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Falana faults AU over objection to access African Court

LAGOS — Prominent human rights lawyer, Mr Femi Falana, has faulted the African Union (AU) over the organisation’s objections to grant him access to the African Court on Human and Peoples’ Rights to challenge alleged violation of his “right to participate in the government of his country; right to the public services, and freedom from discrimination.”

The AU had, while responding to Falana’s case to the Court said: “The Applicant fails to state a claim against the African Union either in law or in fact upon which any relief may be granted. The AU is not a party to the African Charter on Human and Peoples’ Rights nor the Protocol establishing the African Court on Human and Peoples’ Rights.”

However, Falana in his reply filed at the Court this week said: “The Respondent has been sued as a corporate community on behalf of its member states. In Callist Mwatela & Ors. v. Secretary General of the East African Community (EACJ 2008) Reference No: 1 of 2005, it was held that legally the organs are not corporate entities, but are component parts of the community, which is an act of the corporate community.

“Ordinarily, an act of an organ in discharging its functions is an act of the corporate community. However, in areas where a function of the Partner States has not been ceded to the community, an organ may discharge the function in the context of the Partner States acting together… It follows that if in the amendment process the Treaty was infringed, it was infringed by the Partner States.

The reference therefore cannot be barred on the ground that its subject matter are decisions and actions of organs of the Community.”

The African Charter was enacted by the Respondent pursuant to the Charter of the Organization of African Unity which stipulates that “freedom, equality, justice and dignity are essential objectives for the achievement of the legitimate aspirations of the African Peoples.”

Falana also cited Kadi v. Council of the European Union and Commission of the European Communities (ECJ, September 3, 2008) where the European Court of Justice “set aside the judgment by the Court of First Instance, holding that the Court has jurisdiction to review measures adopted by the Community giving effect to resolutions of the security council of the United Nations dealing with the international terrorism sanctions regime.

The ECJ found that the freezing of assets imposed on the Claimants’ accounts infringed on their fundamental rights under Community Law.”

“Therefore, the AU cannot be precluded from acting on its own behalf and on behalf of the Member States it has power to represent,” Falana added.

Falana also argued that, “this suit pertains to the legal validity of Article 34(6) of the Protocol enacted by the Respondent which has denied the Applicant access to the African Court on Human and Peoples Rights on account of the refusal of Nigeria to make a declaration to accept the competence of the Court.”

Falana added that he “has not challenged the sovereign right of the Member States of the Respondent to enact the Protocol. The issue for determination is whether Article 34(6) of the Protocol which bars the Applicant from filing cases at the African Court due to the failure of Nigeria to make a Declaration is not in conflict with Article 7 of the African Charter which has guaranteed the right of every individual to fair hearing.

In other words, the case pertains to the legality of the power of the member states of the Respondent to enact Article 34(6) of the Protocol contrary to the provision of Articles 1,2,7 and 13 of the African Charter.”

According to Falana, “34(6) of the Protocol to the African Court offends Article 27 of the Vienna Convention on the Law of Treaties which states that “A party may not invoke provisions of its own internal law as justification for failure to carry out an international agreement.

There is also a conflict between Article 7(1) of the African Charter on Human and Peoples’ Rights and Article 34(6) of the Protocol enacted by the Respondent. The Respondent lacks the vires to enact the Protocol to the extent that the Applicant has been denied access to the African Court.”

“By virtue of Article 4(m) of the Constitutive Act of the African Union the Respondent is under an obligation to have respect for democratic principles, human rights, the rule of law and good governance.  Article 34(6) of the Protocol is in conflict with Article 27(1) and 29(1) of the African Charter which have enjoined the Applicant to perform duties to his “family and society, the state and other legally recognized communities and the international community”, and to “preserve and strengthen positive African values”.

“Article 13(3) of the African Charter is not limited to equality of access to public property in Member States alone. It pertains to the right of access of all individuals in Africa to public property and services in strict equality of all persons before the law.

Also, the Respondent cannot be sued in any municipal court in Africa and as such the Applicant could not have exhausted domestic remedies in Nigeria before filing this action. The exhaustion of domestic remedies is not without exceptions.

Having domesticated and enacted the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act 1983 and the Treaty to Establish the African Union (Ratification and Enforcement) Act 2003 Nigeria, the Applicant’s country has made a declaration to accept the competence of the African Court on Human and People’s Rights.

Earlier, the AU had claimed that,  “The Applicant fails to state a claim against the African Union either in law or in fact upon which any relief may be granted. The AU is not a party to the African Charter on Human and Peoples’ Rights nor the Protocol establishing the African Court on Human and Peoples’ Rights.”

The AU also argued that “no case can be brought against it for obligations of Member States under the African Charter and the African Court protocol. Besides, the Applicant has not shown any traceable causal connection whatsoever between the AU and his lack of access to the African Court. There is therefore no case between the Applicant and the AU to be decided by the Court.


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