Falana Vs. African Union - A New Conundrum In Access To Justice

The development of public interest litigation as an integral part of democracy and the functioning of a municipal legal system is perhaps one of the fundamental gains of democratization process that swept through Africa in the beginning of the twentieth century. There is marked increase in judicial activism and a corresponding rise in public interest litigation as issues of social justice and public accountability continue to engage the Courts. Human rights lawyers, particularly, those who tackled the collapsed military dictatorships and non-governmental organizations frequently seek judicial review of executive actions and wrongs committed by public officials or government agencies with a view to protecting human and peoples’ rights and enhancing public liberty, social justice, integrity and good governance.

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According to Black’s Law Dictionary, "Public Interest Litigation means a legal action initiated in a court of law for the enforcement of public interest or general interest in which the public or class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected." In public interest cases, the right which an individual seeks to enforce may not necessarily flow from a legal wrong and injury suffered by the litigant or a contravention of that person’s individual rights, but in most cases, the litigations are aimed at protecting and promoting collective legitimate human rights and public policy which may be a subject of government violation. Usually, there are no personal gains or private motives for initiating public interest litigation; hence, as a social engineering, the success of public interest litigation is not usually hinged on winning a particular cause of action, but in bringing attention to the violation, sensitizing the public, helping to initiate law reforms while also expanding old rights and creating new ones because the Courts are forced to review and comment on laws and government policies and give appropriate contextual interpretations to them. A government official entrusted with power and public resources has an obligation to be accountable.

Protection of human rights and the improvement of social and economic rights of the vulnerable people as a critical part of social contract is one of the cardinal and historical objectives of public interest litigation. Public interest litigation is not a new phenomenon even though in Africa, lack of public awareness and opportunity for the enforcement of rights violation, paucity of funds for organizations involved in the defense of human rights and decades of military dictatorship that hounded the judiciary from developing this jurisprudence accounted for its slow pace of development particularly in mid and latter part of the Nineteenth century when most of the African States became independent from their colonial masters. In many parts of Europe and North America for instance, Courts have for centuries, routinely served as an institution, that not only provide legal redress to the citizens but also as an instrument of social change formulating policies and suggesting law reforms for the States.

Apart from the municipal Courts who routinely review executive actions on normative human rights, contracting Parties to the European Convention on Human Rights have long incorporated the Convention into their own national legal orders, either through constitutional provision, subsidiary legislation or judicial pronouncements. The European Convention on Human Rights is an international treaty under which the member States of the Council of Europe promise to secure fundamental civil and political rights, not only to their own citizens but also to everyone within their jurisdiction. The Convention, which was signed on 4 November 1950 in Rome, entered into force in 1953.

To underscore the importance attached to human rights, the Council of Europe also established the European Court of Human Rights as a supra- national institution in 1959 with its location in Strasbourg, France. The Court has jurisdiction to hear cases brought before it by private individuals or State parties alleging violations of the civil and political rights set out in the European Convention on Human Rights. According to the information supplied by the Court, since its inception as an institution set up primarily to monitor respect for the human rights of 800 million Europeans in the 47 Council of Europe member States that have ratified the Convention, “the Court has delivered more than 10,000 judgments. These are binding on the countries concerned and have led governments to alter their legislation and administrative practice in a wide range of areas. The Court’s case-law makes the Convention a powerful living instrument for meeting new challenges and consolidating the rule of law and democracy in Europe”. The court is not part of the European Union and under Protocol no.11 of the Convention. And effective November 1, 1998, the Court became full-time while the European Commission of Human Rights was subsequently abolished.

