SERAP Nigeria contributing to the development of the jurisprudence of the African court

Featured July 14, 2017

JURISDICTION – PERSONAL  JURISDICTION – Whether SERAP is “an African Organization recognized by the AU” – The Notion of an African Organization – the term  covers both Inter-governmental and Non-governmental organizations – and in relation to NGOs – an organization is considered African if – they are registered in an African State – has structures at the sub-regional, regional or continental level – or undertakes its activities beyond the territory where it is registered – as well as any organization in the Diaspora recognized as such by the African Union – Request For Advisory Opinion By The Socio·Economic Rights And Accountability Project (SERAP) [2012-2017] 1 RCACtHPR (PART 2) 83

REASON FOR THE DECISION

“The Court notes that neither the Constitutive Act of the African Union nor the Charter nor the Protocol define the term “African Organisation.”

On the other hand, in the document titled the Criteria for granting observer status and for a system of accreditation within the AU, the African Union defines an organisation as “a regional integration or international organisation, including sub-regional, regional or inter-African organisation that are not recognised as Regional Economic Communities”. It defines an NGO as “an organisation at the sub-regional, regional or inter-African levels, as well as those in the Diaspora as may be defined by the Executive Council”. This definition is restated in the Protocol on the Statute of the African Court of Justice and Human Rights which defines African Non-Governmental Organization as “Non-Governmental Organizations at the sub-regional, regional or inter-African levels as well as those in the Diaspora as may be defined by the Executive Council”.

The Court is observes (sic) from the foregoing paragraph that there is still no definition of ‘African Organization’, but notes however that the term organization is defined.

The Court is of the view that the use of the term ‘Organization’ used in the abovementioned instruments and the expression ‘African organization’ in Article 4 of the Protocol covers both Inter-governmental and Non-governmental organizations.

The Court considers that had the drafters of the Protocol intended to limit the phrase ‘African Organization’, as used in Article 4 of the Protocol, only to African Inter-governmental Organizations, they would have specifically done so, as they did in Article 5 thereof relating to contentious matters. The Court is of the view that this was not an omission, but a deliberate formulation, aimed at giving wide access to the Court by ‘African organizations’; which interpretation is in keeping with the letter and spirit of Article 4, as well as the object and purpose of the African Charter.

In the light of the above, the Court is of the opinion that an organization can be considered ‘African’, with regards to NGOs, which are relevant in the present Request, if they are registered in an African State, has structures at the sub-regional, regional or continental level, or undertakes its activities beyond the territory where it is registered, as well as any organization in the Diaspora recognized as such by the African Union”. (Paragraphs 43-48 of the Advisory Opinion)

JURISDICTION- PERSONAL JURISDICTION UNDER ARTICLE 4 OF THE PROTOCOL – Whether SERAP is “an African Organization recognized by the AU”- SERAP meets with the description of an African Organization within the meaning of Article 4 of the Protocol – as it is headquartered in an African Country – and operates not only in Nigeria – but also within the West Africa region and the continent as a whole – Request For Advisory Opinion By The Socio·Economic Rights And Accountability Project (SERAP) [2012-2017] 1 RCACtHPR (PART 2) 83

REASON FOR THE OPINION

“Applying the above definition of an African Organization to the instant matter, the Court notes that SERAP is an organization headquartered in an African country, and operating within that country, as well as at the sub-regional and continental levels. Article 2(a) of its Statute indicates that the objectives of SERAP are “to promote, protect and ensure respect for economic, social and cultural rights in Nigeria in accordance with the Nigerian Constitution, the African Charter on Human and Peoples’ Rights, the International Covenant on Economic, Social and Cultural Rights, the Universal Declaration of Human Rights and other similar instruments”. Article 3 of the same Statute describes the organization’s working methods, which include, inter alia, “collaborate with the local and international organizations and agencies involved in the promotion and protection of human rights and the rule of law, and in particular, encourage a closely-knit and effective network of African human rights advocates and organizations”.

In the exercise of its mandate, SERAP has brought cases, petitions and requests for advisory opinion before the ECOWAS Community Court of Justice, the African Commission on Human and Peoples’ Rights and the African Court on Human and Peoples’ Rights, against a number of African countries, including, Nigeria, The Gambia and Libya.

It follows from the foregoing that SERAP 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.” (Paragraphs 49-51 of the Advisory Opinion)

JURISDICTION- PERSONAL JURISDICTION UNDER ARTICLE 4 OF THE PROTOCOL – Whether SERAP is “an African Organization recognized by the AU”- since SERAP does not have observer status before or a Memorandum of Understanding with the African Union –  it is not recognised by the African Union –  and therefore it is not entitled to bring a request for advisory opinion before the African Court – Request For Advisory Opinion By The Socio·Economic Rights And Accountability Project (SERAP) [2012-2017] 1 RCACtHPR (PART 2) 83

REASONS FOR THE OPINION

It follows from the aforesaid distinction between the two systems that NGOs with observer status before the Commission do not automatically have observer status before the African Union and vice versa. The two statuses are therefore not interchangeable and there is no system of equivalence between the two.

Consequently, it is clear that the authors of the Protocol intended that requests for Advisory Opinion from NGOs be limited to those with observer status before or a Memorandum of Understanding with the African Union. 

Accordingly, since SERAP does not have observer status before or a Memorandum of Understanding with the African Union, as referred to in paragraph 61 above, it is not recognised by the latter, and therefore it is not entitled to bring a request for advisory opinion before this Court. (Paragraphs 63- 65 of the Advisory Opinion).

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