Mr Falana's case against the AU concerns the validity of Article 34 (6) of the Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights in Arusha.
The applicant filed his application with the African Court in February 2011, alleging that he has made several attempts to get the Federal Republic of Nigeria to deposit the declaration required under Article 34 (6) of the Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights to no avail.
He alleges further that he has been denied access to the African Court because of the failure or refusal by Nigerian authorities to make the declaration allowing Nigerian individuals and Non-Governmental Organizations (NGOs) to bring their cases directly before the African Court.
He submits that since his efforts to have Nigeria make the declaration have failed, he decided to file an application against the African Union, as a representative of its Member States.
In his application, Femi Falana asks the Court to find Article 34(6) of the Protocol establishing the Court illegal, null and void as it is inconsistent with Articles 1, 2, 7, 13, 26 and 66 of the African Charter on Human and Peoples' Rights.
According to him, the requirement for a state to make a declaration, in addition to the ratification of the protocol establishing the Court, to allow its citizens and NGOs to directly institute cases before the Court is a violation of human rights.
The respondent, the AU, disputes the allegations of the applicant and maintains that the AU is neither a party to the African Charter on Human and Peoples' Rights, nor to the protocol establishing the Court.
The respondent further submits that the AU is not the legal representative of its members which are sovereign states. For that reason, the respondent submits that the court has no competence to decide the matter and argues that the application is inadmissible because the respondent is not a party to the African Charter and (or) the protocol establishing the court.
The respondent adds that the applicant has not even exhausted local remedies before bringing his case before the African Court. The respondent also maintains that the obligations of State Parties to the African Charter and the protocol establishing the Court cannot be inferred on the AU and are only applicable to State Parties thereto.
The application was lodged with the court on 20 February, 2011 and communicated to the respondent and to the AU Member States on 28 March, 2011.
The court examined both the application and respondents' response and the applicant's reply in September 2011 and decided that written submissions on the matter were closed. The parties were called for a public hearing where they presented their oral arguments on 22nd and 23rd March, 2012.
In this case, the applicant represented himself and the respondent was represented by Advocate Bahame Nyanduga assisted by officers from the office of the legal counsel of the African Union Commission. The judgment will be delivered in a public hearing at the court's premises.