Perhaps, it was in an attempt to replicate and create an African version of the Court that the African Union set up the African Court on Human and Peoples' Rights as a continental court to ensure protection of human and peoples’ rights in Africa. Unlike the European Court whose full operation led to the abolishment of the European Commission of Human Rights, the African Court complements and reinforces the functions of the African Commission on Human and Peoples' Rights. According to the information provided y the Court, it “was established by virtue of Article 1 of the Rights, which was adopted by Member States of the then Organization of African Unity (OAU) in Ouagadougou, Burkina Faso, in June 1998. The Protocol came into force on 25 January 2004 after it was ratified by more than 15 countries. The Court has jurisdiction over all cases and disputes submitted to it concerning the interpretation and application of the African Charter on Human and Peoples' Rights, the (the Charter), the Protocol and any other relevant human rights instrument ratified by the States concerned”. The Court which started its operations in 2006 and delivered its first decision in 2007 has received about twenty four applications and concluded about eight cases.

According to the Protocol (Article 5) and the Rules (Rule 33), the African Court may receive complaints and/or applications submitted to it either by the African Commission of Human and Peoples’ Rights or State parties to the Protocol or African Intergovernmental Organizations.

However, one very unsettling aspect of the African Court is that only Non-Governmental Organizations with observer status before the African Commission on Human and Peoples’ Rights and individuals from States which have made a Declaration accepting the jurisdiction of the Court can also institute cases directly before the Court.. The effect of this is that even if a member State has ratified the Protocol, ratification alone cannot give direct right of access to litigants from that State unless that ratifying State has gone a step further to made a Declaration accepting the jurisdiction of the Court. There is also a super-added pre-requisite of exhaustion of local remedies in the member state’s national Court which is also one of the prerequisites for the European Court to assume jurisdiction. Unfortunately, to date, only five member States have made such Declaration out of fifty –four African member States effectively shutting out its door against millions of citizens from forty-nine States including states.

It is in the light of this seemingly bizarre and uncanny state of affairs for the enforcement of rights which has made the dream of attaining legal redress for rights violation in the supra-national court in Africa illusionary, deceptive, unobtainable and elusive that Mr. Femi Falana, a Nigerian renowned civil rights leader and former President of West African Bar Association (WABA) dragged the African Union before the African Court in February 2011 to challenge the validity of Article 34(6) of the Protocol which bars individuals and Non-Governmental organizations (NGOs) from accessing this Court, except where a respondent state has made a special declaration accepting to be cited by an individual or an NGO as being in conflict with the certain provision of the African Charter on Human and Peoples' Rights. Being a senior lawyer and a civil rights lawyer in Nigeria, Falana obviously has clients who would like to approach the Court but he is unable to discharge his duties to them because of the requirement of Article 34(6) of the Protocol.

However, as can be seen from the case, which is briefed below, the issues presented provided the African Court with an opportunity to address some of the nagging jurisdictional problems that have confronted the operation of the Court since inception and proffer recommendations for reform in order to make the Court more accessible to the vulnerable and disadvantaged peoples of Africa who are supposed to be the ultimate beneficiaries of the Court’s jurisdiction. Regrettably, the Court by a majority decision took a rather parochial and narrow view of the broad issues involved and failed to take advantage of the conundrum presented in the matter of Re: Femi Falana –v- The African Union, Application NO. 001/2011, African Court On Human And Peoples’ Rights, to push for reforms in the jurisprudence.

The issues presented for the African Court ’s resolution in Re Falana were whether the Court could declare Article 34(6) of the Protocol inconsistent with Articles 1, 2, 7, 13, 26 and 66 of the African Charter on Human and Peoples' Rights, whether the requirement for a State to make a declaration to allow access to the Court by individuals and Non-governmental Organizations was a violation of his rights to freedom from discrimination, fair hearing and equal treatment, as well as his right to be heard and whether the African Court could annul a provision of the Protocol, in particular, Article 34(6) of the Protocol for being inconsistent with the Provisions of the African Charter.

The issues presented for the African Court ’s resolution in Re Falana were whether the Court could declare Article 34(6) of the Protocol inconsistent with Articles 1, 2, 7, 13, 26 and 66 of the African Charter on Human and Peoples' Rights, whether the requirement for a State to make a declaration to allow access to the Court by individuals and Non-governmental Organizations was a violation of his rights to freedom from discrimination, fair hearing and equal treatment, as well as his right to be heard and whether the African Court could annul a provision of the Protocol, in particular, Article 34(6) of the Protocol for being inconsistent with the Provisions of the African Charter.

