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07.05.2018 Opinion

How Does The ECOWAS Court Exercise The Human Rights Mandate Under The 2005 Protocol?

By Christian Mikala-Ofori
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The Economic Community of West African States (ECOWAS) is a regional conglomerate of 15 member states whose mandate is to ‘promote greater economic integration in all fields of activity of the constituting countries.’ Due to the breadth of this mandate, the intentions of the West African body are broad and appear to be ambitious, with goals including attaining free movement of persons between the member states and the unification of currencies within the region.

The member states of the Community are Benin, Burkina Faso, Cape Verde, Cote d’Ivoire, The Gambia, Ghana, Guinea, Guinea Bissau, Liberia, Mali, Niger, Nigeria, Sierra Leone, Senegal and Togo. This diverse set of states have different colonial experiences, over a thousand local languages, covering an area of 5.1 million square kilometres. In order to achieve effective economic integration, other non-economic goals need to be addressed, furthering social progress and social unification.

This was put in writing upon the adoption of the ECOWAS Revised Treaty, wherein the Member States ‘affirmed and declared their adherence to the “recognition, promotion and protection of human and peoples’ rights in accordance with the provisions of the African Charter on Human and Peoples’ Rights”, “accountability, economic and social justice and popular participation in development”; “promotion and consolidation of a democratic system of governance in each Member State and “equitable and just distribution of the costs and benefits of economic co-operation and integration”. This Treaty in 1975 represented a pledge towards social unification of many kinds. Many of these pledges were expanded upon and addressed in subsequent meetings.

Although the African Commission on Human and Peoples’ Rights had already been in existence for some time before the ECOWAS, it has faced many challenges, chiefly among them is the fact that it is not a real judicial body, the states that have ratified the charter do not necessarily have to actually obey the commission’s recommendations, and as such the commission is not the most effective possible mechanism, leaving states with little in the way of accountability for certain actions.

In 1991, the ECOWAS Court was created. This was a measure to resolve disputes among ECOWAS member states, and initially had jurisdiction over disputes relating to interpretation, application or legality of ECOWAS regulations, disputes between ECOWAS and its member states and those relating to liability either for or against ECOWAS. In 2005, however, this changed. A supplementary protocol was added, which allowed individuals to come before the court if they had a case of human rights violation against any member state.

Unlike comparable courts, such as the European Court of Human Rights, the exhaustion of domestic remedies is not a prerequisite for using the court. This allows any individual to entirely bypass their own country’s systems of justice, something which may be desirable for many reasons, such as a belief that they will not get justice within their own state due to corruption, or that they will get a more expeditious and unfair trial through the ECOWAS Court. There are many potential issues with this, some addressed and some less so, and this paper aims to examine the legal frameworks for the ECOWAS Court and a person’s Right to Remedies before the ECOWAS Court.

Before anything further can be explored, it is necessary to find the human rights mandate of the ECOWAS Court. It is worth noting that the court, as the principal legal organ of ECOWAS, relies on ECOWAS properly establishing authority over issues of human rights in its treaties. It is only then that ECOWAS would be able to bestow upon the Community Court the ability to judge cases. The Supplementary Protocol lacks a Human Rights catalogue, and so questions must be asked about the source of its mandate- after all it is necessary to establish that the court has the authority to give judgements, as well as something to refer to in order to verify if these rights are or are not being followed. Originally, the ECOWAS treaties carefully avoided making reference to rights at all, as ECOWAS had started off with a more economical angle.

As can be seen in the preamble to the ECOWAS protocol on Democracy and Good Governance, this changed in later years, as protocols were written which explicitly referenced the African Charter on Human and Peoples’ Rights. A good example of these changes in language is the freedom of movement, which changed in language from an ‘abolition of obstacles to the freedom of movement of persons’ to a much more direct ‘rights to enter, reside and establish’.

The African Charter is a charter which is similar in most respects to the European and American comparable human rights instruments, but differs in its lacking of certain rights such as the rights to privacy and an explicit right against forced labour.

Because the aforementioned Protocol on Democracy and Good Governance makes explicit reference to not only the African Charter, but the United Nations’ Universal Declaration of Human Rights, the court would and indeed does argue that these instruments constitute international law and as such carry a lot more weight. That being said, the Universal Declaration is not a legally binding instrument, and leads to the African Charter being the more vital of the two sources of human rights demand.

