and staff of the African Union Commission , (hereinafter referred to as "the Applicant"), by application dated 18 October, 2011, received at the Registry of the Court on 1 December, 2012, seized the Court against the African Union, (hereinafter referred to as "the Respondent"), alleging that Article 34(6) of the Protocol to the African Charter on Human and Peoples Rights on the Establishment of an African Court on Human and Peoples' Rights, (hereinafter referred to as "the Protocol"), is contrary to the African Union Constitutive Act and the African Charter on Human and Peoples' Rights and as such an obstruction to Justice and the rule of law. promotes impunity as it excludes sections of Afncan citizenry from access to justice, by placing human rights abusers above the law. and as such should be declared null and void.

2. Justice Ben Kioko. who previously dealt with the matter as Counsel for the Respondent, recused himself.

3 By letter dated 5 January, 2012, the Registrar acknowledged receipt of the application

4. Pursuant to Rule 35(1) of the Rules of Court, the Registrar communicated a copy of the application to the President and other Members of the Court.

5 By letter dated 15 February, 2012, and pursuant to Rules 35(4)(a) and 37 of the Rules of Court, the Registry communicated the application to the Respondent, requesting it to tndicate the name(s) of its representatives within 30 days and to reply to the application within 60 days

6 Pursuant to Rule 35(3) of the Rules of Court and by letter dated 15 February, 2012. addressed to the Chairperson of the Afncan Union Commission, the Registry Informed the Executive Council of the African Union of the submission of the application as well as the States Parties to the Protocol.

7. By email dated 1 April, 2012, the Applicant submitted 'a supplement to the original case file'

8 By letter dated 27 Apnl 2012, received at the Registry on 20 May, 2012, the Respondent filed 1ts notice of legal representative and its response to the application.

9. By letter dated 21 May, 2012, the Regtstry communicated the Respondent's response to the original application to the Applicant.

10. By letter dated 22 May, 2012, the Registry cornmuntcated to the Respondent the 'supplement to the orig1nal case file' submttted by the Applicant

11 . On 11 June, 2012, the Registry received the reply of the Applicant to the Respondent's response, and on the same date communicated the reply to the Respondent

12 By letter dated 25 June, 2012, the Registry Informed the part1es that pleadings were closed and that they could request for leave to present additional submissions, if necessary.

13 By email dated 27 June, 2012, the Applicant submitted an application for leave to present additional submissions.

14 Without being granted leave by the Court. on 27 June, 2012. the Applicant presented additional submissions . of whtch the Registrar acknowledged receipt on 2 July. 2012

15 Rule 50 of the Rules of Court prov1des that "no party may file additional evidence after closure of pleadings except by leave of Court".

16 In view of the circumstances. the Court notes that the Applicant was not granted leave by the Court to file additional submissions as provided for under Rule 50 of the Rules of Court

17 Furthermore, the application for leave does not explam the basis for the additional submissions, and the submissions themselves do not provide any new elements

18 In consequence whereof, the Applicant's application for leave to make additional submissions is hereby refused , because it is unfounded and in violation of Rule 50 of the Rules of Court

Done in Port Louis , the Republic of Mauritius , this 7th day of December of the year Two Thousand and Twelve, in English and French. the French text being authontatlve.


Justice Sophia A.B. AKUFFO, President

Robert ENO, Registrar

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