By an application dated 14 February 2011, Femi Falana, human rights lawyer, and former president of the West African Bar Association (WABA) filed a suit against the African Union before the African Court of Peoples and Human Rights alleging inter alia, that he had 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 to no avail. He also alleged that he had been denied access to the Court 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 further submitted in his action that since his efforts to have Nigeria make the declaration had failed, he decided to file a lawsuit against the African Union as a representative of its 54 Member States.

Lastly, Falana, , sought amongst others, a declaration that Article 34(6) of the Protocol on the Establishment of the African Court is illegal, null and void as it was inconsistent with Articles I, 2, 7, 13, 26 and 66 of the African Charter on Human and Peoples' Rights; a declaration that he was entitled to file human rights complaints before the African Court by virtue of Article 7 of the African Charter on Human and Peoples' Rights and an Order of the African Court annulling Article 34(6) of the Protocol for its inconsistency with the provisions of the African Charter on Human and Peoples' Rights.

The Respondent, African Union, in its preliminary objection opposing the jurisdiction of the Court maintained that it was not a party to the African Charter, nor to the Protocol and that therefore, no case could be brought against it for obligations of Member States under the Charter and the Protocol, in its corporate capacity. The African Union also argued amongst others, while urging the Court to uphold its preliminary objection and dismiss the case, that the Protocol was not adopted by the African Union but by its Member States, as evidenced in the preamble to the Protocol, that the African Union is not a party to the Protocol and that the Protocol in Article 34(6) talks about a State, and the African Union not being a state, could not ratify the Protocol.

The African Union also argued that the ratification of treaties by Member States of the African Union has never been ceded to the African Union by its Member States and that the African Union could not be held liable for failure by the Member States to ratify the Protocol or to make the requisite declaration, and therefore, no case could be brought against it for obligations of Member States under the Charter and the Protocol in its corporate capacity stating further that the African Union could not assume obligations of sovereign Member States which have sovereign rights when ratifying the Protocol and making the declaration.

In a split decision of seven to three, majority of the Court did not answer any of the questions but held, dismissing the case, that in terms of Articles 5(3) and 34(6) of the Protocol, read together, the Court had no jurisdiction to hear the case instituted by Femi Falana against the African Union.

In arriving at its decision, the Court undertook a brief and tapered analysis of public international law without attempting to answer any of the questions presented for determination, to wit: whether the Court could declare Article 34(6) of the Protocol inconsistent with Articles 1, 2, 7, 13, 26 and 66 of the African Charter on Human and Peoples' Rights, whether the requirement for a State to make a declaration to allow access to the Court by individuals and Non-governmental Organizations was a violation of his rights to freedom from discrimination, fair hearing and equal treatment and whether the African Court could annul a provision of the Protocol, in particular, Article 34(6) of the Protocol for being inconsistent with the Provisions of the African Charter.

Rather, the Court while acknowledging that the African Union is a subject of international law and capable of possessing international rights and duties concluded 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 or it is subject to such obligations by any other means recognized under international law. That as far as an international organization is not a party to a treaty; it cannot be subject to legal obligations arising from that treaty quoting Article 34 of the 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations.

The minority opinion disagreed with the reasoning of the majority and reasoned, though dismissing the case for another reason, that by reason of the African Union 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 African Union has in any case a material and direct interest in the case and therefore had to be cited.

On the relationship between the Charter and the Protocol, the minority Court adopted a wider approach to the question reasoned, very correctly that the Charter ranks higher than the Protocol and held the provision of the Protocol inconsistent with the enabling Charter. The minority Court agreed with Falana that “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”

Finally, the minority Court held that the Court has jurisdiction to hear Falana’s application and 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 is inconsistent with the African Charter on Human and Peoples' Rights. The minority Court however, denied Falana’s prayer that the Court declared Article 34(6) null and void in the hope that the problems created by the Article would receive appropriate remedy from the African Union.

