Judgment in the matter of Femi Falanav. The African Union
Application 001/2011
Complaint andProcedure
The Application was lodged with the Court on 20 February 2011 and communicated to the Respondent and to the AU Member States on 28 March 2011. The Court examined the Application and both the Respondents’ response and the Applicant’s reply in September 2011 and decided that written submissions on the matter were closed. The parties were called for a public hearing where they presented their oral arguments on 22nd and 23rd March 2012.
Composition of the Court
The Judgment was delivered by the Court, composed of ten Judges:
- Gérard NIYUNGEKO, President,
- Sophia A.B. AKUFFO, Vice-President
- Jean MUTSINZI, Judge
- Bernard M. NGOEPE, Judge
- Modibo T. GUINDO, Judge
- Fatsah OUGUERGOUZ, Judge
- Augustino S.L. RAMADHANI, Judge
- Duncan TAMBALA, Judge
- Elsie N. THOMPSON, Judge
- Sylvain ORÉ, Judge
and also Robert ENO, Registrar
Brief Facts
The Applicant, a Nigerian national, 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 Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (the Protocol), to no avail. He alleged further that because of the failure or refusal of Nigeria to make the declaration to accept the competence of the Court in line with Article 34(6) of the Protocol,he has been denied access to the Court, resulting to a violation of his rights to freedom from discrimination, fair hearing and equal treatment, as well as his right to be heard.The Applicant prayed the Court to find Article 34(6) of the Protocol as inconsistent with Articles 1,2,7,13,26 and 66 of the African Charter on Human and Peoples’ Rights (the Charter).
FEMI FALANA
In his submissions, the Applicant submitted that the African Charter and the Protocol establishing the Court were adopted by the African Union (the Respondent) and as such it can be brought before the Court in its corporate capacity to represent its members. He said for that reason the Court has jurisdiction to hear the Application; that the requirement for exhaustion of domestic remedies does not apply in this instance and asks the Court to declare it null and void.
The Respondent for its part averred that the Application failed to state a claim against it, either in law or in fact, and submitted that the Charter, the Protocol and the Constitutive Act of the African Union were all adopted by Member States of the Union, and that it is not a party to any of them, and therefore no case can be brought against it for obligations of its Member States under these instruments, in its corporate capacity. The Respondent contended that, the ratification of treaties by Member States of the African Union has never been ceded to it by its Member States and thus it cannot be held liable for the failure by the Member States to ratify them, or fail to make the requisite declaration.
Femi Falana versus Advocate Bahame T. Nyanduga
The Respondent maintained that the Applicant is not entitled to submit cases to the Court both under the Protocol and the Rules of Court, and urged the Court to determine as a preliminary issue whether the Court can exercise jurisdiction ratione personae and rationemateriae in respect of the Application.
Decision of the Court
In accordance with Rules 39(1) and 52(7) of the Rules of Court, the Court consider the preliminary objections raised by the Respondent, in particular, the objection relating to the Court’s jurisdiction over the Application.
While acknowledging that the Protocol was indeed enacted and adopted by the Assembly of Heads of State and Government of the African Union, the Court noted however that “the Protocol was agreed upon by the Member States of the African Union as is evidenced by the preamble of the Protocol…”.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 Court went on to say that “in principle, international obligations arising from a treaty cannot be imposed on an international organization, unless it is a party to such a treaty …as far as an international organization is not a party to a treaty, it cannot be subject to legal obligations arising from that treaty”. The Court concluded that “the mere fact that the African Union has a separate legal personality does not imply that it can be considered as a representative of its Member States with regard to obligations that they undertake under the Protocol… It is therefore the opinion of the Court that the African Union cannot be sued before the Court on behalf of its Member States”.
The Court concluded that “the present case in which the Application has been filed against an entity other than a State having ratified the Protocol and made the declaration, falls outside the jurisdictional ambit of the Court…”.
The Court thus held that “in terms of Articles 5(3) and 34(6) of the Protocol, read together, it has no jurisdiction to hear the case instituted by Femi Falana, Esq. against the African Union.
Having decided that it does not have jurisdiction to hear the Application, the Court concluded that it did not deem it necessary to examine the admissibility and merits of the case.
Separate and dissenting opinions:
In accordance with Article 28(7) of the Protocol and Rule 60(5) of the Rules of Court, Judges MUTSINZI and OUGUERGOUZ attached separate opinions to the judgment and the Vice-President AKUFFO and Judges NGOEPE and THOMPSON, expressed a joint dissenting opinion which is appended to the judgment.
WAANDISHI WA HABARI JOHN NGUNGE (NIPASHE), GRACE MACHA (TANZANIA DAIMA) NA VERONICA MHETA (HABARI LEO ) ALIYESIMAMA) WAKIJADILIANA MARA BAADA YA KUSOMWA KWA HUKUMU HIYO
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