Travesty Of ECOWAS Court’s Verdicts Raises Concern

BY BOLA OLAJUWON




ABUJA, NIGERIA (THE NATION)--The ECOWAS Court of Justice marked its 20 years of existence with remarkable rulings, verdicts and opinions to show. But, critical stakeholders believe flouting of the community court’s judgments by member-states will not give succours to those in need of justice, ASSISTANT EDITOR BOLA OLAJUWON reports.

The ECOWAS Court of Justice few days ago rolled out the drum to mark its 20 years of existence. The organ of the Economic Community of West African States – a regional integration community of 15 member states in Western Africa – was created pursuant to the provisions of Articles 6 and 15 of the Revised Treaty of the regional organisation.

The court was created after the adoption of the Protocol on the Community Court of Justice in 1991, about 16 years after the ECOWAS itself was formed. The ECOWAS Revised Treaty of 1993 established the Court of Justice as an institution of the regional grouping.

The expansion of the court’s competences from just a mere community court to civil service tribunal, court of human rights and court of arbitration, gave the court an almost universal scope of intervention in many areas with significant increase in the number of cases handled in recent years. It is also seen as the last resort for those who saw national judicial templates as inept to give them justice.

Member-states shunning ECOWAS Community Court’s rulings

For the people of West Africa with a population of 416,631,763 – based on the latest United Nations estimates – obtaining justice in their individual country is like camel passing through the proverbial eye of the needle.

Still, with the setting up of the ECOWAS Court, the hope of some of those plaintiffs had been lost to inability of many member-states to abide by the court’s rulings.

For instance, the Court of Justice declared the arrest and continued detention of the immediate past former National Security Adviser, Col. Sambo Dasuki (retd), as unlawful, arbitrary and a violation of his right to liberty.

The court ordered that the former NSA be released from the custody of the Department of State Services, whose operatives re-arrested him shortly after he was released from Kuje Prison, Abuja on bail on December 29, 2015.

Dasuki, who was arrested for alleged economic crimes and other offences, was later granted bail by all three courts where he is currently facing charges relating to criminal diversion of funds meant for procurement of arms for fighting Boko Haram terrorists in the North-East.

But, in a ruling on the fundamental human rights enforcement suit filed by Dasuki, the ECOWAS court said it was wrong for the Federal Government to continue to detain him over undisclosed offences after he had been granted bail by different courts, where he was being prosecuted.

The court, in a unanimous judgment of a three-man panel, read by Justice Chijioke Nwoke, also awarded N15 million damages against the Federal Government.

But, despite the Nigerian courts and ECOWAS Court rulings, he remained in the custody of the DSS since he was re-arrested at Kuje prison, before he was finally released after meeting his bail conditions.

Also in 2016, the ECOWAS Court ordered the release of leader of the Islamic Movement in Nigeria (IMN), Sheikh Ibraheem el- Zakzaky and his wife, Zeenah. It described their detention as unlawful and arbitrary. But the government did not obey the order.

The Islamic cleric was arrested in December 2015, following a clash between his followers and the Nigeria Army in Zaria, Kaduna State.

Scores of people, mostly his followers were reportedly killed and buried in a mass grave in the Mando area of Kaduna metropolis.

On July 28, 2021, a Kaduna State High Court freed El-Zakzaky and his wife.

Just like Dasuki’s and El-Zakzaky’s cases, the Nigerian government refused to enforce ECOWAS’ judgments for the provision of free and basic education for Nigerian children as enshrined under chapter two of the Nigerian Constitution, in the case between Socio-Economic Rights and Accountability Project (SERAP) v. Federal Republic of Nigeria & Anor.

The community court on Friday, October 22, 2021, also ordered the Government of Cote d’Ivoire to pay 1,250,000,000 CFA Francs as compensation to Mr. Oumar Diawara, a Congolese resident of Abidjan (the applicant), for the violation of his right to a fair hearing and right to property. A symbolic one Franc was also awarded to him for the moral prejudice he suffered from how the case against him at the domestic court was handled.