The African Court in Re: Falana failed to take advantage of the expansive issues presented to write an advisory Opinion which would have ignited public debate about the future of the Court and form the basis for jurisprudential reform. This way, the problems raised by Article 34(6) could have received public attention and probably appropriate remedial consideration. For instance, one of the questions that will continue to beg for answer before the Court is the relationship between a Protocol and Charter and in the event of the two contradicting one another on the same subject matter as is the case with the African Charter and its Protocol, which one prevails? Albeit, it is trite in international law that a Protocol is subservient to a Charter.

The least the majority Court could have done was to determine whether or not Article 34(6) is inconsistent with the Charter. This is a matter of interpretation which the Court is competent to do in terms of Article 3(1) of the Protocol. In municipal law, where the constitution is the supreme law, any law inconsistent with the Constitution would be declared null and void by the Courts because the Courts derives their power to do so from the Constitution which is the ultimate law of a state. If an article of a Protocol is inconsistent with a similar provision of the Charter, the Court should treat it the same way without violating the principles of public international law; but the African Court was reluctant to declare Article 34(6) of the Protocol null and void and or to set it aside presumably because the Court itself, being a creation of the Protocol could go on a voyage of self extinct by so doing having been entrapped in the jurisprudential web.

In addition, the provision of Article 34(6) of the Protocol which bars individuals and Non-Governmental organizations (NGOs) from accessing this Court, except where a respondent state has made a special declaration accepting to be cited by an individual or an NGO is not only inconsistent with the African Charter of Peoples’ and Human Rights, but it is also repugnant to natural justice, equity and good conscience because the article calls for the state who may be the potential respondent in a rights violation application with legal consequences to declare to be bound by the decision of the Court which might end up being unfavorable to the state. The state has the cake and the knife as far as Article 34(6) of the Protocol is concerned.

Ratification by a member state should have been the only requirement for binding the state just as it is the practice at the European Court of Human Rights. A treaty becomes part of the municipal law of a nation only when the treaty has been ratified and no further steps are necessary for the enforcement of the treaty in the municipal Court. Further, the protection of human rights is too important to be consigned into the whims of the political class or entrusted to the care of public officials who are the potential torturers and expect them to make a declaration to be bound by the decision of the Court. Such an assumption is not only presumptive and preposterous; it also makes the whole essence of establishing the Court non-justiciable, idealistic and impracticable.

Nigeria for instance, has ratified both the Charter and the Protocol and domesticated the Charter as a municipal law enforceable and binding in Nigeria, but because Nigerian government has not made a declaration to be bound by the decision of the African Court, the Court cannot open its doors to victims of human rights violation in Nigeria and Nigerians involved in public interest litigation to advance the cause of human rights before the Court. As noted in this paper, only five States out of fifty four have made the declaration thereby making the Court out of bound to citizens of forty-nine African States which in effect, would also lead to judicial redundancy and idleness by the Court personnel in the face of wanton rights violations going on in Africa. The implantation of Article 34(6) into the Protocol is therefore a Trojan horse for making the enforcement of fundamental rights in the African court a whimsical fantasy.

Unfortunately, the African Court has no appellate jurisdiction, so the matter as it were, has reached its finality as the Court has failed to leave its door ajar for free access to justice. Conversely, the novel challenges posed by the Decision in Re: Falana are far from being over unless the African Union is not fully committed to the guarantee of fundamental rights for all in Africa.



