A Port Harcourt-based lawyer, Chief Festus Ogwuche and 24 other citizens of the Economic Community of West African States (ECOWAS), had dragged the Federal Government of Nigeria, Cote d’Ivoire and 13 other member states before the African Court of Human and Peoples’ Rights sitting in Arusha, Tanzania.

In the application marked 005/2024 and dated May 23, 2024, the applicants sought an interim order of court restraining the respondents from uttering, amending or varying the provisions of the Revised ECOWAS Treaty, the two Protocols on the establishment of the ECOWAS Court of Justice and the rules of practices and procedures of the court, pending determination of the substantive action.

They also urged the court to restrain the defendants from deliberating and effectuating the proposals to vary the jurisdictional essence of the Court of the Economic Community of West African States (ECOWAS Court) in terms of competence and admissibility over cases brought before it by community citizens.

The application, which was brought pursuant to Articles 35 and 28 (b)(c)(d)(f) of the protocol to the statute of the African Court of Justice and Human Right, was necessitated by the alleged move by respondents to amend and vary the core ingredient of jurisdiction of the ECOWAS Community Court of Justice in a manner that will make the direct access of citizens to the court for the enforcement of fundamental rights impossible except through the mechanism that requires the exhaustion of local remedies.

The applicants held that the status of the ECOWAS court must be preserved in the manner it used to exist at the date of initiation of suit to enable it to sail appropriately, and to keep the matters in status quo for the due determination of the complaints pending the determination of the substantive action before the court.

They alleged that following an extraordinary summit of the Heads of States and Governments, the Chief Justices of ECOWAS member States, acting in their capacity as the “Community’s Judicial Service Commission”, proposed an amendment to Protocol A/P.1/7/79 on the ECOWAS Community Court of Justice to incorporate the requirement of exhaustion of domestic remedies as a prerequisite for the admissibility of cases.

The applicants also contended that the proposal to incorporate the requirement for the exhaustion of domestic remedies would procedurally and substantively deprive them of their fundamental rights enshrined in the court’s charter and other international human rights instruments.

They also alleged violation of the obligation of states to recognise and implement the rights, duties and freedoms enshrined in the Charter, as provided under Article 1; the right to have one’s cause heard, including the right to appeal, presumption of innocence, legal defence and trial within a reasonable time as provided under Article 7 of the Charter; the right to self-determination and to freely determine the status of the socio-political, economic and cultural development as protected under Article 20(1), and the right to an effective remedy for violations of fundamental rights as provided under Article 3 of the International Covenant on Civil and Political Rights (ICCPR).

The Court in its recent ruling however held that out of all the respondents cited, only Burkina Faso, Ghana, Niger, The Gambia, Mali and Guinea, are parties to the Protocol following their ability to deposition the Declaration as enshrined in Article 34(6) of the Protocol, which provides that The Court shall not receive any petition under Article 5(3) involving a state party, which has not made such a declaration.

Meanwhile, Nigeria, Togo, and Senegal are parties to the Protocol but are yet to deposit the Declaration and consequently, the court manifestly lacked personal jurisdiction over them.

Having struck out Benin, Côte d’Ivoire, Cabo Verde, Guinea, Liberia, Nigeria, Togo, Senegal and Sierra Leone as respondents to the matter, the court held that the application shall proceed only in respect of the Burkina Faso, The Gambia, Ghana, Guinea Bissau, Mali and Niger, which have duly ratified the Protocol and deposited the Declaration.

Consequently, the application was renamed, Chief Festus A. Ogwuche & 24 others v. Burkina Faso and five other States.