20. The public hearing on the Application took place from 22 to 23 March 2012, in Arusha, Tanzania, at
which the Court heard the oral arguments and replies:
For the Applicant: Femi FALANA, Esq.
For the Respondent: (i) Advocate Bahame Mukirya Tom
NYANDUGA
(ii) Mr Bright MANDO, Legal Officer in the Office of The Legal Counsel of the AU Commission
21. At the hearing, questions were put by Members of the Court to the Parties, to which replies were given.
22. After deliberations, the Registry received additional submissions from the Applicant, dated 27 March
2012, in which he indicated that they were submitted in accordance with Rule 47 of the Rules. The Court
decided that the submissions were not acceptable as the request was not competent in terms of the Rules,
and the Registrar was instructed to communicate this decision to the Parties accordingly.
23. By a letter dated 24 April 2012 the Registrar informed the parties of the Court's decision.
III. The Position of the Parties
A. The Position of the Applicant
24. The Applicant starts by noting that by virtue of Article 34(6) of the Protocol enacted by the Respondent,
a State Party is required to make a declaration to accept the competence of the Court to hear and
determine human rights cases filed by individuals and NG0s.
25. With regard to the jurisdiction of the Court, the Applicant submits that, in the present case, it has not
been ousted, because the Respondent is not "a Member State of the African Union." The Applicant
maintains that it is the Respondent which enacted and adopted the Charter and the Protocol, and that the
Respondent has been sued as a corporate community on behalf of its Member States. He adds that it is
clear that the African Union as a whole is representing the African people and their governments, and,
therefore, it is competent to defend actions brought against the Member States.
26. The Applicant further argues that the ouster of a Court's jurisdiction can only arise if the Court is
satisfied by evidence adduced before it, that the right sought to be enforced has been extinguished.
27. The Applicant also contends that it is trite law that a Court has the jurisdiction to determine whether its
jurisdiction has been ousted. He points out that the competence of this Court to determine its jurisdiction is
guaranteed in Article 3(2) of the Protocol which states that "in the event of a dispute as to whether the
Court has jurisdiction, the Court shall decide."
28. The Applicant submits finally that, since Article 34(6) of the Protocol does not require the Respondent
or any of its institutions to make a declaration to accept the jurisdiction of the Court, the Court is competent
to entertain the Application.
29. With regard to the admissibility of the Application, the Applicant asserts that the requirement of
exhaustion of local remedies is not applicable in this case since the Respondent cannot be sued in the
municipal courts of its Member States. He further submits that the domestication by Nigeria of the Charter
and the Constitutive Act of the African Union should be construed as giving him direct access to the Court.
30. With regard to his locus standi, the Applicant argues that he has standing in public interest litigation
since he has a duty to promote public interest litigation in the area of human rights, based on Article 27 (1)
of the Charter, which provides that every individual shall have duties towards his family and society, the
State and other legally recognized communities and the international community, andArticle 29 (7) of the
Charter which provides that the individual shall have the duty to preserve and strengthen positive African
cultural values.
31. The Applicant also states that, being a senior lawyer and a civil rights lawyer in his country, he 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.
32. The Applicant finally submits that he therefore has locus standi to file this Application.
33. With regard to the merits of the case, the Applicant maintains that Article 34(6) of the Protocol is
inconsistent with Article 1, 2, 7, 13, 26 and 66 of the Charter.
34. Concerning the alleged violation of Article 1 of the Charter (the obligation for State Parties to recognize
the rights, duties and freedoms enshrined in the Charter and to adopt legislative or other measures to give
effect to them), the Applicant argues that it is undoubtedly clear that Article 34(6) of the Protocol has
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