In the judgment, which was delivered by Hon. Justice Dupe Atoki, the judge rapporteur in the suit, the court also ordered the Court’s Registry to assess the litigation costs in favour of the applicant.

However, till today, nothing has been heard about the implementation of the court’s decision.

In another case, the ECOWAS Court ordered the Republic of Niger to pay 7,564,250 CFA francs as recoverable costs to the heirs of late General Ibrahim Mainassara Bare, who ruled the country between January 1996 and April 1999, when he was assassinated while boarding an aircraft.

Justice Dupe Atoki, the judge rapporteur who read the order, said the court, having delivered an earlier judgment, had jurisdiction to hear the matter concerning recoverable costs in relation to the court’s judgment No ECW/CCJ/JUD/23/15 delivered on October 23, 2015.

The application, ECW/CCJ/APP/25/13/COSTS, filed on February 4, 2020, by Mr. Chaibou Abdourahaman, lawyer to the 17 heirs of the late General Bare, asked the court to review its judgment No ECW/CCJ/APP/23/15 based on an alleged omission by the court to specify an amount as recoverable costs to be awarded for the proceeding.

Abdourahaman told the court that part of the judgment reads: “The Republic of Niger shall bear the costs”, without specifying an amount, which resulted in the presentation of their incurred expenses to the court, seeking its order in this regard.

Still, the Niger Republic has not implemented the court’s decision.

Following the cold attitude of the ECOWAS member-states, human rights lawyer Femi Falana called on President Muhammadu Buhari and other leaders to obey court orders in the interest of political stability and justice.

He said the president should also comply with a court order compelling the Federal Government to release the details of stolen assets recovered so far.

“Buhari and ECOWAS leaders should comply with judgments and orders of municipal courts and regional tribunals in the interest of public accountability and political stability,” Falana said.

Lack of national authorities to implement rulings

Despite its achievements in the last six years, only six countries of the 15 member states met the pre-requisite for obeying the court’s rulings. All countries ought to have set up national authorities to implement its rulings.

The court’s president, Justice Edward Amoako Asante (Ghana), listed Guinea, Nigeria, Mali, Burkina Faso, Togo and Ghana, as the six countries that had set up a competent authority to implement the court rulings as stipulated in the protocol. But still, Nigeria refused to implement most of the cases adjudicated upon by the court.

The other member-countries yet to set up such authority include: Benin, Cape Verde, Côte d’Ivoire, The Gambia, Guinea Bissau, Liberia, Niger, Senegal and Sierra Leone.

The poor rate of compliance with the court’s judgments, currently standing at about 50 per cent, is of grave concern to the court, Justice Asante said.

“We regret that only six member states have appointed the competent national authorities for the enforcement of judgments of the court in their respective domains.

“These are the Republic of Guinea, Nigeria, Mali, Burkina Faso, Togo and Ghana. We will continue to appeal for the remaining members to do the needful,” he said.

But, the Speaker of the ECOWAS Parliament, Dr. Sidie Tunis, called on presidents and leaders of West Africa states to ensure obedience to the community court’s ruling.

Tunis said the attitude of selective adherence to the ruling of the court was also diminishing its reputation.

Lawyers to African govts: obey courts’ decisions

Lawyers from across Africa have urged governments of countries in the continent to learn to give effect to decisions of continental and sub-regional courts and tribunals as a way of bolstering democracy and rule of law in the continent.

The lawyers, under the aegis of the Pan African Lawyers Union (PALU) and other stakeholders deplored the growing practice where countries in the continent treat decisions of African international courts and tribunals

Among those who appealed to ECOWAS leaders are Vice President of the ECOWAS Court, Justice Gberi-Be Ouattara; Boniface Ogoti of the East African Court of Justice; Meredith Lwanga of the African Court on Human and Peoples’ Rights; and Falana (SAN).

