Atemnkeng v African Union (Application No. 014-2011)

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

The African Court on Human and Peoples' Rights held by majority that it lacked jurisdiction to hear an application brought by an individual against the African Union. The Court found that under Articles 5(3) and 34(6) of the Protocol read together, direct seizure by an individual can only be against a State Party which has made a declaration authorizing such seizure. Since the African Union is not a State Party to the Protocol and the application was not directed against a State that had made the required declaration, the application fell outside the Court's jurisdiction.

Outcome

Application dismissed for lack of jurisdiction

Facts

Atabong Denis Atemnkeng, a Cameroonian national and staff member of the African Union Commission, filed an application on 18 October 2011 seeking a declaration that Article 34(6) of the Protocol establishing the African Court on Human and Peoples' Rights is inconsistent with the Constitutive Act of the African Union and the African Charter on Human and Peoples' Rights. The Applicant argued that Article 34(6), which requires States to make a declaration accepting the Court's competence to receive cases from individuals, prevents African citizens from accessing the Court and gives human rights violators power to prevent victims from obtaining justice. The Applicant contended that his application was not directed against any Member State but against the African Union itself, and therefore Article 34(6) should not apply. The African Union raised preliminary objections on admissibility and jurisdiction grounds.

Issues

1. Whether Article 34(6) of the Protocol establishing the African Court on Human and Peoples' Rights is inconsistent with the Constitutive Act of the African Union and the African Charter on Human and Peoples' Rights and should be declared null and void.
2. Whether the Court has jurisdiction to hear an application brought by an individual against the African Union.
3. Whether the Applicant has capacity to seize the Court as a national of a State which has not made the declaration under Article 34(6) of the Protocol.

Orders

• Declared that, pursuant to Articles 5(3) and 34(6) of the Protocol read together, the Court does not have jurisdiction to hear and determine the Application brought by Atabong Denis Atemnkeng against the African Union.
• Decided that each party shall bear its own costs.

Rules and key headnotes

Legislation cited (22)

• Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights Article 3(2)
• Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights Article 5(3)
• Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights Article 22
• Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights Article 28(7)
• Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights Article 34(6)
• Constitutive Act of the African Union
• African Charter on Human and Peoples' Rights Article 2
• African Charter on Human and Peoples' Rights Article 3
• African Charter on Human and Peoples' Rights Article 7
• Vienna Convention on the Law of Treaties Article 34
• Rules of Court Rule 5(1)
• Rules of Court Rule 8(2)
• Rules of Court Rule 26(2)
• Rules of Court Rule 30
• Rules of Court Rule 34(3)
• Rules of Court Rule 35(2)
• Rules of Court Rule 35(3)
• Rules of Court Rule 38
• Rules of Court Rule 39(1)
• Rules of Court Rule 50
• Rules of Court Rule 52(7)
• Rules of Court Rule 60(5)

Cases cited (2)

• Femi Falana v African Union (Application No. 001/2011)
• Ifoua Mbozo'o Samuel v Pan African Parliament (2011)

The original judgment as reported. Read the original PDF before relying on any passage.