FEMI FALANA V AFRICAN UNION

APPLICATION NUMBER 001/2011

DISSENTING OPINION

INTRODUCTION: In this second part of this expose we bring you excerpts incorporating the ratio decidendi of the court from the dissenting opinion of the African Court in the Femi Falana case. The dissenting opinion dismissed the preliminary objection challenging the jurisdiction of the court and held that the African Union could be cited before the court. It equally held that Article 34(6) was inconsistent with the African Charter on Human and Peoples Rights, but it rejected the call to set aside the offending provision Below are the relevant portions of the judgment. 

Whether the Court has jurisdiction over a non-state entity like the African Union

8.1 It is argued that the Respondent cannot be cited as representing Member States. That may be true; however, Respondent is cited herein on its own, as a legal person, having been established in terms of the Act, Article 2 thereof. The article reads “The African Union is hereby established with the provisions of this Act”. We agree with the majority judgment that the Respondent has international legal personality, separate from the legal personality of its Member States...We, however, disagree with the majority judgment that the Respondent could not be cited in the case before us.

8.1.1 After holding that the United Nations Organization is an international person, the International Court of Justice, in Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, went on to say; “What it does mean is that it is a subject of international law and capable of possessing international rights and duties, and that it has capacity to maintain its rights by bringing international claims”. It is our view that the right to bring international claims carries with it, as a natural legal consequence, the capacity to be sued. We point out later that one of the duties imposed upon the Respondent, through the Charter, is to protect human and peoples' rights; such an obligation would mean nothing if it could not be enforced against the Respondent.

8.1.2 After establishing the Respondent as a legal entity. Member States went further and conferred certain powers on it; these include the power to deal with the protection of human rights on the
Continent....

Respondent’s predecessor, the OAU, had likewise been empowered, and charged with the obligation, by Member States to ensure the protection of human and peoples’ rights. The Act, the Charter, as well as the Protocol, have empowered the Respondent to exercise the powers, and to execute obligations, conferred on it. These powers can be conferred expressly by a constitutive instrument, or may be implied. Once so empowered, the legal organization is able to carry out the authorized duties and functions independently of the Member States as it is a legal person. It is our view that such has been the case here; accordingly, there was no need to cite individual Member State, which is also why Article 34(6) is not applicable.

 8.1.3 One of the indications that an international legal person has been empowered to carry out certain functions independently of Member States is its capacity to take decisions by majority. Such a decision would therefore bind even those Member States who voted against it. In terms of Article 7(1) of the Act, the Respondent does take decisions by majority, consensus failing: “The Assembly shall take its decisions by consensus or, failing which, by a two- third majority of member states of the Union. However, procedural matters, including the question whether a matter is one of procedure or not, shall be decided by a simple majority.”

 8.1.4 As further indication that Respondent has been empowered to deal with human and peoples’ rights issues itself, organs such as the African Commission on Human and Peoples Rights (the Human Rights Commission) and this Court, have been created within it to enable it to carry out these duties. The Respondent itself, and not individual Member States, does for example, manage and conduct the election of officials to these organs; approves and provides budgets for their activities relating to the protection of human rights and receives periodic reports from these organs.

8.1.5 As yet a further demonstration of the Respondent’s legal personality and that it has been empowered to deal with human rights issues itself, independently of Member States, the Respondent can seize this Court for an advisory opinion in respect of these matters in terms of Article 4 of the Protocol.

8.2 Importantly, none of the remedies sought by the Applicant seeks to impose any obligations on either the Respondent or Member States, particularly the prayer we may be inclined to grant.

8.3 In light of the totality of paragraphs 8.1 and 8.2 above, the argument that the Respondent cannot be cited as it is not a party to either the Charter or the Protocol, or that no case can be brought against it in respect of obligations of Member States and therefore that the Applicant has not shown any traceable causal connection between the Respondent and the Applicant's lack of access to the Court, is irrelevant; so too is the submission that no case can be brought against the Respondent in respect of obligations of Member States. We therefore hold that the Respondent has been properly cited.