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Re: Falana Vs. African Union - A New Conundrum In Access To Justice
Bode Eluyera posted on 08-20-2012, 12:54:57 PM


The development of public interest litigation as an integral part of democracy and the functioning of a municipal legal system is perhaps one of the fundamental gains of democratization process that swept through Africa in the beginning of the twentieth century. There is marked increase in judicial activism and a corresponding rise in public interest litigation as issues of social justice and public accountability continue to engage the Courts. Human rights lawyers, particularly, those who tackled the collapsed military dictatorships and non-governmental organizations frequently seek judicial review of executive actions and wrongs committed by public officials or government agencies with a view to protecting human and peoples’ rights and enhancing public liberty, social justice, integrity and good governance.



alt



According to Black’s Law Dictionary, "Public Interest Litigation means a legal action initiated in a court of law for the enforcement of public interest or general interest in which the public or class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected." In public interest cases, the right which an individual seeks to enforce may not necessarily flow from a legal wrong and injury suffered by the litigant or a contravention of that person’s individual rights, but in most cases, the litigations are aimed at protecting and promoting collective legitimate human rights and public policy which may be a subject of government violation. Usually, there are no personal gains or private motives for initiating public interest litigation; hence, as a social engineering, the success of public interest litigation is not usually hinged on winning a particular cause of action, but in bringing attention to the violation, sensitizing the public, helping to initiate law reforms while also expanding old rights and creating new ones because the Courts are forced to review and comment on laws and government policies and give appropriate contextual interpretations to them. A government official entrusted with power and public resources has an obligation to be accountable.





Protection of human rights and the improvement of social and economic rights of the vulnerable people as a critical part of social contract is one of the cardinal and historical objectives of public interest litigation. Public interest litigation is not a new phenomenon even though in Africa, lack of public awareness and opportunity for the enforcement of rights violation, paucity of funds for organizations involved in the defense of human rights and decades of military dictatorship that hounded the judiciary from developing this jurisprudence accounted for its slow pace of development particularly in mid and latter part of the Nineteenth century when most of the African States became independent from their colonial masters. In many parts of Europe and North America for instance, Courts have for centuries, routinely served as an institution, that not only provide legal redress to the citizens but also as an instrument of social change formulating policies and suggesting law reforms for the States.





Apart from the municipal Courts who routinely review executive actions on normative human rights, contracting Parties to the European Convention on Human Rights have long incorporated the Convention into their own national legal orders, either through constitutional provision, subsidiary legislation or judicial pronouncements. The European Convention on Human Rights is an international treaty under which the member States of the Council of Europe promise to secure fundamental civil and political rights, not only to their own citizens but also to everyone within their jurisdiction. The Convention, which was signed on 4 November 1950 in Rome, entered into force in 1953.





To underscore the importance attached to human rights, the Council of Europe also established the European Court of Human Rights as a supra- national institution in 1959 with its location in Strasbourg, France. The Court has jurisdiction to hear cases brought before it by private individuals or State parties alleging violations of the civil and political rights set out in the European Convention on Human Rights. According to the information supplied by the Court, since its inception as an institution set up primarily to monitor respect for the human rights of 800 million Europeans in the 47 Council of Europe member States that have ratified the Convention, “the Court has delivered more than 10,000 judgments. These are binding on the countries concerned and have led governments to alter their legislation and administrative practice in a wide range of areas. The Court’s case-law makes the Convention a powerful living instrument for meeting new challenges and consolidating the rule of law and democracy in Europe”. The court is not part of the European Union and under Protocol no.11 of the Convention. And effective November 1, 1998, the Court became full-time while the European Commission of Human Rights was subsequently abolished.





Perhaps, it was in an attempt to replicate and create an African version of the Court that the African Union set up the African Court on Human and Peoples' Rights as a continental court to ensure protection of human and peoples’ rights in Africa. Unlike the European Court whose full operation led to the abolishment of the European Commission of Human Rights, the African Court complements and reinforces the functions of the African Commission on Human and Peoples' Rights. According to the information provided y the Court, it “was established by virtue of Article 1 of the Rights, which was adopted by Member States of the then Organization of African Unity (OAU) in Ouagadougou, Burkina Faso, in June 1998. The Protocol came into force on 25 January 2004 after it was ratified by more than 15 countries. The Court has jurisdiction over all cases and disputes submitted to it concerning the interpretation and application of the African Charter on Human and Peoples' Rights, the (the Charter), the Protocol and any other relevant human rights instrument ratified by the States concerned”. The Court which started its operations in 2006 and delivered its first decision in 2007 has received about twenty four applications and concluded about eight cases.





