UNDERSTANDING THE JURISDICTION OF THE ECONOMIC COMMUNITY COURT OF JUSTICE AND IT’S ROLE IN PROMOTING COOPERATION, PEACE AND JUSTICE AMONG IT’S MEMBER STATE
BY
MBANG CONFIDENCE, ESQ.
BEING A LECTURE DELIVERED AT THE WEBINAR OF THE WEST AFRICAN LAW STUDENTS ASSOCIATION (WALSA)
8TH MARCH, 2023.
I was at the peak of an official assignment when I received the notice and invitation to be one of the Guest Speakers in the One Day Seminar of the West African Law Students’ Association (WALSA), by the Executive President, Comrade Nazir Sanusi. As a Comrade, youth parliamentarian and one of the mentors of the Association, being a product of the combine refinery of academics and unionism, it was expedient to accept the invite and prepare this brief but intriguing paper; replete with copious references for consumption.
The topic is a typical one because it relates solely to the international judicial system of the West African States, while the jurisdictional limits of this Association is also West Africa. It reminds me about the black skin, and indeed the allegiance and obligations we owe towards maintaining the co-existence, unity, peace and progress of Africa and the world at large. This has been an age-long crusade by even micro- organizations in the globe. The paper promises to be thrilling, albeit brief; ‘short enough to attract attention, but long enough to cover the subject matter.’ For purposes of prosperity,’’ I hereby assert my right of mistake’’, taking solace from a jurist par excellence.
This discourse is a peculiar one, and reminds me of the fact that we are assembled here to only reawaken our minds about the bond we share as Africans, and indeed the primary duty we owe to ensure that we continue as a continent to affirm the vision and mission of our forefathers who conceived our various Independence. Therefore,” forgive me if I refer to things you know too well.”
Kudos to the leadership of WALSA for this epoch breaking event, it is worthwhile.
Thank you for this honor, I will not fail you nor my idol.
TABLE OF CONTENT
TABLE OF CASES
BIBLIOGRAPHY
1.0 Part 1: INTRODUCTION
>Creation
>Mandate
>Composition
>Applicable Laws
2.0 PART 2: JURISDICTION OF THE ECONOMIC COMMUNITY COURT OF JUSTICE (ECCJ)
>Advisory and Contentious
>Subject matter
>Access to Court; Persons eligible
>How to Institute Actions
>Sitting
>Decisions
>Remedies
>Basic Texts
3.0 PART 3: THE ROLE OF THE ECONOMIC COMMUNITY COURT OF JUSTICE (ECCJ) IN PROMOTING COOPERATION PEACE AND JUSTICE AMONGIT’S MEMBER STATE
>Some Decided Cases
> SERAP V. FEDERAL REPUBLIC OF NIGERIA (2021)
>SERAP V. FEDERAL REPUBLIC OF NIGERIA & UNIVERSAL BASIC EDUCATION COMMISSION (2008)
>HADIJATOU MANI KORAOU V. NIGER, JUDGEMENT NO:ECW/CCJ/JUD/06/08,DECIDED ON 27 OCTOBER, 2008
>FALANA& ANOR V. FEDERAL REPUBLIC OF NIGERIA & 2 ORS (2012)
4.0 PART 4: ENFORCEABILITY:ENIGMA SMELLS
>HADIJATAOU MANI’S CASE
>AGBA JALINGO’S CASE
5.0 PART 5: RECOMMENDATIONS AND CONCLUSION
1.0 INTRODUCTION [1]
The International law has been a major parameter through which International relations are being maintained and principles observed in line with the overall mandate of the polity. Africa has not be an exception of this regional and sub-regional arrangements dominating the international governance.
West African States have worked to address their institutional deficits and promote economic growth and development. One of the ways they have done this is through regional integration. Although concrete discussions about regional integration in Africa began at the start of the 20th century, the real returns were not realized until about half a century late. [2].
The foremost intergovernmental organization in West Africa is the Economic Community of West African States (ECOWAS), which was established in 1975 with the adoption of the Lagos Treaty by the leaders of fifteen West African countries [3]. Under the 1975 Treaty, integration was expected “to promote cooperation in all fields of economic activity for the purpose of raising the standard of living of people, increasing and maintaining economic stability, fostering closer relations among members, and contributing to the progress and development of the African continent.” In furtherance of this broad development objective, Article 2(2) of the 1975 Treaty sets out [mainly economic] principles geared towards achieving the goals of integration. [5]
Judicial institutions as a core component of the political system cannot be overemphasized, and their proper functioning contributes significantly to state effectiveness. Article 1(c) of the 2001 ECOWAS Protocol on Democracy and Good Governance Supplementary to the Protocol relating to the Mechanism for Conflict Prevention, Management, Resolution, Peacekeeping, and Security lists independence of the judiciary as one of the constitutional principles shared by ECOWAS Member States, noting that ‘judges shall be independent in the discharge of their duties’.
