Since its existence, the decisions of the ECOWAS Court of Justice have been disobeyed by member-States that established it. Rather than seek means of enforcement and compliance, there is a fresh push for mandatory internal resolution of disputes before approaching the ECOWAS court. Stakeholders, however, argue that any subtle attempt to alter the jurisdiction of the court will have implications on regional justice delivery, BRIDGET CHIEDU ONOCHIE reports.

Some lawyers recently called for citizens’ intervention to save the Community Court of Justice (CCJ) also known as ECOWAS Court from moves to whittle down its powers. Established in 1991 with an office in Abuja, it has accepted submission of individual complaints for human rights violations and other sundry matters since 2005.

Chief Justices from the regional bloc also known as the Judicial Council, however, during their meeting held February in Abuja, deliberated among other issues, the poor implementation of the decisions of the Community Court of Justice. They had blamed the situation on the court’s admissibility of complaints by citizens before exhausting domestic remedies in their respective countries.

They consequently constituted a sub-committee comprising their colleagues from Cape Verde, Liberia, Sierra Leone, Senegal and Togo for the review of treaties and protocols setting up the court. The intention was to amend the protocols so that admissibility of complaints by the court would be subject to citizens’ exhaustion of domestic remedies.

Non-enforcement of CCJ’s decisions has constituted a serious threat to the regional court in recent years. A recent report revealed that a total of 150 judgments passed by the court are yet to be enforced by member-countries. Of this number, Nigeria topped the list with 43 unenforced judgements, followed by the Republic of Togo with 23 and Guinea with 14.

Ironically, records also showed that Nigeria had the highest record of compliance until 2015 when former President Muhammadu Buhari came on board and decided to treat the court with utmost disdain. Sadly, other countries in the bloc joined to deliberately ignore the court as leeway to perpetrate actions that are contrary to the community text.

Lawyers and rights activists have therefore reacted to the move by the regional Judicial Council on the ground that altering the rules on the admissibility of applications to the court by the inclusion of the pre-requisite of exhaustion of local remedies is not the appropriate mechanism of ensuring compliance by state entities to the court’s orders and judgments.

To them, such a decision will not enhance the status or its organic representation beyond the position member-states has placed it. The protocol establishing the court empowers it to consider cases brought by individuals, corporate bodies and even member states’ national courts who may request to refer an issue related to the interpretation of ECOWAS agreements to it.

According to the protocol establishing it, there is no need for exhaustion of domestic remedies before applying to the court. However, applications cannot be made to the court while the same matter is pending before another international court.

Also, the decisions of the Court are final and binding under the 1991 Protocol, which stipulates that member states and ECOWAS institutions must take all measures necessary to ensure execution of the Court’s decision.

All these notwithstanding, the Chief Justices would be reconvening in Abuja between May 6 and 7 to deliberate on the reports and recommendations of the Committees.

As the clock ticks, there is fear that CCJ may fall under the sledge hammer of the Judicial Council. After all, of what use is a court whose decisions are not enforced. Just like the African Court for Human and People’s Right, there is no mechanism to punish defaulters.

As slowly as the national judicial system operates, many may align with it rather than financing a regional court that is neglected by the same countries that set it up.

But there is a clarion call to resist any move to whittle down the power of CCJ considering its quick dispensation of justice. Some lawyers admonished that the court should be strengthened by entrenching a mechanism for enforcing compliance.

“This is why citizens of the sub-region have a duty to resist them,” said a Nigerian rights activist, Chidi Anselm Odinkalu. He added that the move amounts to killing CCJ with an effusion of high judicial attention. He expressed worries that cases linger in court indefinitely except those which affect senior politicians to whom most Chief Justices seem beholden.”

Describing ECOWAS Court as a judicial miracle in West Africa, Odinkalu noted that its judgments are clear and understandable, while litigants are treated with seriousness and deserving attention. According to him, the court that is about to go down is everything that the national court of the member states is not.

“It is, of course, a misconception to take the machete of exhaustion of domestic remedies to a regional court of Justice. Imposing the doctrine on the Court of Justice will render it both irrelevant and impotent,” he said.

In his reaction, a Senior Advocate of Nigeria (SAN), Jibrin Okutepa, wondered why the court was established in the first instance, if its decisions are not to be obeyed and citizens have to go through the entire rigours of local courts before taking their grievances to the court. According to him, the implication of that move is the dashing of the “theoretical hope of quicker justice delivery in the region.”

“I called it a theoretical hope because for me, it is one thing to get judgment, it is another thing to get the fruit of the judgment, and until judgment is obeyed, the fruit of that judgment has not been gotten. So, it means that the first layer which is the theoretical hope of quicker justice would be dashed. The disadvantage of the proposal is that if poor peasants have been wronged and they decide to get justice quickly in the regional court but they need to exhaust internal remedies first, it means they have to wait for several years.

“If this becomes the case with the ECOWAS Court, will it then become a review committee of the judgments of the member countries’ apex courts? The Nigerian constitution made the Supreme Court the final court of the land. So, if the Nigerian Supreme Court gives a judgment, will ECOWAS court be an appellate court to the decisions of member countries’ courts? How logical is this proposal?” He asked.

In practical reality, the proposal has already killed the attainment of justice before the conception, he said. Such a proposal coming from Chief Justices, Okutepa said, is a suggestion that there should not be an ECOWAS court because the aim of justice is not to put a bottleneck on the path of justice.

“Any suggestion that denies quicker justice to an African country is an ill-motivated suggestion and anti-people. Why shouldn’t we be ready to obey the decisions of the court that we all agreed should be set up?” Okutepa asked.

A Port Harcourt-based rights activist, Festus Oguche, noted that the power of the court has flowed freely in Nigeria until recently. For him, the proposal fell short of the longstanding target of building an effective regional judicial institution that will protect and preserve the fundamental rights of community citizens against violation by member states.

Oguche feared that the judicial system in the region is generally undermined and prone to undue political interference and manipulation in a manner that substantially lowered their judicial values, operational autonomy and independence, the reason for supranational judicial mechanisms such as the ECOWAS court.

According to him, the court has so far evolved strongly to meet community citizens’ demands as an alternative to failing institutions in member states as it provides an alternative to citizens that desire greater effectiveness in justice delivery.

“To introduce the requirement for exhaustion of local remedies as pre-requisite to admissibility of complaints by the court entails redefining the entire gamut of the community’s legal order and jurisprudence, and capsizing the massive case law that has fully developed at this stage.

“That obviously will be counterproductive as it will set the advancements and improvements so far made in the community’s legal texts and the state of human rights within the region backwards and destroy the legacies established since the treaty of 1975.

“As far as we are concerned, the issue of jurisdiction and admissibility form the core mandate of the court under the African Charter and cannot unilaterally be altered by member states and their institutions without the indulgence of the community citizens,” Oguche declared.

He described as embarrassing the act of calling the bluff of the court by the host country. “For instance, it was the Tanzanian government that firstly made the move to withdraw from the African Court on the simple reason that one of its decisions was not favourable to it,” he said.