As the ECOWAS Court of Justice Turns 20

Olu Jacobs

The ECOWAS Court of Justice has become one of the crown jewels of the regional body’s integration process, fielding petitions from plebeians and gentry alike, as former slaves and former presidents go there to seek judicial redress.

In the last twenty years, it has managed to overturn centuries-old tradition of slavery or ‘wahiya’ in Niger, struck a decisive blow in support of press freedom in The Gambia, awarded 10 million francs as compensation to a retired school teacher for human rights violation in Benin, and ruled against a sitting president for banning twitter in Nigeria.

Beyond these highlights, the Court, according to its Chief Registrar, Tony Anene-Maidoh, has during its first twenty years, held 1246 sessions, handed down 303 judgments and 131 rulings from 583 cases lodged before it.

Four of these cases were from former presidents Laurent Gbagbo of Côte d’Ivoire, Mamadou Tandja of Niger, Charles Taylor of Liberia, and past AU chairperson, Thomas Boni Yayi of Benin. These men, like hundreds of other litigants, had gone to ask the ECOWAS Court to secure their human rights, rights they had themselves denied citizens when they held power for a combined 40 years. Here, the vagaries of fate were compounded by irony for none of these men cared to fully enforce the rulings of the Court while in office, none of them gave it any real chance.

To be fair, the Court had shown no sign of its shimmering status in those years of humble beginnings. In the first five years, from 2001 to 2005 when the original protocol on the Court was amended, only two cases were filed with the Court, and they by individuals. For a court established expressly to provide advisory opinion on Community law and its violations by Member States, and settle dispute between ECOWAS institutions and their officials, not one Member State or institution filed a single case, or even sought for an advisory opinion, in the aforementioned period. To all intents and purposes, the Court was a white elephant in that early period of its evolution.

Everything changed on January 19, 2005 with the implementation of the now legendary Supplementary Protocol A/SP.1/01/05 which gave the Court “jurisdiction to determine cases of violations of human rights that occur in any Member State,” and confers on the Court “the power to hear, inter-alia, cases relating to the violations of human rights.”

Suddenly, this paradigm shift in its mandate, which broadly means that the Court now has jurisdiction to act as a Community Court, an Arbitration Tribunal, an ECOWAS Public Service Court and, more critically as events would show, a Human Rights Court, catapulted it to new heights, and into new hearts.

There is no doubt that the centerpiece of the ECOWAS Court of Justice, it’s top draw, so to speak, is its role as a human rights court. In a region notorious for showing scant regard for individual rights and freedoms, the Court became an arbiter of repute for 300 million people who have come to distrust their state courts and rue the lack of integrity therein. In time, the Community Court’s reputation began to grow following landmark rulings on jurisdiction that has jolted Africa’s jurisprudence, an easy accessibility that allows it to consider any case of abuse perpetrated by a Member State – as long as the action is not anonymous and the same matter is not being pursued at the same time before another international court.

The Court’s credibility was further enhanced by the integrity of its judges whose fair and decorous rulings have expanded the definitions of human rights and established their competence to hear cases of abuse.  In Moussa Leo Keita V. Republic of Mali, the Court ruled that “simply clothing a claim with an allegation of human rights made it necessary for the Court to act pursuant to Article 9(4) of the Supplementary Protocol.” 

According to the president of the Court, the Hon Justice Edward Amoako Asante whose tenure, which began in 2018, oversaw the largest traffic of litigants, “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 recognized the evolving ECOWAS human rights regime.…with all humility, the ECOWAS Court of Justice is a source of pride to our community.”

Several factors account for the Court’s current successes. True, it had always been part of the original institutions planned for the Community in1975 when ECOWAS was created by the Treaty of Lagos ‘to promote cooperation in all fields of economic activity.’ However, it was a number of policies and protocols, each deepening the Court’s ability to function as an integrative but dynamic organ, which has culminated in its recent reputation as a court of first and last resort. Crucially, a 2005 amendment allows that you do not have to exhaust domestic remedies before approaching the ECOWAS Court, meaning that the fact that you didn’t first go through your local court does not preclude your case from been heard by the Community Court. Suddenly, cases that would have lagged for years in domestic courts, are been timeously seen off by the ECOWAS Court of Justice.

In no time this created a system of competing competences, giving citizens liberty to choose where to take their demands, making the Court both an alternative and a final court for millions who would have suffered to find justice in the notoriously slow courts all over Africa, due to sundry exigencies.