Therefore, democracy and good governance demand a properly functioning judicial system that meets the demands of citizens. In West Africa, one of the ways in which the challenges of access to justice and judicial institutions were addressed was through regional integration and the introduction of regional judicial institutions. As Nwauche notes, “Regional human rights protection is often a reaction against the failings of nation states operating on the assumption that the pooled resources of a regional understanding will overcome the weakness of national human rights systems. It is often thought that states with a weak human rights system will change their systems to accord with higher regional normative standards.”[6]
Therefore, one of the most important organs of the Economic Community of West African States (ECOWAS), is the Economic Community Court of Justice (referred to as the ‘ECCJ’). This paper is divided into parts, part 1 deals with the introductory aspects of the subject matter, running through the creation, mandate, composition and applicable laws. Part 2 deals exclusively with the jurisdiction of the ECCJ, spanning across it’s advisory and Contentious Jurisdiction, subject matter Jurisdiction, how to access and institute actions, and even recommended the practice texts of the Court. Part three offers an empirical discourse about the role the Court has played within the years in promoting and ensuring Cooperation, unity and peace amongst Member States. Four decided cases shall be examined a case studies, to see the attitude of the Court towards the performance of these roles. Part four discourses enforceability and it’s enigma. It is submitted that while the Court is up to expectation of her mandate, the modus operandi for enforcement of the judgement continue to be a dream as many Member States blatantly ignore the same.
CREATION
The ECOWAS Court of Justice was created in 1991 pursuant to the provisions of Articles 6 and 15 of the Revised Treaty of the Economic Community of West African States. It became operation on the 22nd of August 2002. It has its seat in Abuja but can seat elsewhere subject to convenience and the circumstances.
MANDATE OF THE ECONOMIC COMMUNITY COURT OF JUSTICE (ECCJ)
The mandate of the Court is to ensure the observance of the law and the principles of equity in the interpretation and application of the provisions of the Revised Treaty of the Economic Community of West African States and all other subsidiary legal instruments adopted by the community. [7]
COMPOSITION OF THE ECONOMIC COMMUNITY COURT OF JUSTICE (ECCJ)
The Court is composed of seven independent judges who are persons of high moral character appointed by the authority of the Heads of States and Government from a lost of not more than two persons nominated by each member state for a four-year term of office upon the recommendation of the Community Judicial Council. [8]
The Court is headed by the President and Vice President, who shall take precedence before all Members. [9] The President is responsible for the administration of the Court and he presides at hearings and deliberations.[10]
No two judges can from one State.[11] The nominee for this office must possess the highest qualification in their respective countries for appointment to the highest judicial offices or must be jurisconsult of recognized competence in international law.
APPLICABLE LAWS
The following laws are applicable to the court:
(a) The Revised Treaty of the Economic Community of West African States, the Conventions, Protocols, and Regulations adopted by the Community;
(b) The general principles of laws set out in Article 38 of the Statue of the international Court of Justice; and
(c) International instruments relating to human rights and ratified by the state or states parties to the case.
2.0 THE JURISDICTION OF THE ECONOMIC COMMUNITY COURT OF JUSTICE (ECCJ)
For purposes of proper understanding, it is important to highlight the member states of the ECOWAS, viz; Benin, Burkina Faso, Cape Verde, Cote d’Ivoire, Gambia, Ghana, Guinea, Guinea-Bissau, Liberia, Mali, Mauritania, Niger, Nigeria, Senegal, Sierra Leone, and Togo. [12]
It should be noted that originally, only member states could institute cases at the Court, however, this changed in 2005, and natural persons can now institute an action in the Court. This change came on the heels of it’s first landmark case in 2004, in Olajide Afolabi v. Federal Republic of Nigeria.[13]
It was case filed by a business man against the Government of Nigeria for violation of Community law in closing the border with Benin. The Court ruled that under the Protocol, only Member States could institute cases. However, this ruling led to discussions on the need for a change to allow legal and natural persons have a standing before the Court.[14]
In January, 2005, the Community adopted an additional protocol to permit persons to bring suits against Member States. But if a matter has already received the attention of the municipal court, the ECCJ will have no jurisdiction over the same matter.[15]
Advisory and contentious Jurisdiction
The Court exercises both advisory and contentious jurisdiction; for instance, in the exercise of its contentious jurisdiction, the Court examines cases of failure by Member States to honor their obligations under the Community law [16]. Article 10 of the Protocol further provides that the CCJ may express an advisory opinion on requests under the Treaty if the Authority, Council, or one or more member states request it, while in the exercise of its contentious jurisdiction, the Court gives a legal advisory opinion on any matter that requires interpretation of the Community text. [17]
SUBJECT MATTER JURISDICTION
The original jurisdiction of the Court was provided for in Articles 1, 2, 9, 22, and 30 of the 1991 Protocol, however, it was amended by the supplementary protocol A/SP.1/01/05. Article 3 of the supplementary protocol substituted a new Article 9 of the former protocol. Accordingly, the court has jurisdiction over:
(a) to adjudicate any dispute relating to the interpretation and application of the treaty, conventions, and protocols of the Community;
(b) to adjudicate in disputes between institutions of the community and their officials;
(c) to handle cases of violation of human rights that occur in any Member State;
(d) to determine cases dealing with liability for or against the community;
(e) to make declarations on the legality of regulations, directives, decisions, and other subsidiary legal instruments adopted by ECOWAS. [18] It should however be noted that the list above is nowhere near exhaustive.
