All Rise in the People’s Court: Matters of Jurisdiction

Written by Thuleleni Msomi, Fourth-Year Student, University of South Africa, South Africa.

Jurisdiction and Access to the African Court on Human and Peoples’ Rights

After consultations by members of States, the Assembly—made up of heads of States and governments—selects the Chairperson of the African Union (AU). Mr. Aliyu Suleiman (applicant), a Nigerian activist, alleges that the nomination of the AU Chairperson candidates violates the rights of African citizens.

The applicant brought before the African Court on Human and Peoples’ Rights (African Court) an application against the African Union (AU) and the African Union Commission (AUC) under Article 3 of the Protocol to the African Charter on Human and Peoples' Rights (Protocol), which allows a “State Party whose citizen is a victim of human rights violations” to submit a case.

Article 3 of the Protocol

Article 3 of the Protocol outlines who can submit cases to the African Court. It also addresses the participation of State Parties, Non-Governmental Organisations (NGOs), and individuals, but does not include the AU or AUC as parties against whom a case can be brought.

Case 1: Aliyu Mohammed v. The African Union and The African Union Commission

In this case, the African Court dismissed the application on the grounds that the AU and the AUC are not State Parties to the Protocol establishing the African Court.

The application’s validity was questioned based on:

• The rules of State party ratification, and

• The declaration of consent under the Protocol.

The African Court examined whether it had personal jurisdiction over non-state entities and determined that it lacked jurisdiction to hear the matter. Consequently, the case was dismissed because the respondents could not be sued before the African Court.

For an entity to be subject to the Court’s personal jurisdiction, it must:

• Be a State Party, or

• Be one of the entities specifically mentioned in the Protocol as having access to the Court (such as the Commission, African Intergovernmental Organisations under certain circumstances, or NGOs and individuals under specific conditions).

The respondents in Aliyu Mohammed v. The African Union and The African Union Commission were non-State international organisations that were not eligible to ratify the Protocol nor deposit a declaration under Article 34(6) of the Protocol, which would grant them access to the Court.

Case 2: Femi Falana v. African Union

In this case, Mr. Femi Falana, a Nigerian human rights lawyer, requested the Court to find Article 34(6) inconsistent with Articles 1, 2, 7, 13, 26, and 66 of the Protocol.

He alleged that he had been denied access to the African Court because the Federal Republic of Nigeria had failed or refused to deposit the declaration required under Article 34(6) of the Protocol on the establishment of the African Court.

According to Mr. Falana, this violated his rights to:

• Freedom from discrimination,

• Fair hearing,

• Equal treatment, and

• The right to be heard.

He therefore requested the African Court to:

1. Declare that Article 34(6) of the Protocol is illegal, null, and void;

2. Declare that he is entitled to file human rights complaints before the African Court by virtue of Article 7 of the African Charter; and

3. Annul Article 34(6) of the Protocol.

The African Union opposed the application, arguing that:

• The Court lacked jurisdiction over the respondent, and

• The applicant lacked locus standi, since the African Union was not a party to the Protocol and therefore could not be sued before the African Court.

Case 3: Emmanuel Joseph Uko v. The Republic of South Africa

Mr. Emmanuel Joseph Uko filed an application before the African Court on his own behalf and on behalf of his family members residing in South Africa. He alleged violations of several international instruments, including:

• The African Charter on the Rights and Welfare of the Child,

• The African Charter on Human and Peoples’ Rights, and

• The International Covenant on Civil and Political Rights.

Like in the previous cases, the African Court did not rule on the merits of the alleged human rights violations. The case instead focused on a procedural and jurisdictional issue.

As an individual, Mr. Uko could institute cases directly before the African Court only if the concerned State Party had made a declaration accepting the Court’s competence, as required by Article 34(6) of the Protocol.

The application was struck out because the Republic of South Africa had not made this required declaration. Without such a declaration, the Court decided that it lacked jurisdiction to receive the application submitted by Mr. Uko and others against South Africa.

Conclusion

The African Court’s decisions highlight the complexities of jurisdiction and access to the Court. They demonstrate that the Court’s jurisdiction is limited to specific entities and that non-state entities cannot be subject to its jurisdiction.

These cases underscore the importance of understanding the Protocol’s provisions and the Court’s jurisdictional limits to effectively navigate human rights litigation in Africa.