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001/11 Femi Falana v. African Union (Separate Opinion of Judge Fatsah Ouguergouz)

AfCHPR Decision

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Separate Opinion of Judge Fatsah Ouguergouz1
Judge5

001/11 Femi Falana v. African Union (Separate Opinion of Judge Fatsah Ouguergouz)

AfCHPR Decision

Preview

Type of Document

Separate Opinion

Keywords

Jurisdiction

Country

AU/AU Organ

Year Decided: Jun 26, 2012

Rights Violated (ACHPR Provisions)

None Indicated

Primary Documents

001_11 Femi Falana v. African Union (Separate Opinion of Judge Fatsah Ouguergouz).pdf
English
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12. 001_11 Femi Falana v. African Union (Separate Opinion of Judge Fatsah Ouguergouz) - PT.pdf
Portuguese
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001/11 Femi Falana v. The African Union - Judgement

AfCHPR Decision

001/11 Femi Falana v. The African Union - Judgement

AfCHPR Decision

Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights

6. At the time of the ratification of this Protocol or any time thereafter, the State shall make adeclaration accepting the competence of the Court to receive cases under article 5 (3) of this Protocol. The Court shall not receive any petition under article 5 (3) involving a State Party which has not made such a declaration.

Treaty

Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights

Article 34 RATIFICATION1. This Protocol shall be open for signature and ratification or accession by any State Party to the Charter.2. The instrument of ratification or accession to the present Protocol shall be deposited with the Secretary-General of the OAU.3. The Protocol shall come into force thirty days after fifteen instruments of ratification or accession have been deposited.4. For any State Party ratifying or acceding subsequently, the present Protocol shall come into force in respect of that State on the date of the deposit of its instrument of ratification or accession.5. The Secretary-General of the OAU shall inform all Member States of the entry into force of the present Protocol.6. At the time of the ratification of this Protocol or any time thereafter, the State shall make adeclaration accepting the competence of the Court to receive cases under article 5 (3) of this Protocol. The Court shall not receive any petition under article 5 (3) involving a State Party which has not made such a declaration.

Treaty

Rules of Court (African Court on Human and People's Rights)

7. The Court shall give reasons for its ruling on the preliminary objection.

Rules of Procedure

Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights

Treaty

01/08 - Michelot Yogogombaye v. Senegal (Separate Opinion - Fatsah Ouguergouz)

AfCHPR Decision

10/11 Efoua Mbozo’o Samuel v. The Pan African Parliament (Separate Opinion - Fatsah Ouguergouz)

AfCHPR Decision

12/11 National Convention of Teachers Trade Union (CONASYSED) v. Gabon (Separate Opinion -Fatsah Ouguergouz)

AfCHPR Decision

02/12 Delta International Investments SA, Mr. AGL De Lange and Mrs. M. De Lange v South Africa (Separate Opinion - Fatsah Ouguergouz)

AfCHPR Decision

04/12 Emmanuel Joseph Uko and Others v South Africa (Separate Opinion - Fatsah Ouguergouz)

AfCHPR Decision

005/12 Amir Adam Timan v. Sudan (Separate Opinion - Fatsah Ouguergouz)

AfCHPR Decision

008/11 Ekollo Alexandre v. Nigeria & Cameroon (Dissenting Opinion - Fatsah Ouguergouz)

AfCHPR Decision

005/11 Daniel Amare & Mulugeta Amare v. Mozambique & Mozambique Airlines

8. As this is an application brought by individuals, and the Republic of Mozambique has not deposited thedeclaration under Article 34 (6) of the Protocol, the Court concludes that manifestly, it does not have thejurisdiction to hear the application.

AfCHPR Decision

12/11 National Convention of Teachers Trade Union (CONASYSED) v. Gabon

11. In view of Articles 5(3) and 34 (6) of the Protocol, it is evident that the Court manifestly lacks jurisdictionto receive the Application submitted by CONASYSED against the Republic of Gabon.12. For these reasons,

AfCHPR Decision

02/12 Delta International Investments SA, Mr. AGL De Lange and Mrs. M. De Lange v South Africa

8. The Court observes that the Republic of South Africa has not made the Declaration under Article 34 (6).9. In view of Articles 5(3) and 34 (6) of the Protocol, it is evident that the Court manifestly lacks jurisdictionto receive the Application submitted by Delta International Investments SA, Mr. AGL De Lange and Mrs. M.De Lange, against the Republic of South Africa.

