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.
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“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”
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