null and void as it is inconsistent with Articles 1, 2, 7, 13, 26 and 66 of the African Charter on Human
and Peoples' Rights."
"B. A DECLARATION that the Applicant is entitled to file human rights complaints before the African Court
by virtue of Article 7 of the African Charter on Human and Peoples' Rights."
"C.AN ORDER annulling Article 34(6) of the Protocol on the Establishment of the African Court forthwith."
Respondent's case
5. The application is opposed by the Respondent on the grounds which, broadly stated. are, firstly, lack of
jurisdiction over the Respondent as well as the Applicant's lack of locus standi, and, secondly, that the
impugned article is in any case not in conflict with the provisions of the Charter. Under the first point, a
number of subsidiary grounds are advanced; they will be dealt with later.
6. Although the Respondent raised as a preliminary objection lack of jurisdiction, the parties were
requested by the Court to argue both the preliminary objections and the merits together at the hearing; that
was how the hearing was conducted. This was to avoid parties having possibly to come back after the
preliminary stage, the intention being to save time, costs and also to avoid inconvenience to the parties.
7. We are aware that not being a signatory to a treaty, a third party may not be sued under that treaty.
However, for the reasons which will become apparent later, this case is, in our view, different.
8. As said earlier, a number of related points are raised under lack of jurisdiction.
8.1 It is argued that the Respondent cannot be cited as representing Member States. That may be true;
however, Respondent is cited herein on its own, as a legal person, having been established in terms of the
Act, Article 2 thereof. The article reads "The African Union is hereby established with the provisions of this
Act". We agree with the majority judgment that the Respondent has international legal personality, separate
from the legal personality of its Member States. It is therefore not necessary for us to deal with this aspect.
We, however, disagree with the majority judgment that the Respondent could not be cited in the case
before us.
8.1.1 After holding that the United Nations Organization is an international person, the International Court of
Justice, in Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, went on
to say; "What it does mean is that it is a subject of international law and capable of possessing international
rights and duties, and that it has capacity to maintain its rights by bringing international claims".1
It is our view that the right to bring international claims carries with it, as a natural legal consequence, the
capacity to be sued. We point out later that one of the duties imposed upon the Respondent, through the
Charter, is to protect human and peoples' rights; such an obligation would mean nothing if it could not be
enforced against the Respondent.
8.1.2 After establishing the Respondent as a legal entity. Member States went further and conferred certain
powers on it; these include the power to deal with the protection of human rights on the Continent. Article
3(h) of the Act states the following as being one of the Respondent's objectives, namely to: "Promote and
protect human and peoples' rights in accordance with the African Charter on Human and Peoples' Rights
and the relevant human rights instruments".
Furthermore, Article 4 of the Act states: The Union (Respondent) shall function in accordance with the
following principles:
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