AfCHPR Decision

04/12 Emmanuel Joseph Uko & Ors v. South Africa

1O. By email dated 12 April, 2012, the Legal Counsel of the African Union Commission informed theRegistrar that the Republic of South Africa has not made the declaration.11. The Court observes that the Republic of South Africa has not made the Declaration under Article 34 (6)of the Protocol.12. ln view of Articles 5 (3) and 34 (6) of the Protocol, it is evident that the Court manifestly lacks jurisdictionto receive the Application submitted by Emmanuel Joseph Uko and Others, against the Republic of SouthAfrica.

AfCHPR Decision

005/12 Amir Adam Timan v. Sudan

8. In view of Articles 5(3) and 34(6) of the Protocol, it is evident that the Court manifestly lacks jurisdictionto receive the Application submitted on behalf of Amir Adam Timan, against the Republic of The Sudan.Holding9. For these reasons,THE COURT,Unanimously:Decides that pursuant to Articles 5(3) and 34(6) of the Protocol, it manifestly lacks jurisdiction to receivethe Application submitted on behalf of Amir Adam Timan, against the Republic of The Sudan, and theApplication is accordingly struck out from the general list of the Court.

AfCHPR Decision

Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights

Treaty

Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights

Article 26 EVIDENCE1. The Court shall hear submissions by all parties and if deemed necessary, hold an enquiry. The States concerned shall assist by providing relevant facilities for the efficient handling of the case. 2. The Court may receive written and oral evidence including expert testimony and shall make its decision on the basis of such evidence

Treaty

Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights

Article 30 EXECUTION OF JUDGMENTThe States Parties to the present Protocol undertake to comply with the judgment in any case to which they are parties within the time stipulated by the Court and to guarantee its execution.Article 31 REPORTThe Court shall submit to each regular session of the Assembly, a report on its work during the previous year. The report shall specify, in particular, the cases in which a State has not complied with the Court’s judgment.

Treaty

Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights

Article 7 SOURCES OF LAWThe Court shall apply the provision of the Charter and any other relevant human rights instruments ratified by the States concerned.

Treaty

Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights

Article 3 JURISDICTION 1. The jurisdiction of the Court shall extend to all cases and disputes submitted to it concerning the interpretation and application of the Charter, this Protocol and any other relevant Human Rights instrument ratified by the States concerned.

Treaty

Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights

Treaty

Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights

Article 5 ACCESS TO THE COURT 1. The following are entitled to submit cases to the Court:a) The Commissionb) The State Party which had lodged a complaint to the Commissionc) The State Party against which the complaint has been lodged at the Commissiond) The State Party whose citizen is a victim of human rights violatione) African Intergovernmental Organizations2. When a State Party has an interest in a case, it may submit a request to the Court to be permitted to join.3. The Court may entitle relevant Non Governmental organizations (NGOs) with observer status before the Commission, and individuals to institute cases directly before it, in accordance with article 34 (6) of this Protocol.

Treaty

Rules of Court (African Court on Human and People's Rights)

Rule 52Preliminary Objections1. Any party served with the application may raise preliminary objections toany part or parts thereof.2. Preliminary objections shall be raised at the latest before the date fixed bythe Court for the filing of the first set of pleadings to be submitted by theparty who intends to raise the objections.3. The submission of preliminary objections shall not cause the proceedingson the substantive case to be suspended unless the Court so decides. In anycase, the Court shall rule on the objections or incorporate its ruling in itsdecision on the substantive case.

Rules of Procedure

Rules of Court (African Court on Human and People's Rights)

3 31Rule 49Recording of HearingsThe proceedings of the hearing shall be recorded and such recordings shallbe conserved in the archives of the Court.Rule 50New EvidenceNo party may file additional evidence after the closure of pleadings except byleave of Court.CHAPTER IV: SPECIFIC PROCEDURESRule 51Interim Measures1. Pursuant to article 27(2) of the Protocol, the Court may, at the request ofa party, the Commission or on its own accord, prescribe to the parties anyinterim measure which it deems necessary to adopt in the interest of theparties or of justice.2. In case of extreme urgency, the President may convene an extraordinarysession of the Court to decide on measures to be taken. He/she may, in thisregard, and by all reliable means, enlist the views of the Members notpresent.3.The Court shall duly notify the parties to the case, the Commission, theAssembly, the Executive Council and the African Union Commission of theaforesaid interim measures.4. In the Annual Report submitted by the Court to the Assembly pursuantto article 31 of the Protocol, the Court shall disclose the interim measures itordered during the period under review. In the event of non-compliance withthese measures by the State

Rules of Procedure

Rules of Court (African Court on Human and People's Rights)

Rules of Procedure

Rules of Court (African Court on Human and People's Rights)

Rules of Procedure

Rules of Court (African Court on Human and People's Rights)

1. Any party served with the application may raise preliminary objections toany part or parts thereof.2. Preliminary objections shall be raised at the latest before the date fixed bythe Court for the filing of the first set of pleadings to be submitted by theparty who intends to raise the objections.3. The submission of preliminary objections shall not cause the proceedingson the substantive case to be suspended unless the Court so decides. In anycase, the Court shall rule on the objections or incorporate its ruling in itsdecision on the substantive case.