ACCESS TO THE ECONOMIC COMMUNITY COURT OF JUSTICE (ECCJ); PERSONS ELIGIBLE.
The following persons may have access to the Court;
(a) All Member States and the Commission, for actions brought for failure by Member States to fulfill their obligations;
(b) The Member States, the Council of Ministers of the Community and the Commission, for determination of the legality of an action in relation to any Community text.
(c) Individuals and corporate bodies, for any act of the Community which violates the rights of such individuals or corporate bodies;
(d) Staff of any of the ECOWAS institutions;
(e) Persons who are victims of human rights violations occuring in Member State;
(f) National courts or parties to a case, when such national courts or parties request that the ECOWAS Court interprets, on preliminary grounds, the meaning of any legal instruments of the Community;
(g) The Authority of Heads of the State and Government, when bringing cases before the Court on issues other than those cited above.[19]
HOW TO INSTITUTE ACTIONS IN THE ECONOMIC COMMUNITY COURT OF JUSTICE (ECCJ)
The procedure for institution of proceedings in the Court is through written applications addressed to the registry. The application must contain the following;
(a) Name of the applicant;
(b) The party against whom the proceedings are instituted;
(c) A brief statement of the facts of the case; and
(d) The orders being sought by the plaintiff.
It should be parenthetically noted that for a court to assume jurisdiction, the application must not be anonymous, and the matter must not be pending before any other international court. This is in a bid to avoid conflicts of jurisdiction due to the proliferation of the international judicial system. [20]
It should be parenthetically noted that, is a requirement under the Rules of the Court that Notice of the registration of an Application initiating proceedings be given in the Official Journal of the Community so that interested persons who may wish to intervene in the proceedings, can do so. An application to intervene must be made within six weeks of the publication of the notice of registration. The court has delivered quite a few decisions on various aspects of human rights. As at date the court has delivered 191 judgments and rulings on cases of human rights violations.
SITTINGS OF THE COURT
The Court seats with an uneven number of it’s members. The sitting shall be public and the Court may however sit in camera at the request of one of the parties or for reasons which only the Court may determine thereto. [21]
DECISIONS OF THE COURT
The decisions of the Court are binding, and each Member State shall indicate the competent national authority responsible for the enforcement of the judgment. [22] The decisions are not subject to appeal except in cases of application for the revision of the same by the Court, decisions may also come under objection from third parties. However, it should always be remembered that the decisions of Court are final and immediately enforceable.[23]
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 Mannehv. Gambia).[24]
BASIC TEXTS OF THE COURT
The basic text of the Court are:
(a) Protocols
(b) Supplementary Protocol
(c) Revised Treaty
(d) Rules o Procedure 2002; and
(e) Instructions of the Chief Registrar and Practice Directions 2012
3.0 THE ROLE OF THE ECONOMIC COMMUNITY COURT OF JUSTICE IN PROMOTING COOPERATION, PEACE, AND JUSTICE AMONG ITS MEMBER STATES
At this juncture, you would agree with me that the ECCJ is a well established and organized Court with a crucial mandate that even permeates individual claims. The role of this magnificent Court cannot be overemphasized because it visible to the blind and audible to the deaf. It is like a cocoon with a toga whose decisions are seen at par with those of the various national courts of Member States, however; enigma smells.
SOME DECIDED CASES
SERAP V FEDERAL REPUBLIC OF NIGERIA (2021)
Facts
On June 4, 2021, the Respondent suspended the micro-blogging App Twitter across Nigeria, stating that Twitter’s operations constituted threats to the stability of Nigeria and that “Twitter is undermining Nigeria’s corporate existence”. The Applicants are Non-Governmental Organizations and individuals who had, in different suits, approached the Court to challenge the suspension of operations of Twitter by the Respondent. The Applicants are Socio-Economic Rights and Accountability Project (SERAP) and others.