Others included Donald Deya of PALU, Moussa Coulibaly, President of the West African Bar Association (WABA); Archilleus Romward of the East Africa Law Society; Deborah Nyokabi Mburu of the Network of African Human Rights Institutions (NANHRI); Osai Ojigho of Amnesty International (AI); Simitie Lawvalry of the Human Rights Commission of Sierra Leone, and Anne Mary Okutoyi of the Kenya Nation Commission of Human Rights.

Justice Ouattara, who expressed discomfort with some recent policy decisions of the governments of ECOWAS states in relation to the court, said it was becoming difficult for the court to meet its obligations.

He noted that, aside that most member states were reluctant to implement the court’s decisions, they have decided to reduce the number of its judges and their tenure despite the growing workload of the court.

Justice Ouattara noted that before now, the court had seven judges, who were entitled to a renewable term of five years, but now, the number has been reduced to five, with their tenure limited to four years, which is no longer renewable.

He argued that the relevance of a court lies in the implementation of and respect for its decisions, noting that no matter the quality of a court’s decision, if not implemented, it becomes useless.

Ogoti of the East African Court said his court is experiencing similar challenges as those identified by the ECOWAS Court, particularly in areas of implementation of its decisions and its capacity to monitor compliance.

“Currently, there are no means of monitoring enforcement/implementation of the court’s decisions. Whether judgments are enforced or not, we still depend on litigants to report back to us,” he said.

Lwanga of the African Court noted that her court’s still suffer from low patronage owing, partly to the reluctance of some African states to make the necessary commitment to allow their citizens access the court as well as insufficient information about the court’s operations.

Falana said there was need for sustained advocacy and engagements on the part of all stakeholders to ensure that African states and leaders realise the need to obey and respect the decisions of the courts.

Commendations and achievements

But, looking at the court in the last 20 years, Justice Asante described it as a pacesetter for other regional courts, particularly those in Africa. Asante asserted that although young, the court had through its jurisprudence set examples for other courts. He noted that the celebration “provides an opportunity to examine various dimensions of the young court, which has, through its enviable jurisprudence, become an exemplar among regional courts, particularly in Africa”.

According to Asante, the court also acts as an Arbitration tribunal with key role in the integration process of the community and as the guardian of the community law and protector of human rights.

“It is significant to note that the human rights mandate of the court has become the dominant aspect of its judicial functions. We are proud to note that due to its bold decisions on human rights complaints, the international community has recognised the evolving ECOWAS human rights regime.

“The unique feature of this human rights regime is that there is no requirement for the exhaustion of local remedies. Community citizens, therefore, have the option of lodging complaints for human rights violations before their national courts or the ECOWAS Court of Justice.

“With all humility, the ECOWAS Court of Justice is a source of pride for our community,” he said.

He thanked all past and serving judges of the court, who had contributed to its impressive judicial record.

ECOWAS Commission President Mr. Jean-Claude Brou, while looking at the court’s journey so far, asserted that the ECOWAS had in 2005 amended its protocol to strengthen the community court and made strong provisions for the execution of its judgments, to give citizens access to justice.

“The Court of Justice thus evolved into a major instrument of regional integration. This community’s organ is now better known to the citizens of the region.

“The expansion of its competences from Community Court to Civil Service Tribunal, Court of Human Rights and Court of Arbitration, gives it an almost universal scope of intervention in many areas, as shown by the significant increase in the number of cases handled in recent years,” he said.

The president noted that the protection of human rights remained particularly fundamental, along with the promotion of the rule of law among litigants, especially women and youth.

In spite of challenges confronting it, the court had registered 561 initiating applications and delivered 130 rulings and 301 judgments. It also registered 38 applications for revision of judgments from which it delivered 24 decisions. It has also given five advisory opinions. The court has held a total of 1,226 court sessions. It currently has 166 cases pending before it.

Going forward

Many of the cases before the court, bordering on human rights abuses in ECOWAS member-states, each carry the burden of exigency, which only five justices cannot meet in record time.

The court president insists the reduction of judges from seven as provided in the initial protocol to five in 2018 is of grave concern and has adverse effects. He lamented that despite the challenges, the cases yet to be heard continue to grow “astronomically”.

