001/11_DO Femi Falana vs The African Union (Dissenting Opinion - Sophia Akuffo, Bernard Ngoepe & Elsie Thompson) African Union African Court on Human and Peoples' Rights Case no: 001/2011 In the matter of: Femi Falana - Applicant Vs The African Union - Respondent Dissenting Opinion Sophia A.B. AKUFFO, Vice-President; Bernard M. NGOEPE and Elsie N. THOMPSON - Judges 1. We have read the majority judgment; regrettably, we are unable to agree with it. The history of the case until the conclusion of the hearing is set out in the majority judgment; there is no need to repeat it here. The Parties: 2. The Applicant: The Applicant is a Nigerian national, describing himself as a human rights activist. He says he has received some awards in the field of human rights. He is a practicing lawyer, based in Lagos, Federal Republic of Nigeria. 3. The Respondent: The Respondent is the African Union (the AU), established in terms of Article 2 of the Constitutive Act of the African Union (the Act). It comprises all states in Africa, barring one. In terms of Article 33, the Act replaces the Charter of the Organization of African Unity (the OAU) and makes the AU a successor to the OAU in all relevant material respects. One of the consequences of such a succession is that instruments such as Charters and Protocols thereto adopted, ratified and acceded to under the OAU, are binding on the AU and Member States unless repudiated; these include the African Charter on Human and Peoples' Rights (the Charter) and the protocols to it such as the Protocol to the African Charter on Human and Peoples Rights on the Establishment of an African Court on Human and Peoples' Rights (the Protocol). The Charter and the Protocol are central to this case. The Applicant's case and the remedies sought 4. The Applicant challenges the validity of Article 34(6) of the Protocol. The Article 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. The Applicant contends that the Article violates various Articles of the Charter and therefore prays the following remedies: "A. A DECLARATION that Article 34(6) of the Protocol on the Establishment of the African Court is illegal, 1

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