The Applicants initiated a case at the Community Court of Justice of the Economic Community of West African States, arguing violations of Article 9 of the African Charter on Human and People’s Rights (ACHPR) and Article 19 of the International Covenant on Civil and Political Rights (ICCPR).
Four main issues were before the Court for determination: (i) whether the Court had jurisdiction to adjudicate upon this matter, (ii) whether there was a contravention of Article 9 of ACHPR and Article 19 of the ICCPR by regulation of social media and the violation of the right to freedom of expression, access to media and information, (iii) Whether the Respondent’s act of suspension of Twitter’s operations was legal; and (iv) whether there was a violation of the Right to Fair Hearing by the Respondent prosecuting and punishing without reference to a breach of any existing law under the provisions of the ACHPR.
By a Motion dated July 5, 2021, the Federal Republic of Nigeria, as the Respondent in all the suits, asked the Court to consolidate all the applications. All the Applicants consented to the consolidation of the suits and decided that SERAP present the claims through its counsel. The Court consequently ordered all the applications consolidated, and SERAP led the applicants. There were also three applications to intervene “amicus curiae” by Robert F. Kennedy Center for Justice and Human Rights, Access Now (and Electronic Frontier Foundation and Open Net Association), and Amnesty International.
The Applicants maintained that the suspension of operations of Twitter was the Respondent’s reaction to the flagging of its President (President Muhammadu Buhari)’s tweet, violating their rights to freedom of expression and that of many Nigerians. The Applicants claimed that no law or court order sanctioned the said suspension. The Applicants contended that the suspension restricted the right to freedom of expression and information of many Nigerians. The Applicants further claimed that the Respondent has a sub-regional, regional and international commitment to human rights and that its suspension of the operation of Twitter was tantamount to failure of its obligations to applicable human rights treaties and conventions, and the failure “has left millions of Nigerians at home and abroad unable to participate in issues of public interest, especially on ideas and views on the performance of the respondent concerning its constitutional and international human rights obligations”.
The Applicants claimed that the Respondent further directed its agent to immediately commence licensing of all OTT and social media services in the country, which according to the Applicants, is unknown to the Nigerian law and constitutes a fundamental breach of the Applicants’ right to freedom of expression, access to information and media freedom as protected under the relevant national laws and international human rights instruments including the ACHPR and ICCPR.
Respondent, in its defence, stated that the suspension of Twitter was not aimed at violating freedom of expression nor intimidating Nigerians but to ensure that Twitter “complies with extant laws”. The Respondent emphasized that the suspension of operations of Twitter was essential to protect Nigeria’s sovereignty and prevent Nigeria’s corporate existence from destabilizing. The Respondent specifically claimed that Twitter as a platform was being used by a separatist leader who had perpetrated acts of violence against Nigerian soldiers and Police Officers. The Respondent further contended that the ENDSARS protest, which reportedly led to violence in many parts of Nigeria, was sponsored by the founder of Twitter. The Respondent also submitted that the right to freedom of expression is not absolute and relied on its extant laws in justifying the suspension of the operation of Twitter.
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Hon. Justice Gberi-Be Ouattara presided over the three-judge panel of the Community Court of Justice of the Economic Community of West African States, including Hon. Justice Keikura Bangura and Hon. Justice Januaria T. Silva Moreira Costa.
Issue 1: Jurisdiction
The Respondent contended the jurisdiction of the Court to hear and determine the application by its Preliminary Objection dated June 21, 2021, seeking a striking out or dismissal of the application. After hearing the parties, the Court decided it was competent to hear the suit and dismissed the Preliminary Objection filed by the Respondent. The Court further held that the suit be heard expeditiously and ordered the Respondent to desist from imposing the ban, sanctions on media houses or arresting, harassing, intimidating and prosecuting the Applicants and concerned Nigerians for the use of Twitter and other social media platforms pending the hearing and determination of the substantive suit.
Issue 2: Contravention of Article 9 of ACHPR and Article 19 of ICCPR by regulating social media and violating the Right to Freedom of Expression, Access to Media and Information.
