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Critical Issues in the Human Rights Mandate of the ECOWAS Court of Justice

Published online by Cambridge University Press:  04 March 2010

Solomon T Ebobrah
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Abstract

A new opportunity for international human rights litigation in West Africa was presented in 2005 when the Economic Community of West African States adopted a protocol to empower its judicial organ, the ECOWAS Community Court of Justice, to determine cases of human rights violation that occur in ECOWAS member states. Since then, several human rights claims have been brought before the court. However, critical questions concerning the legality of the new mandate and the suitability of the court to exercise a human rights jurisdiction have lingered. Beginning with an inquiry into the foundation within ECOWAS for the exercise of a human rights jurisdiction, this article analyses the legitimacy of the human rights mandate of the ECOWAS court and interrogates crucial issues relevant to the effectiveness of the mandate. The article suggests ways to enhance execution of the mandate and concludes with a call for careful judicial navigation in the exercise of the court's expanded jurisdiction.

Type
Research Article
Information
Journal of African Law , Volume 54 , Issue 1 , April 2010 , pp. 1 - 25
Copyright
Copyright © School of Oriental and African Studies 2010

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References

1 The ECCJ was established by Protocol A/P1/7/91 which was adopted and entered into force provisionally in 1991. The court was constituted in December 2000 and became functional in January 2001 with the appointment of judges.

2 See art 39 of Protocol A/SP1/12/01 on Democracy and Good Governance Supplementary to the Protocol Relating to the Mechanism for Conflict Prevention, Management, Resolution, Peacekeeping and Security.

3 Supplementary Protocol A/SP.1/01/05 Amending the Protocol (A/P1/7/91) Relating to the Community Court of Justice was signed and entered into force in January 2005. Further amendments to the structure of the ECCJ were introduced by Supplementary Protocol A/SP.2/06/06 of 14 June 2006 (2006 Supplementary Protocol) and Supplementary Regulation C/REG.2/06/06 of 13 June 2006.

4 See the new art 9(4) in art 3 of the Supplementary Court Protocol.

5 Art 10(d) in art 4 of the Supplementary Court Protocol.

6 From 2001 to 2004, only one case, Olajide Afolabi v Nigeria suit no ECW/CCJ/APP/01/03, came before the court. Since then and as at May 2008, the court had delivered about 15 judgments, three cases were awaiting judgment while another 13 cases were pending. see Anene-Maidoh, T “Remarkable progress in the judicial activity of the ECOWAS court” (2008) 1 Court Bulletin (Quarterly publication of the ECCJ) 15Google Scholar.

7 Alston, P and Weiler, JH “An ‘ever closer union’ in need of human rights policy” (1998) 9 European Journal of International Law 658 at 660CrossRefGoogle Scholar.

8 See generally Reparation for Injuries Suffered in the Service of the United Nations (advisory opinion of 11 April 1949) (Reparation Case) (1949) ICJ Reports 174.

9 Rama-Montaldo, M “International legal personality and implied powers of international organisations” (1970) 44 British Yearbook of International Law 111 at 123Google Scholar.

10 Id at 143.

11 Art 2 of ECOWAS Protocol A/P.1/5/79 Relating to Free Movement of Persons, Residence and Establishment.

12 See arts 1, 3 and 7 of the Supplementary Protocol A/SP.1/7/85 on the Code of Conduct for the Implementation of the Protocol on Free Movement of Persons, the Right of Residence and Establishment, which defines fundamental human rights in terms of the Universal Declaration on Human Rights. Supplementary Protocol A/SP.1/7/86 on the Second Phase (Right of Residence) of the Protocol on Free Movement of the Persons, the Right of Residence and Establishment defines human rights in terms of migrant workers and the Conventions of the International Labour Organization (ILO).

13 Declaration A/DCL.1/7/91 of Political Principles of the Economic Community of West African States.

14 Para 4 of the preamble to the Revised Treaty.

15 See id, art 4(g).

16 Id, art 56(2). It is significant to note that all ECOWAS member states have signed and ratified the African Charter.

17 Id, art 59. See also id, art 66(2)(c) on the right of journalists.

18 Art 2 of the Protocol Relating to the Mechanism for Conflict Prevention, Management, Resolution, Peace-keeping and Security is instructive in this regard. Also see paras 7, 8 and 11, as well as arts 4(h), 22 and 35 of Protocol A/SP1/12/01 on Democracy and Good Governance Supplementary to the Protocol relating to the Mechanism for Conflict Prevention, Management, Resolution, Peacekeeping and Security. Ample references to human rights instruments appear in these provisions.

