Justice John Tsoho of the Federal High Court in Abuja has dismissed a suit by human rights lawyer, Mr. Femi Falana (SAN), praying for an order directing the Federal Government to accept the competence of the African Court on Human and Peoples Rights to enable Nigerians to institute cases in the continental court.

The judge held, in his judgment, which he delivered on Tuesday that the Federal Government could not be compelled to make such a declaration under any law.

Falana had, in his suit marked, FHC/ABJ/CS/356/2019, noted that Nigeria was among the African nations whose citizens could not access the court because their countries had yet to make the needed declaration accepting the continental court’s competence to receive cases from the country.

Nigeria, which currently has a representative on the bench of the African Court, is among the 30 member states of the African Union that have ratified the protocol establishing the court which is based in Arusha, Tanzania.

But Article 34(6) of the Protocol for the establishment of the African Court on Human and Peoples Rights requires every member of the African Union to make a declaration accepting the competence of the African Court to receive cases from Non-Governmental Organisations and individuals in the countries.

Only nine member states, namely Algeria, Benin, Burkina Faso, Cote D’voire, Ghana, Gambia, Mali, Malawi, and Tanzania, have made the declaration recognising the competence of the court.

The Office of the Attorney General of the Federation, the sole defendant in the suit, had opposed the suit.

In his judgment on Tuesday, Justice Tsoho held that the Federal High Court lacked the requisite jurisdiction to grant the prayers sought by the plaintiff.

The judge held that the law establishing the African Court did not make provisions for how member states could make the needed declaration.

He added that the provisions did also not stipulate that a state could be compelled.

Justice Tsoho noted that the use of the word, “optional”, in the law establishing the court, gave member states the discretion to decide whether or not they should make the declaration.

Justice Tsoho said, since the charter itself did not provide any mechanism for compelling members states to declare acceptance of the competence of the African Court, it would be wrong to grant the applicant’s prayer, to compel the respondent to make the declaration.

The judge noted that all member states of the African Union had existing judicial systems, therefore there was no basis for the fear expressed by the applicant that Nigerians in the Diaspora would not be able to seek redress where their rights were violated.

Dissatisfied with Nigerians’ inability to access the continental court, Falana, through his lawyer, Mrs Funmi Falana, filed his suit before the Federal High Court in Abuja on 3, 2019, seeking among others, “an order directing the Federal Government to make a declaration accepting the competence of the African Court on Human and Peoples Rights forthwith.”

He also sought a declaration that the failure or refusal of the Federal Government “violates the applicant’s (Falana’s) right to fair hearing guaranteed by Section 36 of the 1999 Constitution of the Federal Republic of Nigeria as amended and Article 7(1) of the African Charter on Human and Peoples Right (Cap A9) Laws of the Federation 2004.”

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