The Court noted that Article 9 of the ACHPR and Article 19 of the ICCPR provide for the right to freedom of expression without interference. The Court also noted that Article 19 of ICCPR created a derivative right that allows a person to enjoy the right using whatever medium of choice. The Court then stated that the right to freedom of expression guaranteed by Article 19 of the ICCPR could be enjoyed through several media, including social media platforms like Twitter, Facebook, and Instagram. The Court, in particular, stated that “the court will hold that access to Twitter being one of the social media of choice to receive, disseminate and impart information is one such derivative right that is complimentary to the enjoyment of the right to freedom of expression according to the provisions of Article 9(1) & (2) of the ACHPR and Article 19 of the ICCPR”.
Issue 3: Legality of Suspension of Twitter
The Court noted that while Article 9(2) of ACHPR created the right to express and disseminate opinions within the law, Article 9 (1) created the ancillary right to receive information. The Court expressly noted the following as media for expressing or disseminating opinions.
Issue 4: Violation of Right to Fair Hearing by Prosecuting and Punishing without reference to a breach of an extant law.
The Court noted that the Applicants claimed that the acts of the Respondent frequently threaten the Applicants and other Nigerians that use Twitter/and other social media micro-blogging applications with criminal prosecution. The act of suspending Twitter operations in Nigeria violates the principle that there is no punishment without law. The right to a fair hearing, guaranteed under the ACHPR and ICCPR null and void without express reference to Article 7 of the ACHPR. The Court considered whether the respondents violated the right to a fair hearing of the Applicants. In applying the provision of Article 7(2) of ACHPR to prosecute those who continued to use Twitter after it has been suspended.
SERAP v. FEDERAL REPUBLIC OF NIGERIA & UNIVERSAL BASIC EDUCATION COMMISSION (No. ECW/CCJ/APP/0808). In this case, the ECOWAS Court considered whether it had the jurisdiction to adjudicate a claim involving the right to education under the African Charter, even if such a right was arguably non-justiciable in domestic constitutional or statutory law. The complainant initiated the case due to lack of adequate implementation of Nigeria’s Basic Education Act and Child’s Rights Act of 2004. The ruling dealt in detail with the issue of substantive jurisdiction, which involves the issue of justiciability, and the issue of whether the complainant has the legal right to initiate a lawsuit. On these issues, Nigeria argued that the Court lacked jurisdiction to hear the case because it dealt with domestic laws and policy which are not within the subject matter jurisdiction of the Court. Nigeria also argued that the educational objective in the Constitution of Nigeria is non-justiciable and that SERAP lacked standing since it was not directly affected by these laws. The Court dismissed all of these arguments.
On the issue of justiciable rights and substantive jurisdiction, the Court noted that a violation of the right to education under Article 17 of the ACHPR was alleged by the claimants and that, relying on Article 9(4) of the Supplementary Protocol to the treaty establishing the Court and Article 4(g) of the Revised Treaty of ECOWAS, “it is well established that the rights guaranteed by the African Charter are justiciable before this Court.” Article 9(4) of the Supplementary Protocol grants the Court jurisdiction to determine cases of violations of human rights in Member States of ECOWAS while Article 4(g) of the Revised Treaty of ECOWAS incorporated the African Charter on Human and Peoples’ Rights into that treaty. In coming to its ruling, the Court dismissed the Government’s contention that education is “a mere directive policy of the government and not a legal entitlement of the citizens,” concluding that “the contention of the Government that the right to education is not justiciable as it falls within the directive principles of state policy cannot hold.” The Court noted a distinction between the recognition of education within the domestic legal framework of Nigeria and the human right to education in the ACHPR to which Nigeria is a State Party. It went on to say that it “clearly has jurisdiction to adjudicate on applications concerning the violation of human rights that occur in Member States of ECOWAS” and that it “has jurisdiction over human rights enshrined in the African Charter and the fact that these rights are domesticated in the municipal law of Nigeria cannot oust the jurisdiction of the Court.”
In holding that SERAP did indeed have standing, the Court cited the doctrine of action popularis that allows any person or entity to challenge a violation of a public right. Finally, the Court, in part relying on comparative jurisprudence from Bangladesh, India, Ireland, Pakistan, the United Kingdom, the United States, and elsewhere, added that “public international law in general, which is by and large in favour of promoting human rights and limiting the impediments against such a promotion, lends credence to the view that in public interest litigation, the plaintiff need not show that he has suffered any personal injury or has a special interest that needs to be protected to have standing.” Rather, the Court stated, the “plaintiff must establish that there is a public right which is worthy of protection which has been allegedly breached and that the matter in question is justiciable.
HADIJATOU MANI KORAOU v. NIGER, JUDGEMENT NO: ECW/CCJ/JUD/06/08,decided on 27 Octobe, 2008.