According to the Protocol (Article 5) and the Rules (Rule 33), the African Court may receive complaints and/or applications submitted to it either by the African Commission of Human and Peoples’ Rights or State parties to the Protocol or African Intergovernmental Organizations.





However, one very unsettling aspect of the African Court is that only Non-Governmental Organizations with observer status before the African Commission on Human and Peoples’ Rights and individuals from States which have made a Declaration accepting the jurisdiction of the Court can also institute cases directly before the Court.. The effect of this is that even if a member State has ratified the Protocol, ratification alone cannot give direct right of access to litigants from that State unless that ratifying State has gone a step further to made a Declaration accepting the jurisdiction of the Court. There is also a super-added pre-requisite of exhaustion of local remedies in the member state’s national Court which is also one of the prerequisites for the European Court to assume jurisdiction. Unfortunately, to date, only five member States have made such Declaration out of fifty –four African member States effectively shutting out its door against millions of citizens from forty-nine States including states.





It is in the light of this seemingly bizarre and uncanny state of affairs for the enforcement of rights which has made the dream of attaining legal redress for rights violation in the supra-national court in Africa illusionary, deceptive, unobtainable and elusive that Mr. Femi Falana, a Nigerian renowned civil rights leader and former President of West African Bar Association (WABA) dragged the African Union before the African Court in February 2011 to challenge the validity of Article 34(6) of the Protocol which bars individuals and Non-Governmental organizations (NGOs) from accessing this Court, except where a respondent state has made a special declaration accepting to be cited by an individual or an NGO as being in conflict with the certain provision of the African Charter on Human and Peoples' Rights. Being a senior lawyer and a civil rights lawyer in Nigeria, Falana obviously has clients who would like to approach the Court but he is unable to discharge his duties to them because of the requirement of Article 34(6) of the Protocol.





However, as can be seen from the case, which is briefed below, the issues presented provided the African Court with an opportunity to address some of the nagging jurisdictional problems that have confronted the operation of the Court since inception and proffer recommendations for reform in order to make the Court more accessible to the vulnerable and disadvantaged peoples of Africa who are supposed to be the ultimate beneficiaries of the Court’s jurisdiction. Regrettably, the Court by a majority decision took a rather parochial and narrow view of the broad issues involved and failed to take advantage of the conundrum presented in the matter of Re: Femi Falana –v- The African Union, Application NO. 001/2011, African Court On Human And Peoples’ Rights, to push for reforms in the jurisprudence.



The issues presented for the African Court ’s resolution in Re Falana were whether the Court could declare Article 34(6) of the Protocol inconsistent with Articles 1, 2, 7, 13, 26 and 66 of the African Charter on Human and Peoples' Rights, whether the requirement for a State to make a declaration to allow access to the Court by individuals and Non-governmental Organizations was a violation of his rights to freedom from discrimination, fair hearing and equal treatment, as well as his right to be heard and whether the African Court could annul a provision of the Protocol, in particular, Article 34(6) of the Protocol for being inconsistent with the Provisions of the African Charter.



The issues presented for the African Court ’s resolution in Re Falana were whether the Court could declare Article 34(6) of the Protocol inconsistent with Articles 1, 2, 7, 13, 26 and 66 of the African Charter on Human and Peoples' Rights, whether the requirement for a State to make a declaration to allow access to the Court by individuals and Non-governmental Organizations was a violation of his rights to freedom from discrimination, fair hearing and equal treatment, as well as his right to be heard and whether the African Court could annul a provision of the Protocol, in particular, Article 34(6) of the Protocol for being inconsistent with the Provisions of the African Charter.