Rules of Procedure

Rules of Court (African Court on Human and People's Rights)

Rule 48Verbatim Record of Hearings1. The Registrar shall be responsible for making a verbatim record of eachhearing. The verbatim record shall include the:a) composition of the Court at the hearing;b) list of the persons appearing before the Court;c) text of statements made, questions put and answers given;d) text of any decision delivered by the Court during the hearing.2. The representatives of the parties, and the representatives of theCommission, if applicable, shall receive the verbatim record of theirarguments, statements or evidence, in order that they may, under theresponsibility of the Registrar, make corrections, provided that suchcorrections do not affect the substance of what was said. The Registrar shallfix the time-limits granted for this purpose.3. Once corrected, the verbatim record shall be signed by the Presidentand the Registrar; and shall then constitute a true reflection of theproceedings.

Rules of Procedure

Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights

Treaty

Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights

rticle 5 ACCESS TO THE COURT 1. The following are entitled to submit cases to the Court:a) The Commissionb) The State Party which had lodged a complaint to the Commissionc) The State Party against which the complaint has been lodged at the Commissiond) The State Party whose citizen is a victim of human rights violatione) African Intergovernmental Organizations2. When a State Party has an interest in a case, it may submit a request to the Court to be permitted to join.3. The Court may entitle relevant Non Governmental organizations (NGOs) with observer status before the Commission, and individuals to institute cases directly before it, in accordance with article 34 (6) of this Protocol.

Treaty

Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights

Treaty

Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights

Treaty

African Charter on Human and Peoples' Rights

Article 1The Member States of the Organization of African Unity parties to the present Charter shall recognize the rights, duties and freedoms enshrined in this Chapter and shall undertake to adopt legislative or other measures to give effect to them.Article 2Every individual shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, color, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status.

Treaty

African Charter on Human and Peoples' Rights

Article 26States parties to the present Charter shall have the duty to guarantee the independence of the Courts and shall allow the establishment and improvement of appropriate national institutions entrusted with the promotion and protection of the rights and freedoms guaranteed by the present Charter.

Treaty

African Charter on Human and Peoples' Rights

Article 131.Every citizen shall have the right to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with the provisions of the law. 2.Every citizen shall have the right of equal access to the public service of his country. 3. Every individual shall have the right of access to public property and services in strict equality of all persons before the law.

Treaty

African Charter on Human and Peoples' Rights

Article 71.Every individual shall have the right to have his cause heard. This comprises: (a) the right to an appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force; (b) the right to be presumed innocent until proved guilty by a competent court or tribunal; (c) the right to defense, including the right to be defended by counsel of his choice; (d) the right to be tried within a reasonable time by an impartial court or tribunal. 2.No one may be condemned for an act or omission which did not constitute a legally punishable offence at the time it was committed. No penalty may be inflicted for an offence for which no provision was made at the time it was committed. Punishment is personal and can be imposed only on the offender.

Treaty

African Charter on Human and Peoples' Rights

Article 66Special protocols or agreements may, if necessary, supplement the provisions of the present Charter.

Treaty

Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights

Article 4 ADVISORY OPINIONS1. 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. 2. The Court shall give reasons for its advisory opinions provided that every judge shall be entitled to deliver a separate of dissenting decision

Treaty

Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights

Article 35 AMENDMENTS1. The present Protocol may be amended if a State Party to the Protocol makes a written request to that effect to the Secretary-General of the OAU. The Assembly may adopt, by simple majority, the draft amendment after all the State Parties to the present Protocol have been duly informed of it and the Court has given its opinion on the amendment.2. The Courtshall also be entitled to propose such amendments to the present Protocol as it may deem necessary, through the Secretary-General of the OAU.

Treaty

Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights

Treaty

Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights

Treaty

Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights

Treaty

Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights

Treaty

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- Rules of Procedure7
Cases Referenced14
- AfCHPR Decision14

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