001/11_SO_FO Femi Falana v. African Union
African Union

African Court on Human and Peoples' Rights
In the Matter of
Femi Falana
v
African Union

(Application N° 001/2011)

Separate Opinion of Judge Fatsah Ouguergouz
1. Mr. Femi Falana's Application against the African Union raises the issue of access to the Court's
jurisdiction by individuals and non-governmental oganizations. It does so by challenging the legality of
Article 34(6) which subjects such access to the deposit of a declaration accepting the jurisdiction of the
Court by States Parties. The importance and crucial significance of that issue notwithstanding, I share the
opinion of the Majority according to which the Court has no jurisdiction to entertain Mr. Falana's Application.
It is however my considered opinion that since the Court manifestly lacks the jurisdiction ratione personae
to hear and determine the application, it ought not to have disposed of' it by way of a Judgment as provided
in Rule 52(7) of the Rules: rather, the Application ought to have been rejected without the Court itself
intervening, that is de plano through a simple letter from the Registrar.
2. I have had the opportunity, on numerous occasions to explain my position as a matter of principle, on the
way and manner of dealing with individual applications with regard to which the Court manifestly lacks
personal jurisdiction; which is the case with applications against States Parties which have not made the
optional declaration under Article 34(6) of the Protocol, or against African States which are not Parties to
the Protocol or not members of the African Union or even against an Organ of the African Union (see my
separate opinions attached to the Judgments in the cases of Michelot Yogogombave v. The Republic of
Senegal, Efoua Mbozo 'o Samuel v. The Pan African Parliament, the Convention Nationale des Syndicats
du Secteur Education (CONASYSED) v. The Republic of Gabon, Delta International Investments S.A., MR.
AGL de Lang and Mme. Lang v. The Republic of South Africa, Emmanuel Joseph Uko v. The Republic of
South Africa and Timan Amir Adam v. The Republic of Sudan, as well as my dissenting opinion attached to
the decision in the Case of Ekollo Moundi Alexandre v. The Republic of Cameroon and the Federal
Republic of Nigeria).
3. In all cases where the jurisdiction ratione personae of the Court is manifestly lacking, I am indeed of the
opinion that the Court should not proceed with the judicial consideration of applications received by the
Registry; such applications should rather be processed administratively and rejected de plano through a
simple letter from the Registrar.
4. The Court has rendered decisions (which it formally distinguishes from "Judgments"1 ) in most cases that
it has considered to this day. Whereas it had formal acknowledged that it was "manifest" that it lacked the
jurisdiction to entertain such applications (see for instance, Youssef Ababou v. The Kingdom of Morocco
(para. 12) Daniel Amare & Mulugeta Amare v Mozambique Airlines & Mozambique (para. 8), Ekollo
Moundi& Alexandre v The Republic of Cameroon and the Federal Republic of Nigeria (para. 10),
Convention Nationale des Syndicats du Secteur Education (CONASYSED) v. Republic of Gabon (paras.
11&12), Delta International Investments SA, Mr AGL de Lang and Mme de Lang v. The Republic of South
Africa (paras. 8 & 9), Emmanuel Joseph Uko v. The Republic of South Africa (paras 10 & 11) and Timan
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