By an application dated 14 February 2011, Femi Falana, human rights lawyer, and former president of the West African Bar Association (WABA) filed a suit against the African Union before the African Court of Peoples and Human Rights alleging inter alia, that he had 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 to no avail. He also alleged that he had been denied access to the Court 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 further submitted in his action that since his efforts to have Nigeria make the declaration had failed, he decided to file a lawsuit against the African Union as a representative of its 54 Member States.



Lastly, Falana, , sought amongst others, a declaration that Article 34(6) of the Protocol on the Establishment of the African Court is illegal, null and void as it was inconsistent with Articles I, 2, 7, 13, 26 and 66 of the African Charter on Human and Peoples' Rights; a declaration that he was entitled to file human rights complaints before the African Court by virtue of Article 7 of the African Charter on Human and Peoples' Rights and an Order of the African Court annulling Article 34(6) of the Protocol for its inconsistency with the provisions of the African Charter on Human and Peoples' Rights.



The Respondent, African Union, in its preliminary objection opposing the jurisdiction of the Court maintained that it was not a party to the African Charter, nor to the Protocol and that therefore, no case could be brought against it for obligations of Member States under the Charter and the Protocol, in its corporate capacity. The African Union also argued amongst others, while urging the Court to uphold its preliminary objection and dismiss the case, that the Protocol was not adopted by the African Union but by its Member States, as evidenced in the preamble to the Protocol, that the African Union is not a party to the Protocol and that the Protocol in Article 34(6) talks about a State, and the African Union not being a state, could not ratify the Protocol.



The African Union also argued that the ratification of treaties by Member States of the African Union has never been ceded to the African Union by its Member States and that the African Union could not be held liable for failure by the Member States to ratify the Protocol or to make the requisite declaration, and therefore, no case could be brought against it for obligations of Member States under the Charter and the Protocol in its corporate capacity stating further that the African Union could not assume obligations of sovereign Member States which have sovereign rights when ratifying the Protocol and making the declaration.



In a split decision of seven to three, majority of the Court did not answer any of the questions but held, dismissing the case, that in terms of Articles 5(3) and 34(6) of the Protocol, read together, the Court had no jurisdiction to hear the case instituted by Femi Falana against the African Union.



In arriving at its decision, the Court undertook a brief and tapered analysis of public international law without attempting to answer any of the questions presented for determination, to wit: whether the Court could declare Article 34(6) of the Protocol inconsistent with Articles 1, 2, 7, 13, 26 and 66 of the African Charter on Human and Peoples' Rights, whether the requirement for a State to make a declaration to allow access to the Court by individuals and Non-governmental Organizations was a violation of his rights to freedom from discrimination, fair hearing and equal treatment and whether the African Court could annul a provision of the Protocol, in particular, Article 34(6) of the Protocol for being inconsistent with the Provisions of the African Charter.



Rather, the Court while acknowledging that the African Union is a subject of international law and capable of possessing international rights and duties concluded 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 or it is subject to such obligations by any other means recognized under international law. That as far as an international organization is not a party to a treaty; it cannot be subject to legal obligations arising from that treaty quoting Article 34 of the 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations.



The minority opinion disagreed with the reasoning of the majority and reasoned, though dismissing the case for another reason, that by reason of the African Union 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 African Union has in any case a material and direct interest in the case and therefore had to be cited.



On the relationship between the Charter and the Protocol, the minority Court adopted a wider approach to the question reasoned, very correctly that the Charter ranks higher than the Protocol and held the provision of the Protocol inconsistent with the enabling Charter. The minority Court agreed with Falana that “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”



Finally, the minority Court held that the Court has jurisdiction to hear Falana’s application and 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 is inconsistent with the African Charter on Human and Peoples' Rights. The minority Court however, denied Falana’s prayer that the Court declared Article 34(6) null and void in the hope that the problems created by the Article would receive appropriate remedy from the African Union.



