On 26 June 2012, the African Court on Human and Peoples’ Rights ruled that the African Union cannot be sued before the Court on behalf of, or for obligations attributable to, its Member States because it is neither party to the African Charter on Human and Peoples Rights nor to the Protocol establishing the African Court on Human and Peoples’ Rights in spite of having a legal personality as an international organization.
This decision was taken in respect of the Case of Femi Falana v. The African Union (Application 001/2011) where the Applicant, Femi Falana, a Nigerian-based lawyer, alleged that the African Union, as an Organization of African States, was responsible for his inability to exercise the right of access to the African Court because of 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 which requires States to have signed a declaration for their citizens to be able to directly bring cases before the African Court.
The Applicant, Mr. Femi Falana, alleged that he has made several attempts to get the Federal Republic of Nigeria to deposit the declaration required under Article 34 (6) of the Protocol to the African Charter on Human and People’s Rights on the Establishment of an African Court on Human and Peoples’ Rights to no avail. He alleges further that he has been denied access to the African Court because of the failure or refusal of Nigeria to make the declaration allowing Nigerian individuals and NGOs to bring their cases directly before the African Court.
In deciding the matter, the Court considered preliminary objections raised by the representatives of the Respondent, in particular the objection relating to the Court’s jurisdiction over the Application, since the African Union is not a party to Protocol to the African Charter on Human and Peoples Rights on the Establishment of an African Court on Human. The respondent also contended that the ratification of treaties by Member States of the African Union has never been ceded to it by its Member States. Therefore, it cannot be held liable for the failure by the Member States to ratify them, or fail to make the requisite declaration.
The Court, by a majority of seven votes to three, held that the jurisdiction of the Court ratione personae is determined by Articles 5(3) and 34(6) of the Protocol, read together, when an application is filed before the Court by an individual. This requires that a State against which the application is filed has ratified the Protocol and made the declaration allowing individuals and Non-Governmental Organizations to directly institute cases before the Court. In the present case the application was filed against an entity other than a State having ratified the Protocol and made the declaration. Therefore, it falls outside the jurisdictional ambit of the Court.
Additionally, the Court acknowledged that the Protocol establishing the African Court was indeed enacted and adopted by the Assembly of Heads of State and Government of the African Union, as it is claimed by the Applicant, but it noted however that the Protocol was agreed upon by the Member States of the African Union as is evidenced by its preamble. On the Applicant’s contention that the Respondent can be sued before the Court as a corporate community on behalf of its Member States, the Court decided that as an international organization, the African Union has a legal personality separate from the legal personality of its Member States.
The case was heard by a panel of 10 Judges led by the President of the Court, Honorable Justice Gérard NIYUNGEKO (Burundi) and composed of Judges Sophia A.B. AKUFFO, Vice-President (Ghana), Jean MUTSINZI (Rwanda), Bernard M. NGOEPE (South Africa), Modibo T. GUINDO (Mali), Fatsah OUGUERGOUZ (Algeria), Augustino S.L. RAMADHANI, (Tanzania), Duncan TAMBALA (Malawi), Elsie N. THOMPSON (Nigeria) and Sylvain ORÉ (Cote d’Ivoire). The decision was taken by a majority of seven votes to three.
In accordance with Article 28(7) of the Protocol and Rule 60(5) of the Rules of Court, Judges Jean MUTSINZI and Fatsah OUGUERGOUZ attached separate opinions to the Judgment while the Vice-President Sophia A.B. AKUFFO and Judges Bernard M. NGOEPE and Elsie N. THOMPSON expressed a joint dissenting opinion which is appended to the Judgment.
During the delivery of the Judgment the Applicant was represented by Advocate Donald Deya, the Executive Officer of the Pan African Lawyers Union (PALU) and the Respondent was represented by Advocate Bahame T. Nyanduga assisted by officers from the Office of the Legal Counsel of the African Union Commission.