20 years of ECOWAS Court of Justice

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 20 years, it has managed to overturn centuries-old tradition of slavery or ‘wahiya’ in Niger, struck a decisive blow for press freedom in 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 has during its first 20 years, held 1224 sessions, handed down 303 judgments and 131 rulings from 583 cases lodged before it, the Chief Registrar of the Court, Mr Tony Anene-Maidoh has said.

Five of these cases were from former presidents Laurent Gbagbo of Côte d’Ivoire, Mamadou Tandja of Niger, Charles Taylor of Liberia, past AU chairperson, Thomas Boni Yayi of Benin and even Hissien Habre of neighbouring Chad. 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 those by individuals. For a court established for the interpretation and application of the Revised Treaty, the annexed Protocols and Conventions as well as settle disputes 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 rue the delays in their state courts. 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 litigant is not anonymous and is not at the same time pursuing the matter in 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 Hön 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, that has culminated in its recent reputation as a court of first and last resort. These include its re-designation from a tribunal to an interstate court and principal legal organ of the Community in 1991; the Revised Treaty which created an ECOWAS Court of Justice in 1993 whose mandate goes beyond settling disputes between states and institutions to include human rights violations and the participation of non-state actors and individuals; the appointment of seven pioneer judges who in 2001 drew up the draft rules of procedure of the Court after the European Court of Justice – but with such modifications that it made the West African court a cause celebre. Crucially, a 2005 amendment implied 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 chambers of 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.

To be continued tomorrow

Jacobs, a former newspaper editor, wrote in from Abuja.