In 1996, when Hadijatou was only twelve (12) years old, she was sold to a local tribal chief, El Hadj Souleymane Naroua, for two hundred and forty thousand (240,000) CFA francs. This transaction took place in accordance with customary practice in Niger, called ‘Wahiya’, which allows for young girls, generally slaves, to be acquired to work as a servant and as a concubine. A slave bought under these conditions is known as a ‘Sadaka’ and is regarded by her ‘master’ as being available to engage in sexual relations at any time, day or night. Hadijatou was sexually assaulted by El Hadj Souleymane Naroua for the first time when she was 12 years old. Thereafter, for nearly ten years, Hadijatou suffered psychological and physical abuse, sexual exploitation, hard labour, insults, threats and humiliation, and complete control over her life by El Hadj Souleymane Naroua. During those ten years Hadijatou gave birth to four children, all fathered by El Hadj Souleymane Naroua, two of whom survived.
On the 18th August 2005 Hadijatou was given her ‘Liberation Certificate’ purporting to release her from enslavement. When she tried to leave the household of El Hadj Souleymane Naroua he claimed that she was his wife and was therefore not entitled to leave. It was only through pretending to have to visit her sick mother that she was able to escape. When Hadijatou subsequently got married to Ladan Rabo, and following a complaint by El Hadj Souleymane Naroua that she committed bigamy, she spent two months in jail.
The Court was asked to rule on allegations of violations of a number of Hadijatou’s human rights. It was asked to pronounce on the responsibility of the defendant state in relation to violations of the prohibition on slavery, discrimination on the grounds of gender and social origin, and arbitrary detention.
The judgment is unequivocal in its condemnation of the circumstances of Hadijatou’s life as slavery. The Court sets out, in detail, the arguments put forward by INTERIGHTS on the nature and definitions of slavery in contemporary international practice. It highlights the material and moral elements of slavery. By reference to international conventions and the practice of international criminal tribunals, it signals the exercise of powers normally associated with ownership as well as certain factors of control over the human being, as the key indicators of slavery. It concludes that ‘there can be no doubt that the applicant was held in slavery for 9 years, in violation of the prohibition on this practice’. It should be noted that this is the first decision of the Court on human rights.
FALANA & ANOR v. FEDERAL REPUBLIC OF NIGERIA (2012)
The lst and second appellants were legal practitioners traveling on an official assignment to Togo. They averred that on their way, they were stopped at a checkpoint at the border between Togo and Nigeria, and when they identified theirselves as legal practitioners to the officers, they were allowed access. However, other passers-by and travellers were stopped and delayed, thus violating their freedom to movement as guaranteed by the African Charter on Human and People’s Rights (ACHPR) and the Revised Treaty of the Economic Community of West African States. The parties filed and exchanged brief, oral submissions were taken and a the judgement of the Court was delivered.
The Court per Hon. Justice Hansine N. Donli held that the plaintiffs failed to prove that stop and search by the police, customs and immigration officers constituted a violation of theirs rights to freedom of movement as guaranteed under the various international laws.
5.0 ENFORCEABILITY: ENIGMA SMELLS
Here we are going to see that, while some Member States enforce the judgments of the Court, some have blatantly refused or neglected to enforce the same. This is a bane on the effectiveness and proper functioning of the Court, thus making it a toothless bulldog when placed at par with the national courts. We shall consider one case were the judgment of the Court had been enforced, and another where the judgement of the court fell on deaf ears.
HADIJATOU MANI’s CASE
The challenge in this case now lies in ensuring its implementation. The state has been found in breach of its obligations in respect of slavery and it must now remedy this wrong. The state must now consider how it can give meaningful effect to its international obligations and establish a comprehensive plan of action to this end. The sort of measures that it will need to take to address the problem that the court has highlighted will include capacity building and awareness raising among those judicial and administrative organs of the state that were criticised by the court, as well as a serious programme of investigation and prosecution of all those responsible for slavery. It is also obliged to provide compensation to Hadijatou as ordered in the judgment. The state must notify the ECOWAS authorities of its developments towards effective implementation of this historic binding judgment.
Immediately following the ECOWAS Court’s judgment, the government of Niger committed to respecting the judgment, which it acknowledged was binding on it. On 17 March 2009, the government paid the compensation due to Hadijatou in full. As a result Hadijatou has rebuilt her modest home, which she shares with her mother and her young child, and bought several cows and goats that enable her to be economically self sufficient. She has invested some of the monetary award in savings for her family for the future. The criminal case against her for bigamy, which had been pending throughout the ECOWAS proceedings, has been lifted and she is now a free woman living as part of a family and a community.[25]
Accordingly, some nations have failed to obey and enforce the judgment of the International Court. The recent decision of Agba Jalingos illustrates this enigma.