In practice, this is a point which has been in contention before. In Abacha v. Fawehinmi, the Nigerian government arrested former national security advisor Col. Sambo Dasuki in accordance with the 1999 constitution (as amended), but in conflict with the Ratification and Enforcement Act of the African Charter. The Nigerian Supreme Court then held that the constitution was higher than the African Charter in terms of the hierarchy of superiority of laws. The court then asserted that it ‘cannot be said to be higher than the African Charter in case of any conflict between the two enactments as States are not allowed to rely on domestic legislations to justify derogations from treaties to which they have subscribed.’ This is an interesting nuance in the possible actions of the Community court, as ordinarily the court would not rely on member states’ constitutions to decide on cases, but here the African Charter is something which all of the member states have already agreed to, and so something which necessarily overrides domestic legislation which may be in conflict with it (something which if it were not the case, would simply result in such Charter being diluted and made worthless in the case of regulation of states behaviour as states could just write laws that contradicted any human rights provisions in the Charter they did not wish to follow in order to deny their citizens basic and fundamental human rights.

One might ask how the court was able to get ECOWAS member states to initially sign off on giving it the ability to allow individuals to come to it and seek human rights remedies, when so many including Nigeria have been so resistant both to the ECOWAS Court judgements, and even before its creation the enforcement of the rights afforded by the African Charter to citizens of nations who had signed off on it. This is a reasonable question, and as one might imagine one whose answer is not straightforward. The case of Afolabi v. Nigeria was a landmark to this end, as after the government closed the Nigeria-Benin border Afolabi became unable to make good on several contracts he signed, and went to the ECOWAS court citing a violation of his freedom of movement rights. The ECOWAS Court did not have the appropriate powers to enforce this, despite it being a right enshrined in the ECOWAS treaty.

This prompted the Council of Ministers as well as the judges themselves to push for the increased jurisdiction of the court to allow access to non-state actors, and the resulting amendment was pushed through without much resistance as the contradiction in afforded rights and ability to defend them was made very apparent by this and some other cases that were similarly dismissed around the same period such as Ukor v. Rachad Laleye.

As mentioned before, exhaustion of domestic remedies is not something required by these non-state actors (including individuals and NGOs) in order to access the court. This is highly unusual, as it is something of an international law principle for the reason that conventionally local remedies and redress mechanisms, and through that the need for states to be able to enforce their own local rules, or at least, be given an opportunity to do so. The court acknowledges this, but suggests that in other international courts this rule is often bent or broken. It does not however cite examples, making the claim rather unpersuasive due to there being plenty of international courts such as the European Convention which do recognise the rule of exhaustion of domestic remedies still as a necessary one to be able to admit applications for remedies.

There are quite a few arguments for and against the requirement of exhaustion of domestic remedies-- while it does allow the court to bypass certain possible issues of local corruption, it also leaves the court potentially uninsulated from cases that may force it to get over involved with domestic issues concerning ECOWAS member states- especially as it has been agreed by each state that the judgments of the court are automatically binding and to be enforced by the most senior legal officials of each state.

When the court does render judgments, how effective are they in practice? The first potential difficulty lies with the enforcing of judgments. Although in theory all states should be equal, but in practice the reality is more complex. When the states are not actively interfering in the legal process, the ECOWAS court has shown itself to be extremely effective in carrying out its human rights mandate. For example, the Gambia attempted to reduce the scope of the ECOWAS court after it was ruled that their human rights violations, here in the form of torture and imprisonment of political prisoners including journalists and dissenting officials was unacceptable practice, but the other nations rejected the request. This is not descriptive of all such cases however. Nigeria is one of the wealthiest states in the economic group, with a GDP of over $400,000M, dwarfing the other states which combined only have a GDP of $156,000M. In fact, the official base of the ECOWAS court is located in Abuja. This potentially creates a conflict of interest, as the country then contribute the vast majority of funding within the ECOWAS. Nigeria puts up much more of a fight after the court rules against them consequently, just because the country’s financial position allows it to. This means that even a simple case such as Njemanze vs Nigeria can become a protracted battle, and while Nigeria has never stopped the court functioning, the possibility seems entirely within the authorities’ abilities as a state should they choose to do so.

While in theory the human rights mandate allows the court to bring the nations under ECOWAS forward in terms of human rights, there is a significant amount of work to be done in terms of the clarity of the mandate and the parity of the nations within it before it can truly be said that the court is a success. That said, it has been far and away the most successful of such ventures in the area, and there is good evidence that in the future the court will continue to make great strides.

Christian Mikala-Ofori is Law and Politics student, London

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