8.4 It is also argued that Applicant did not exhaust local remedies before approaching this court, as required by Article 6(2) of the Protocol, read together with Article 56(5) of the Charter. In this respect, it is argued that the Applicant, being a Nigerian national, should have taken his country to his national courts to compel his country to make the declaration in terms of Article 34(6) of the Protocol. Respondent’s argument is wrong in two respects. Firstly, the Applicant is not approaching the court as a Nigerian national, nor is he seeking a remedy for himself or Nigerian nationals only. Even if he had succeeded through Nigerian Courts to cause his own country to make the declaration, millions of nationals of the other State Parties to the Protocol which have not made the declaration would still remain barred. That only five State Parties have so far made the declaration, means that the multitude of individuals on the Continent remain barred by Article 34(6). Nigeria’s declaration would hardly have made any difference. The logic of Respondent’s argument is that nationals of each State Party which has not made the declaration should bring applications in every single national jurisdiction before approaching this court. This is a very theoretical approach, virtually impracticable, as opposed to the pragmatic one adopted by the Applicant. The protection of human rights is too important to be left to the vagrancies of such theoretical solutions,

8.5 Furthermore, Respondent contends that, by virtue of Article 34(6) of the Protocol, the Applicant, being an individual, is barred from approaching this court. Surely, one cannot disqualify the Applicant from approaching this Court by invoking the very article the validity of which the Applicant is seeking to challenge. The Court must first hear the matter and only thereafter, (emphasis) decide whether the impugned article is valid or not.Article 3(2) of the Protocol provides that in “the event of a dispute as to whether the Court has jurisdiction, the Court shall decide.” For the Court to decide, it must first be seized by an applicant. It is precisely the person who has been shut out who will knock at the door to be heard on the validity of the ouster clause. This Court therefore has jurisdiction to adjudicate on the validity of Article 34(6) at the instance of an individual applicant. Applicant’s answer to Respondent’s argument is that since he is not citing a member state, but rather the Respondent, Article 34(6) has no application. There is merit in this argument. The Article only requires that State Parties make the declaration, and not non-State Parties. The law is not against an individual per se, but is aimed at protecting a State Party which has not made the declaration; that is why even a foreign individual can sue a State Party that has made the declaration.

9. By reason of it having been empowered, and charged with the obligation, by Member States to administer, apply and enforce the Charter and the Protocol, both of which form the subject matter of this case, the Respondent has in any case a material and direct interest in the matter and therefore had to be cited.

Whether Article 34(6) of the Protocol is inconsistent with the Charter.

15. ...From the above expose, it is clear that, firstly, the Charter ranks higher than the Protocol; a point which, not surprisingly, the Respondent did not dispute. Secondly, the Protocol was brought about solely to enhance the protection of human and peoples’ rights through the Court, in complementarity with the Human Rights Commission. These are the very rights recognized and entrenched in the Charter.

16. To the extent that Article 34(6) denies individuals direct access to the Court, which access the Charter does not deny. the Article, far from being a supplementary measure towards the enhancement of the protection of human rights, as envisaged by Article 66 of the Charter, does the very opposite. It is at odds with the objective, language and spirit of the Charter as it disables the Court from hearing applications brought by individuals against a state which has not made the declaration, even when the protection of human rights entrenched in the Charter, is at stake. We therefore hold that it is inconsistent with the Charter. We do so well aware of Article 30 of the Vienna Convention on the Law of Treaties regarding the application of successive treaties relating to the same subject matter. It is our view that this Article finds no application in the case before us since we are not dealing with two treaties, but with a treaty (the Charter) and a mere protocol to itself (the Protocol).

Whether Article 34(6) should be declared null and void or set aside

17. The question arises whether this Court has the competence to declare Article 34(6) of the Protocol null and void and/or to set it aside. The Court is a creature of the Protocol and its competencies therefore derive from the Protocol. Determining whether or not Article 34(6) is inconsistent with the Charter is a matter of interpretation which the Court is therefore competent to do in terms of Article 3(1) of the Protocol. So too, in holding that this Court has jurisdiction to hear this application, the Court derives its competence from Article 3(2) of the Protocol which empowers it to decide whether or not it has jurisdiction in any particular matter before it. In national jurisdictions where the constitution is the supreme law, any law inconsistent therewith would be liable to be struck down by the Court, the latter deriving the power to do so from the constitution itself. In cast), we find no provision in the Protocol empowering the Court to declare null and void and/or to set aside any Article of the Protocol. Therefore, much as such a move may appear to be the logical thing to do in light of our finding of inconsistency, the applicant’s prayer is not competent. It is, however, hoped that the problems raised by Article 34(6) will receive appropriate attention.

18. The following finding is made: (a) The Court has jurisdiction to hear this application. (b) 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 is inconsistent with the African Charter on Human and Peoples’ Rights. (c) The Applicant’s prayer that Article 34(6) be declared null and void and/or be set aside is denied.