AGBA JALINGO’s CASE
On the10thof In July 2021, the Guardian newspaper reported that the ECOWAS Court of Justice in Abuja has “ordered the Federal Government to pay a journalist, Agba Jalingo, N30 million as compensation for ill-treating and torturing him while in detention in Cross River state.
Delivering judgment in the suit, yesterday, the court held: “Agba Jalingo was arrested and chained to a deep freezer for about 34 days without being charged to court, brutalised and dehumanised. This action taken on Jalingo’s behalf by SERAP seeks from this court reparation for inhuman treatment and torture meted out to him. We have looked at the evidence before us. There was no answer as to the fact that Jalingo was arrested and illegally detained, brutalised and dehumanised.”[26]
However, the Nigerian government has despised the ECOWAS court’s order to compensate Jalingo within three months of the judgement. Jalingo told the MFWA that his lawyers are still in court to enforce the judgement, hear him; “My lawyers have filed for enforcement of the [ECOWAS] court judgement at the Cross River State High Court. It is on record that they are owing me. Anytime they want to pay me, they should pay,” the journalist said. He, however, said the monetary compensation was not as important as the acquittal of all the charges levelled against him.[27]
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5.0 RECOMMENDATIONS
Whereas a skeletal discourse replete with references, copious in nature have been rendered, it pertinent for purposes of accountability and prosperity to contribute to the growth and stability of the organization. The Economic Community of West African States (ECOWAS) has continued to dominate the sub- regional pace of the international arena, and this has served as a cord, binding and guiding the international relations, rights and obligations we share as Africans nay the world.
The Organization has acted in line with modern day trend by establishing the ECCJ as it’s sole judicial organ with a mandate to pursue. This is a further evidence of the unity and cooperation enjoyed by the league of Nations. Therefore, the following recommendations are necessary in the light of the discussion above.
- COMPLETE ALLEGIANCE BY MEMBER STATES
The enactment of Protocols and treaties is not the end of government in the international arena, indeed, where there’s a wrong, there’s a right. Therefore, Member States must ensure that they bear strict allegiance to the laws, rules and regulations of the organization binding their sub-regional co-existence.
- ESTABLISHMENT OF ENFORCEMENT UNIT
The ECOWAS should establish an enforcement unit, it should be an organ vested with the responsibility of enforcing the judgement of the Courts for and against any Member State in question.
- SANCTIONS
There should also be established an executive order prescribing sanctions for member states that fail to adhere to the judgement of the Court and other international obligations. With this development, each member state would sit up and observe the basics of the organization.
- COLLABORATION WITH NATIONAL ENFORCEMENT AGENCIES
The organization should also partner with the various enforcement agencies of the member states and, if possible, establish liaison offices across boards.
- MORE HUMAN RIGHTS CRUSADES
There should also be an exponential crusade about human rights; on their justiciability, access, eligibility, remedies, and resolutions in the member states.
- ROUTINE CONFERENCES/SEMINARS
Judicial umpires, administrative staffs, and officers of the ECCJ should engage in regular conferences, seminars, talks, and workshops geared towards the enhancement of the Justice delivery system in the Community.
CONCLUSION
In concluding this paper, it must be borne in mind that the acquisition of knowledge is a continuum, it infinite and lives on forever, if there would be an ever. As the world and indeed other continents, continue to make progress on the need to live in peaceful co-existence and harmony, Africans have demonstrated a high level of commitment. In the commity of Nations, we have portrayed a firm reputation for human rights and socio-economic commitment towards the advancement of the continent and the world at large. The international judicial is plausible considering their intervention in affairs across boundaries to ensure stability and relations, however, we must not rest, we still have a long way to go in raising the standards. Therefore, all hands must be on deck, and the leadership of the Member States must ensure a fair and equitable system.
THANKS FOR GOING THROUGH THIS POST; UNDERSTANDING THE JURISDICTION OF THE ECONOMIC COMMUNITY COURT OF JUSTICE AND IT’S ROLE IN PROMOTING COOPERATION, PEACE AND JUSTICE AMONG IT’S MEMBER STATE.
TABLE OF CASES
AGBA JALINGO V. FEDERAL REPUBLIC OF NIGERIA (2021)
FALANA V. REPUBLIC OF BENIN (2012)
HADIJATAOU MANI KARAOU V. NIGER, JUDGEMENT NO:ECW/CCJ/JUD/06/08 , DEIDED ON 27 OCTOBER, 2008.