Moreover, in 2006 ECOWAS began to shift its focus from states to individuals and its institutions de-emphasised broad development goals for more accessible goals that directly target citizens. The whole aim was to “endow the community with greater supranational powers,” and transform it from “an ECOWAS of States to an ECOWAS of People,” for more effective integration.

One of the first beneficiaries of these new practices was the Community Court which became even more important to the realization of these goals, and more accessible. In 2007, it began to hold external sessions in Member States, outside its Abuja base, in line with Article 26(2) of the 1991 Protocol which allows that “where circumstances or facts of the case so demand, the court may decide to sit in the territory of another member state.”

It is perhaps instructive that two of its more famous rulings which changed the face of jurisprudence happened in these external sessions. In the case between Moussa Leo Kaita v the Republic of Mali held in Bamako, Mali, the Court established for all intents and purposes, it’s jurisdiction over cases of human rights abuse in any part of West Africa. And in the now world famous case filed by Hadijatou Mani Karaou, sold at the age of 12 and repeatedly sexually abused for years, against the government of Niger, the Court ruled that: “Ms. Hadijatou Mani Koraou was a victim of slavery and that the Republic of Niger is responsible because of its administrative and judicial authorities’ inaction; Accepts Ms. Hadijatou Mani Koraou’s request for reparation for the harm suffered and grants an all-inclusive compensation of ten millions cfa francs”.

It was a landmark decision which is now binding on Member States, especially nations like Mali, Burkina Faso and Niger where the practice is widespread.

“We are law-abiding and will respect this decision,” Mossi Boubacar, a legal official for Niger’s government, told Reuters.

Alas, not all judgments of the Court have been as well-received or effective, and ECOWAS Court’s judges and human rights lawyers and activists constantly decry the effects of non-compliance with the court’s decisions. Member states frequently fail to take necessary measures to ensure compliance, as Femi Falana noted at an International Conference held on the theme: ECOWAS Court: Achievements, Challenges and Prospects hosted by the ECOWAS Court of Justice in Lome, Togo, “It is common knowledge that the rate of compliance with the judgments of the court is embarrassingly low,” he said.

President of the court concurs, complaining of the “30 percent unsatisfactory rate of compliance of the Court’s decisions.”

Still, there is no doubt that the Court has made tremendous inroads in advancing the course of justice on the continent. Some of its decisions over the rights to education, (SERAP v Federal Republic of Nigeria); the necessity for due process (Ebrimah Manneh v Republic of The Gambia); the rights of women and children (Amouzou Henry v Republic of Côte d’Ivoire) the illegality of non-retroactive penal law (Hissein Habre b. Republic of Senegal) and many others diligently prosecuted by SERAP, have had a telling effect on governance and stoked the desire of states to do better in the face of peer scrutiny from other members of the Community.

 Laurence R. Helfer, distinguished professor of international law at Duke University in Durham, North Carolina and a leading expert in international human rights law and institutions, including UN human rights treaty bodies and the design and effectiveness of international and regional human rights court, noted that poor noncompliance does not automatically translate to failure or lack of effectiveness. “International rules (or rulings) with high compliance rates may be entirely ineffective, whereas those with low compliance rates may be quite effective if they engender some modification of state behaviour.”

Moreover, notes Olisa Agbakoba, prominent human rights activist and former president of the Nigerian Bar Association, “Article 77 of the ECOWAS Revised Treaty empowers the authority of heads of state and government of ECOWAS to impose certain sanctions on any Member State who fails to fulfill its obligations to the Community through suspension of new community loans or assistance, suspension of disbursement on on-going community projects or assistance.”

As the years roll by there is no doubt that compliance will improve and the influence of the court can only grow bigger with the Court’s recent resort to holding virtual sittings to cut down on the inconvenience of litigants traveling all the way to Abuja for court sessions. Such uncommon accessibility has made the Court even more popular amongst the people of West Africa.

With all the sessions now being live-streamed, a decision the present college of judges took after Covid-19 held up sittings for whole six months, the president of the Court, Hon Justice Asante said, it is obviously ”evidence that the Court is making progress in deploying technology towards reaching out to more of the region’s citizens.”

As he told reporters last year in Ghana, “The Court is owned by all of us and therefore everybody must benefit from it.”

There is no doubt that his headship of the Court has been invaluable in making those benefits available for millions of people.

Jacobs, a former newspaper editor, wrote from Abuja.