(h) The right of the Union to intervene in a member state of the Assembly in respect of grave
circumstances, namely, war crimes, genocide and crimes against humanity...............
(m) Respect for democratic principles, human rights, the rule of law and good governance ..........."
Respondent's predecessor, the OAU, had likewise been empowered, and charged with the obligation, by
Member States to ensure the protection of human and peoples' rights. The Act, the Charter, as well as the
Protocol, have empowered the Respondent to exercise the powers, and to execute obligations, conferred
on it. These powers can be conferred expressly by a constitutive instrument, or may be implied.2 Once so
empowered, the legal organization is able to carry out the authorized duties and functions independently of
the Member States as it is a legal person. It is our view that such has been the case here; accordingly,
there was no need to cite individual Member State, which is also why Article 34(6) is not applicable.
8.1.3 One of the indications that an international legal person has been empowered to carry out certain
functions independently of Member States is its capacity to take decisions by majority.3 Such a decision
would therefore bind even those Member States who voted against it. In terms of Article 7(1) of the Act, the
Respondent does take decisions by majority, consensus failing: "The Assembly shall take its decisions by
consensus or, failing which, by a two- third majority of member states of the Union. However, procedural
matters, including the question whether a matter is one of procedure or not, shall be decided by a simple
majority."
8.1.4 As further indication that Respondent has been empowered to deal with human and peoples' rights
issues itself, organs such as the African Commission on Human and Peoples Rights (the Human Rights
Commission) and this Court, have been created within it to enable it to carry out these duties. The
Respondent itself, and not individual Member States, does for example, manage and conduct the election
of officials to these organs; approves and provides budgets for their activities relating to the protection of
human rights and receives periodic reports from these organs.
8.1.5 As yet a further demonstration of the Respondent's legal personality and that it has been empowered
to deal with human rights issues itself, independently of Member States, the Respondent can seize this
Court for an advisory opinion in respect of these matters in terms of Article 4 of the Protocol.
8.2 Importantly, none of the remedies sought by the Applicant seeks to impose any obligations on either the
Respondent or Member States, particularly the prayer we may be inclined to grant.
8.3 In light of the totality of paragraphs 8.1 and 8.2 above, the argument that the Respondent cannot be
cited as it is not a party to either the Charter or the Protocol, or that no case can be brought against it in
respect of obligations of Member States and therefore that the Applicant has not shown any traceable
causal connection between the Respondent and the Applicant's lack of access to the Court, is irrelevant; so
too is the submission that no case can be brought against the Respondent in respect of obligations of
Member States. We therefore hold that the Respondent has been properly cited.
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