Introduction
One of the constitutional challenges of regional integration is how to manage the limitation of national judiciary sovereignty of member states to ensure that community law is recognized as superior to national law and is accordingly applied and interpreted by the national courts at the instance of the community citizens. This challenge arises from the national ordering of legal systems and the fact states are the primary parties to agreements in which they limit their sovereignty in favor of the success of the community as a whole. It appears natural that community judicial institutions should be entrusted with responsibility of enforcing the intent of member states who are assumed to be eager, ready and willing to bring their action, inactions, understandings and disagreements over community law to community citizens, including non-nationals. It is fundamental to allow these citizens to approach judicial institutions about how the measures that constitute them as community citizens are being implemented. It is also desirable to allow to approach national courts over how national institutions, including community citizens have acted or not acted with respect to community law.
History and Essence of the Court
The ECOWAS Court of Justice is an organ of the Economic Community of West African States (ECOWAS), a regional integration community of 15 member states in Western Africa. It was created pursuant to the provisions of Articles 6 and 15 of the Revised Treaty of the Economic Community of West African States (ECOWAS)
Constituting documents
Although ECOWAS was founded in 1975 by the Treaty of Lagos (ECOWAS Treaty),[2] the Court of Justice was not created until the adoption of the Protocol on the Community Court of Justice in 1991.[3] Additionally, the ECOWAS Revised Treaty of 1993 established the Court of Justice was an institution of ECOWAS.[4] The Protocol was amended twice; once in 2005,[5] and once in 2006.[6] Notably, the 2005 Supplementary Protocol expanded the Court’s jurisdiction to include human rights claims by individuals.
Jurisdiction
The Court has jurisdiction over four general types of disputes: (1) those relating to the interpretation, application, or legality of ECOWAS regulations, (2) those that arise between ECOWAS and its employees, (3) those relating to liability for or against ECOWAS, and (4) those that involve a violation of human rights committed by a member state.[7]
Organization
Judges
Hon. Justice Edward Amoako Asante (Ghana), Hon. Justice Gberi-bè Ouattara (Côte d’Ivoire), Honorable Justice Dupe Atoki (Nigeria), Honorable Justice Keikura Bangura (Sierra Leone), Honorable Justice Januária Tavares Silva Moreira Costa (Cape Verde)
Cases
The Court’s docket has been limited, with no more than two dozen judgments rendered annually.[8] However, since 2005, when the Court’s jurisdiction was expanded to include human rights claims, the vast majority of cases decided by the Court concern human rights.[9]
The Economic Community of West African States (ECOWAS; also known as CEDEAO in French and Portuguese) is a regional political and economic union of fifteen countries located in West Africa. Collectively, these countries comprise an area of 5,114,162 km2 (1,974,589 sq mi), and in 2015 had an estimated population of over 349 million.
Considered one of the pillar regional blocs of the continent-wide African Economic Community (AEC), the stated goal of ECOWAS is to achieve “collective self-sufficiency” for its member states by creating a single large trade bloc by building a full economic and trading union. The union was established on 28 May 1975, with the signing of the Treaty of Lagos, with its stated mission to promote economic integration across the region. A revised version of the treaty was agreed and signed on 24 July 1993 in Cotonou.
The ECOWAS also serves as a peacekeeping force in the region, with member states occasionally sending joint military forces to intervene in the bloc’s member countries at times of political instability and unrest.
Regional Organization: Economic Community of West African States
ECOWAS Date of Establishment: May 28, 1975
ECOWAS CCJ Date Operational: August 22, 2002
ECOWAS CCJ Seat: Lagos, Nigeria
States Subject to ECOWAS CCJ Jurisdiction: Benin, Burkina Faso, Cape Verde, Côte d’Ivoire, Gambia, Ghana, Guinea, Guinea-Bissau, Liberia, Mali, Niger, Nigeria, Senegal, Sierra Leone, and Togo
Number of Cases Received by the Court: 33
The Economic Community of West African States (ECOWAS/CEDEAO) is well known for its military intervention in Liberia and Sierra Leone. ECOWAS was created in 1975 to replace the Customs Union of West African States originally created in 1959 to redistribute customs duties collected by the coastal states of West Africa. The Treaty on the Economic Community of West African States was revised at the Cotonou Summit of July 1993 to replace the inexistent Tribunal originally envisioned with a Community Court of Justice.