“In the light of the increasing caseload, it is obvious that a court composed of only five members cannot cope. It is also difficult to form more than one chamber in the court, since a chamber requires a minimum of three judges,” he said.

Asante also proposed a review of the tenure of justices from the four years non-renewable to the initial five years renewable for another term of five years. Falana, SAN, while corroborating Asante’s position, also lamented that the number of judges is too small, calling for it to be increased to 15.

The human rights lawyer called on the court to always make itself available to community’s citizens, especially in states that had been taken over by the military through coups.

He stressed that the ECOWAS, while suspending such countries, should give room for its citizens to seek redress on human rights violations, adding that ECOWAS should also seek to prevent coups by calling erring presidents to order.

“I suggest that the court must allow community citizens in countries where there is coup to assess the court. The suspension of those two countries from the ECOWAS should not prevent victims of human rights abuse from accessing the court,” he stressed.

Brou said the ECOWAS Court should help to promote good governance, rule of law and fundamental freedoms in West Africa.

He said it was important for the court to ensure access to fair, transparent and credible social justice in the region. These, he said, were shared universal values that would contribute to the development of the region and promote the culture of peace, consistent with the 2063 agenda of the African Union.

As part of its function, United Nations High Commission for Refugees (UNHCR) urged the ECOWAS Court of Justice to save 5.5 million possible displaced persons in West Africa.

Regional Director of UNHCR West & Central Africa, Ms. Millicent Mutuli, said the court, through its advocacy, held the key to curbing the rising spate of displacement and statelessness in the sub-region and protecting victims’ rights. Mutuli said the court also had a great responsibility in ensuring the rights of displaced persons were protected.

However, Falana advocated the setting up of an appellate division of the ECOWAS Court as a solution for flagrant disregard to court rulings by member states. But, a Justice of the court, Dupe Atoki, countered his position, saying that an appeal court is no solution to the impunity by member states and lack of enforcement of court rulings.

In an interview with The Nation, Professor Damilola S. Olawuyi, SAN and Global Vice Chair, International Law Association and Deputy Vice Chancellor, Afe Babalola University, Ado Ekiti (ABUAD), said as the judicial organ of ECOWAS, the ECOWAS Court was established to ensure the observance of law and justice in economic integration efforts across the West African community.

He said while the court has recorded some noteworthy achievements in advancing this goal, several practical challenges continue to limit its relevance and effectiveness.

“Chief amongst these is the flagrant disregard for the court’s decisions by several member states. The court has one of the lowest compliance rates of all regional or sub-regional courts in the world. Strengthening the court will therefore require greater commitment by all member states to comply with and implement the binding decisions of the court in accordance with norms of responsibility in international law.

“Another key challenge is the inadequate financial and technical resources that the court faces, which continues to slow down its modernisation and digitalisation when compared to other regional courts across the world. The COVID-19 pandemic has indeed accentuated the urgency of having innovative and technology-driven courts. While the ECOWAS Court promptly issued a Practice Direction on Electronic Case Management to enable the timely and efficient resolution of disputes during the pandemic, its implementation has not been seamless. Old developmental challenges such as lack of suitable accommodation space, inadequate remote technology and e-justice tools, and skills deficit, especially low number of ICT-competent staff and language translators, all mean that the ECOWAS court remains several years behind its peers.

“Without addressing these old developmental challenges, building a stronger and more relevant ECOWAS Court would be very difficult. One step would be for ECOWAS to immediately appoint a Working Group of eminent jurists and experts across the region, tasked with reviewing the progress of the court, and developing a strategic plan to strengthen the court’s relevance, modernisation, and future role in regional economic governance, including its legal structures and resource needs.

Therefore, the court, after remarkable achievements so far, needs more capacity and supports from member-states to deliver on its mandates and give succours to those in need of justice. The stakeholders told The Nation that ECOWAS must contemplate imposing sanctions, including suspension of member countries that flout rulings of the community court.

Flouting the community court’s ruling, they said, is against the dictates of the ‘Community Texts’’ and which also equates to disruption of democratic and justice processes.

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