MANNEH V. GAMBIA (
OLADIPE AFOLABI V. FEDERAL OF NIGERIA (ECW/CCJ/APP/01/03)
SERAP V. FEDERAL REPUBLIC OF NIGERIA & UNIVERSAL BASIC EDUCATION COMMISSION (2008)
SERAP V. FEDERAL REPUBLIC OF NIGERIA (2021)
BIBLIOGRAPHY
Books
Stanley-Idum,M.M., Agaba, .A.,Civil Litigation in Nigeria, 3rd Ed. ,2020. Published by : Renaissance Law Publishers Limited (RC370,992) 20, Association Avenue, Ilupeju-Lagis, Nigeria.
Papers
Nwauche, E.,‘Regional Economic Communities and Human Rights in West Africa and the African Arabic Communities in A. Bosland J. Diescho (Eds), Human Rights in Africa: Legal Perspectives on their Promotion and Protection (Macmillan Education Namibia,Windhoek, 2009), p.318.
Ajala, A.,‘Background to the Establishment, Nature and Structure of the Organisation of African Unity’,/.
Internet
http://www.courtecowas.org/decisions-3/visitedon27thJan,2023.
http://www.ihrda.org/court-of-justice-of-the-economic-community-of-west-africa.lastvisitedon28thofJan,2023.
https://www.interights.org/niger-slavery/index.html
Newspaper
Guardian Newspaper on this day, 10th July, 2021
[1]Mbang Confidence, Esq is a Legal Practitioner with key interest in Litigation, Tech, Energy and Corporate practice. He is a prolific Writer, Rights activist and leader par excellence, having held and exhibited leadership capacities during his undergraduate days and in various youth organizations. He is 1 year old at the Bar, having completed his law school in Kano State, Bagauda campus where he was designated as the Orator of the Year. He is an Associate of the Chartered Institute of Mediators and Conciliators (AICMC), South South Coordinator of the United Organization for Education and Sports Development (UOESD), Special Assistant on Public Affairs to the President, International Human Rights Protection Service, Nigeria (IHRPS) and currently an Associate with Mike Ozekhome’s Chambers (MOC) in Abuja, FCT. He is budding and ready to work for Nation building and leadership advancement.
[2] A. Ajala, ‘Background to the Establishment, Nature and Structure of the Organisation of African Unity’/
[3] The original members of the Community were the Republic of Benin, Burkina Faso, Cote d’Ivoire, the Gambia, Ghana, Guinea, Guinea-Bissau, Liberia, Mali, Mauritania, Niger, Nigeria, Senegal, Sierra Leone and Togo. Cape Verde was admitted in 1978, bringing the membership to 16, but Mauritania withdrew its membership in 2000, bringing the membership back to 15.
[4] Article 2(1), ECOWAS Treaty, 1975
[5]There were 10 paragraphs in this subsection, nine of which covered specific economic and trade goals and policies necessary for economic advancement, and the tenth was an omnibus clause that empowered the Community to undertake “such other activities calculated to further the aims of the Community as the Member States may from time to time undertake.”
[6] E. Nwauche, ‘Regional Economic Communities and Human Rights in West Africa and the African Arabic Communities’ in A. Bosl and J. Diescho (Eds), Human Rights in Africa: Legal Perspectives on their Promotion and Protection (Macmillan Education Namibia, Windhoek, 2009), p. 318.
[7] http://www.courtecowas.org/decisions-3/ visited on 27th Jan, 2023.
[8]Article 3 of the Protocol A/P/1/7/91), See also Article 6 of the Rules of the ECOWAS Community Court of Justice, 2002.
[9] Article 6.1 of the Rules of Procedure
[10] Article 7
[11] Article 3.2
[12] www.ihrda.org/court-of-justice-of-the-economic-community-of-west-africa. last visited on 28th of Jan, 2023.
[13] ECW/CCJ/APP/01/03
[14] M.M. Stanley-Idum (Mrs), J.A Agaba, Ph.D, Civil Litigation in Nigeria, 3rd Ed., 2020. Published by : Renaissance Law Publishers Limited(RC 370,992) 20, Association Avenue, Ilupeju-Lagis, Nigeria.
[15] Ibid
[16]www.courtecowas.org.,
[17] Ibid
[18] Ibid
[19] Ibid
[20]Hadijatou Mani Koraou v. Niger, Judgement No: ECW/CCJ/JUD/06/08, decided on 27 October, 2008.
[21]Article 22.3, 22.4.
[22] www.courtecowas.org/ lasted visited 28th Jan, 2023
[23] Article 19.2
[24]https://www.justice initiative.org/publications/eccj/
[25] https://www.interights.org/niger-slavery/index.html.
[26] https://guardian.ng/news/agba-jalingo-ecowas-court-awards-n30m-damages-against-fg/.
[27] https://www.mfwa.org/nigerian-government-refuses-to-compensate-journalist-a-year-after-ecowas-court-ruling/