Although the revision of the Treaty (including the addition of the Court of Justice) was intended to help the Organization meet its goal of economic union, it was clear that the Member States did not desire the Court to be an engine for realizing this goal. While the Revised Treaty entered into force in 1995, the judges of the Community Court of Justice were not appointed until January 30, 2001. Further, the operationalized Court had one stringent limitation on the impact it could have in the Community: a narrow field of access. Only the Authority of Heads of State and Government (the executive of the Community comprised of all the Member States) and the Member States acting individually were permitted to initiate a contentious case in the Court. The power to request advisory opinions on the Treaty was limited to the Authority, the Council of Ministers, Member States, the Executive Secretary and other institutions of the Community. The effect of this limited standing in the Court was that until 2003, the Court was idle.
The Court is composed of seven judges appointed by the Authority of Heads of State and Government from a list of up to two persons nominated by each Member State. It received its first case in 2004. This landmark first case (Olajide Afolabi v. Federal Republic of Nigeria) was filed by an individual businessman against the government of Nigeria for a violation of Community law in the closing of the border with Benin. The Court ruled that under the Protocol only Member States could institute cases. The Court’s ruling began a discussion, headed by the Judges themselves, over the need to amend the Protocol to allow for legal and natural persons to have standing before the Court.
In January 2005, the Community adopted the Additional Protocol to permit persons to bring suits against Member States. Beyond this monumental change, the Council took the opportunity to revise the jurisdiction of the Court to include review of violations of human rights in all Member States. This language made clear that the sources of law to be applied by the Court under its original Protocol would include not only general principles of international law, but also those in relation to human rights. Additional Protocol A/SP.1/01/05 also adds jurisdiction over any disputes arising under agreements, other than the Treaty, between Member States that so provide.
The Additional Protocol also gave national courts of Member States the right to seize the ECOWAS Court for a ruling on the interpretation of Community law. Previously, the language in the Protocol was unclear as to whether a Member State court could only seize the Community Court of a matter through the auspices of the national government. Further changes are expected, with the Court having been previously scheduled to add an appellate division in January 2007.
Since the adoption of the Additional Protocol, the Court has received several cases from individuals and the institutions of the Community itself. Notably, the Court has been seized by Nigerian politicians complaining of violations of their human rights in the determination of election outcomes. The Court’s handling of these cases has been controversial in Nigeria, as some in the Nigerian legal community believed that the Court should have rejected them immediately, without issuing interim orders. While this increase in the caseload of the Court is encouraging, the Court’s future as an engine for integration across the Community remains in question due to the fact that the cases being brought are from Nigeria alone rather than other Member States. Further, the President of the Court has noted that the accessibility and cost of bringing cases to the Court continue to be a barrier to the Court’s success, in addition to its inadequate human, financial and material resources. Nonetheless, between January 2006 and June 2007, the Court received 26 applications and held 63 sessions.
Following the Additional Protocol, the Court underwent further changes to its position within the Community. In June 2006, the Authority of Heads of State and Government decided to establish a Judicial Council of the Community with responsibility for recruiting judges for the Community Court and handling judicial matters, including a restructuring of the Court.
Establishment
The 1975 ECOWAS Treaty included a mandate for a Community Court of Justice (CCJ) to adjudicate disputes related to the interpretation and operation of the Treaty, as revised in 1993. The details for the operation of the Court were established by the 1991 Protocol on the Community Court of Justice signed by the ECOWAS High Contracting Parties. The Court became operational in December 2000. Seven judges sit on the Court, each serving a five-year term. No two judges can be nationals of the same state.