The African Court in Re: Falana failed to take advantage of the expansive issues presented to write an advisory Opinion which would have ignited public debate about the future of the Court and form the basis for jurisprudential reform. This way, the problems raised by Article 34(6) could have received public attention and probably appropriate remedial consideration. For instance, one of the questions that will continue to beg for answer before the Court is the relationship between a Protocol and Charter and in the event of the two contradicting one another on the same subject matter as is the case with the African Charter and its Protocol, which one prevails? Albeit, it is trite in international law that a Protocol is subservient to a Charter.



The least the majority Court could have done was to determine whether or not Article 34(6) is inconsistent with the Charter. This is a matter of interpretation which the Court is competent to do in terms of Article 3(1) of the Protocol. In municipal law, where the constitution is the supreme law, any law inconsistent with the Constitution would be declared null and void by the Courts because the Courts derives their power to do so from the Constitution which is the ultimate law of a state. If an article of a Protocol is inconsistent with a similar provision of the Charter, the Court should treat it the same way without violating the principles of public international law; but the African Court was reluctant to declare Article 34(6) of the Protocol null and void and or to set it aside presumably because the Court itself, being a creation of the Protocol could go on a voyage of self extinct by so doing having been entrapped in the jurisprudential web.



In addition, the provision of Article 34(6) of the Protocol which bars individuals and Non-Governmental organizations (NGOs) from accessing this Court, except where a respondent state has made a special declaration accepting to be cited by an individual or an NGO is not only inconsistent with the African Charter of Peoples’ and Human Rights, but it is also repugnant to natural justice, equity and good conscience because the article calls for the state who may be the potential respondent in a rights violation application with legal consequences to declare to be bound by the decision of the Court which might end up being unfavorable to the state. The state has the cake and the knife as far as Article 34(6) of the Protocol is concerned.



Ratification by a member state should have been the only requirement for binding the state just as it is the practice at the European Court of Human Rights. A treaty becomes part of the municipal law of a nation only when the treaty has been ratified and no further steps are necessary for the enforcement of the treaty in the municipal Court. Further, the protection of human rights is too important to be consigned into the whims of the political class or entrusted to the care of public officials who are the potential torturers and expect them to make a declaration to be bound by the decision of the Court. Such an assumption is not only presumptive and preposterous; it also makes the whole essence of establishing the Court non-justiciable, idealistic and impracticable.



Nigeria for instance, has ratified both the Charter and the Protocol and domesticated the Charter as a municipal law enforceable and binding in Nigeria, but because Nigerian government has not made a declaration to be bound by the decision of the African Court, the Court cannot open its doors to victims of human rights violation in Nigeria and Nigerians involved in public interest litigation to advance the cause of human rights before the Court. As noted in this paper, only five States out of fifty four have made the declaration thereby making the Court out of bound to citizens of forty-nine African States which in effect, would also lead to judicial redundancy and idleness by the Court personnel in the face of wanton rights violations going on in Africa. The implantation of Article 34(6) into the Protocol is therefore a Trojan horse for making the enforcement of fundamental rights in the African court a whimsical fantasy.



Unfortunately, the African Court has no appellate jurisdiction, so the matter as it were, has reached its finality as the Court has failed to leave its door ajar for free access to justice. Conversely, the novel challenges posed by the Decision in Re: Falana are far from being over unless the African Union is not fully committed to the guarantee of fundamental rights for all in Africa.



..Read the full article
Re: Falana Vs. African Union - A New Conundrum In Access To Justice
Luckyboy posted on 08-22-2012, 09:39:48 AM
Bode:
If you get off this twisted obsession of seeing everything from the narrow prism of ethnicity and the sickening unabashed currying of attention from particular individuals; spend more time researching the real problems of the country, bidding more valuable time for deeper analysis, you will be more relevant in your honest desire to see to the improvement of conditions of the people.

The quality of your endeavors will distinguish your writings. More does not necessarily mean good.
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