The case of the Centre for Human Rights of the University of Pretoria and the Coalition of African Lesbians’ has been thrown out of the African Court for Human and People’s Rights.
The African Court, on September 28, unanimously ruled that it is not able to give the Advisory Opinion which was requested of it by the two non-governmental organizations.
The African Continental Court explained that although the Applicants are African organizations within the meaning of Article 4(1) of the Protocol, they lack the second essential condition required by this provision as a basis for the Court’s jurisdiction, namely, to be “recognized by the African Union.”
In a ruling made available to the Communication for Development and Advocacy Consult (CDA Consult) based in Accra indicated that Article 4 (1) of the Protocol, which lists the four categories of entities entitled to apply to the Court for an Advisory Opinion, provides as follows: “(at) the request of a Member State of the African Union, (the AU), any of its organs, or any African organization recognized by the AU, the African Court may provide an opinion on any legal matter relating to the Charter or any other relevant human rights instruments…”
The African Continental Court explained that the fact that the two NGOs which filed the request do not fall within the first three categories is not contested.
The African Court noted that the first question which arises is whether these NGOs are of the fourth category, that is, whether they are “African organizations” within the meaning of Article 4(1) of the Protocol.
On this issue, the African Court said, in its Advisory Opinion in Socio-Economic Rights and Accountability Project (SERAP), established that the term “organization” used in Article 4 (1) of the Protocol covers both non-governmental organizations and inter-governmental organizations.
As regards the appellation “African”, the African Continental Court established that an organization may be considered as “African,” if it is registered in an African country and has branches at the sub-regional, regional or continental levels and if it carries out activities beyond the country where it is registered.
The African Court also notes that the Centre and the Coalition are both registered in South Africa and with their Observer Status before the Commission they are entitled to carry out their activities beyond the countries where they are registered.
It however concluded that they are “African Organizations” in terms of Article 4 (1) of the Protocol.
The second question that follows is whether these organizations are recognized by the African Union.
The African Court notes that the Centre and the Coalition have relied on their Observer Status before the Commission to contend that they are recognized by the African Union.
In this respect, the African Continental Court explained that Observer Status before any African Union organ does not amount to recognition by the African Union.
It has thus established that only the NGOs recognized by the African Union itself are covered by Article 4 (1) of the Protocol.
The African Court has further established that recognition of NGOs by the African Union is through the granting of Observer Status or the signing of a Memorandum of Understanding and/or Cooperation between the African Union and those NGOs.
In the instant case, the Centre and the Coalition have not claimed and have not provided proof as to their Observer Status before the African Union or that they have signed any Memorandum of Understanding with the Union