Jurisdiction
CCJ jurisdiction is set out in Article 9 of the 1991 Protocol which states that the court “shall ensure the observance of law and the principles of equity in the interpretation and application of the provisions of the Treaty.” The Court has ruled that this includes jurisdiction over human rights cases. This principle was codified by a 2005 ECOWAS Supplemental Protocol, which states that the CCJ has jurisdiction to hear human rights cases and expands the admissibility rules to include disputes between individuals and their own member states. As a result of these amendments, the CCJ is thus four courts in one: an administrative tribunal for ECOWAS, a human rights court, a court of arbitration, and an Inter-State dispute resolution tribunal. The Court can consider cases brought by:
Individuals on application for relief for violation of their human rights
Individuals and corporate bodies to determine whether their rights have been violated by an ECOWAS official
Member states and the Executive Secretary, to bring an action against a state for failure to fulfill treaty obligations
Member states, the Council of Ministers, and the Executive Secretary for determination of the legality of any action related to ECOWAS agreements
ECOWAS staff who have exhausted remedies under ECOWAS Rules and Regulations; and
Member states’ national courts who may request to refer an issue related to the interpretation of ECOWAS agreements to the CCJ.
Article 10 of the Protocol further provides that the CCJ may express an advisory opinion on requests of the Treaty if the Authority, Council, or one or more member states requests it.
Admissibility
There is no need for exhaustion of domestic remedies in order to apply to the CCJ. However, for cases alleging a human rights violation in a member state, applications should not be anonymous and cannot be made while the same matter is pending before another international court.
Remedies
The ECOWAS instruments do not specify the remedies that the Court can provide. In past cases, remedies ordered by the Court included both awards of damages, as well as specific orders such as an order for the immediate release of an illegally detained journalist (see Manneh v. Gambia).
Enforcement
Decisions of the Court are final and binding under the 1991 Protocol. Member states and ECOWAS institutions must take all measures necessary to ensure execution of the Court’s decision. Under Article 24 of the 2005 Protocol, the execution of a judgment of the Court must be in the form of a Writ of Execution, and the Chief Registrar is required to submit this Writ to the member state. The member state is required to execute the judgment according to its national courts. The member state must also determine the national authority to execute the Court’s judgment and inform the Court of the relevant authority.
Cases
The Court’s major human rights decisions have included a landmark 2008 ruling on slavery, in which the Court held the State of Niger responsible for failing to protect one of its citizens from enslavement by passively tolerating the practice (see Hadijatou Mani Koroua v. Niger), and a 2011 ruling ordering government of Nigeria to provide adequate financial support for public education in order to fulfill its obligation under the African Charter on Human and Peoples’ Rights to provide free and compulsory basic education to every Nigerian child (see SERAP v. Federal Republic of Nigeria and Universal Basic Education Commission).
Conclusion
This Research examines whether the ECOWAS Community Court of Justice (ECCJ or Court), as an international court operating in the West African region with its peculiar sociopolitical and economic context, enjoys any form or degree of actual authority in any of its main functions. The ECCJ’s two contrasting epochs represent a variation in the authority of the Court. Whereas under its 1991 Protocol, the Court enjoyed limited de jure authority with little potential for growing its de facto authority, the 2005 Supplementary Protocol introduced expansions that increased the potential for enhanced de facto authority. Ultimately, the Court’s authority varies significantly both in terms of areas of competence, as among different court-users and in relation to wider communities in its State Parties. Arguably, these variations indicate that different factors influence the responses that the Court attracts from different user-groups.
The Community Court of Justice of the Economic Community of West African States (ECOWAS Court) is an increasingly active and bold adjudicator of human rights. Since acquiring jurisdiction over human rights complaints in 2005, the ECOWAS Court has issued numerous decisions condemning human rights violations by the member states of the Economic Community of West African States (Community). Among this Court’s path-breaking cases are judgments against Niger for condoning modern forms of slavery and against Nigeria for impeding the right to free basic education for all children. The ECOWAS Court also has broad access and standing rules that permit individuals and nongovernmental organizations (NGOs) to bypass national courts and file suits directly with the Court. Although the Court is generally careful in the proof that it requires of complainants and in the remedies that it demands of governments, it has not shied away from politically courageous decisions, such as rulings against the Gambia for the torture of journalists and against Nigeria for failing to regulate multinational companies that have degraded the environment of the oil-rich Niger Delta.
REFERENCES:
- Open Society Justice Initiative
- ES Nwauche
Journal of African Law
Vol. 55, No. 2 (2011), pp. 181-202 (22 pages)
Published By: School of Oriental and African Studies
- Published online by Cambridge University Press: 20 January 2017
- Authors: Karen J. Alter,
Laurence Helfer and
