Separate Opinion of Judge Rafâa Ben Achour 1. I am by and large in agreement with the reasoning and justifications developed by the Court in ruling that the Applicant for Advisory Opinion (SERAP) “even if it operates not only in Nigeria, but also within the West Africa region and the continent as a whole, and thus meets the description of an African organization within the meaning of Article 4 of the Protocol” (§51); but that SERAP does not have observer status before the African Union and having not signed Memorandum of Understanding with the African Union…it is not recognised by the latter, and therefore it is not entitled to bring a request for Advisory Opinion before this Court” (§65). 2. The Court had no choice and could not have done otherwise. Its hands were ‘tied' by the explicit terms of Article 4 (1) of its Protocol1 and by the restrictive practice of the Union in granting observer status to NGOs. 3. It would have been desirable that referrals to the Court in advisory matters should be more open and that the conditions imposed on NGOs should be less rigid. The Court had expressed a similar wish in its Advisory Opinion of 5 December 2014 (African Committee of Experts on the Rights and Welfare of the Child). In paragraph 94 of that Opinion, the Court further “notes that the action by the policy organs (insertion of the Committee of Experts among the bodies that could refer cases to the Court in the 2008 Protocol merging the African Court on Human and Peoples’ Rights and the Court of Justice of the AU) confirms the view of the Court that it is highly desirable that the Committee should have access to the Court”. In the same vein, the Court affirms in point 3 (iii) of the operative section of its Opinion that "the Court is of the view that it is highly desirable that the Committee is given direct access to the Court under Article 5 (1) of the Protocol." 4. However, my agreement with the reasons given by the Court in the SERAP Opinion does not amount to my agreement with the operative section of the Opinion. 5. In my opinion, the Court gave its (negative) Opinion on the first of the two questions posed by SERAP in its request for an opinion, namely, “whether SERAP is an African organization recognized by the AU”. 6. It is true, as the Court quite rightly notes, that this question boils down to examination of the Court's jurisdiction to give an Advisory Opinion. In paragraph 39, the Court affirms that “consideration of Its jurisdiction will lead the Court to respond to the first question raised by SERAP relating to its capacity to seize the Court with a request for Advisory Opinion”. 7. Logically, the operative section of the Opinion should have been worded differently from a rigid 'declaration' of lack of jurisdiction ratione personne. 1 “At the request of a Member State of the OAU, the OAU, any of its organs, or any African organization recognized by the OAU, the Court may provide an opinion on any legal matter relating to the Charter or any other relevant human rights instruments, provided that the subject matter of the opinion is not related to a matter being examined by the Commission” 1|Page

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