19 Ahmed, T and de Jesus Butler, I “The European Union and human rights: An international perspective” (2006) 4 European Journal of International Law 771 at 776CrossRefGoogle Scholar.

20 Rama-Montaldo “International legal personality”, above at note 9 at 114.

21 See art 3(2)(o) of the Revised Treaty and art 308 of the Treaty of the European Union.

22 Rama-Montaldo “International legal personality”, above at note 9 at 115.

23 Id at 117.

24 Art 31(2) of the Vienna Convention on the Law of Treaties (1969) 8 International Legal Materials 679 at 692.

25 Rama-Montaldo “International legal personality”, above at note 9 at 154.

26 Examples of such subsequent commitments can be in the form of other ECOWAS legislating acts or implementing action by community organs and institutions.

27 Seyersted, F “Objective personality of intergovernmental organisations” (1964) 34 Nordisk Tidsskrift for International Ret 3 at 29Google Scholar.

28 Id at 29–30.

29 See generally Quinn, G “The European Union and the Council of Europe on the issue of human rights: Twins separated at birth?” (2001) 46 McGill Law Journal 849 at 858Google Scholar. Also see Alston and Weiler “An ‘ever closer union’”, above note 7 at 660.

30 The ECCJ is clothed with an advisory jurisdiction by art 10 (now art 11) of the 1991 Protocol on the Court of Justice.

31 Art 9(1) of the 1991 Protocol on the Court of Justice.

32 Id, art 9(2)(3).

33 Above at note 6.

34 In Olajide, violations were alleged of the right to free movement in art 3(iii) of the Revised Treaty and the right to freedom of movement under the African Charter based on the provisions of art 4(g) of the Revised Treaty. Reliance was placed on the Nigerian domesticated statute of the African Charter.

35 See Viljoen, FInternational Human Rights Law in Africa (2007, Oxford University Press) at 507CrossRefGoogle Scholar. Viljoen argues that a more activist court would have taken a different position.

36 Ebobrah, S “A rights-protection goldmine or a waiting volcanic eruption: Competence of, and access to, the human rights jurisdiction of the ECOWAS Community Court of Justice” (2007) 2 African Human Rights Law Journal 307 at 312–21Google Scholar.

37 Art 10(d) in art 4 of the Supplementary Court Protocol.

38 Art 19(2) of the 1991 Protocol of the Court. In the case of Ugokwe v Nigeria, suit no ECW/CCJ/APP/02/05 (unreported) (Ugokwe), the ECCJ proclaimed (at para 32 of the judgment) that it is the first and last court in community law.

39 Ugokwe, ibid.

40 New art 10(f) in art 4 of the 2005 Supplementary Protocol.

41 See Ugokwe, above at note 38, and the case of Kéïta v Mali, suit no ECW/CCJ/APP/05/06 (unreported) (Kéïta), at para 31. In Ugokwe, the ECCJ stressed that hearing appeals against decisions of national courts does not form part of its powers and it cannot overturn the decision of a national court. This position was emphasized in Kéïta. On the other hand, the court does not seem to have had difficulty hearing cases not previously heard by national courts or, at least, in which the issue in contention had not been addressed by a national court. This latter caveat is necessitated by the fact that, in the recent case of Koraou v Niger, suit no ECW/CCJ/APP/08/08 (unreported) (Koraou), the court entertained the case even though aspects of the fact had previously been tried in a national court.

42 See Ebobrah “A rights-protection goldmine”, above at note 36, on the inapplicability of the exhaustion of local remedies. Interviews with ECCJ judges and officials indicate that the court sees the non-inclusion of that requirement as a renunciation of the rule by ECOWAS. See “Absence of exhaustion of local remedies before an international court: Omission or renunciation?” (2008) 1/1 ECOWAS Court Bulletin 22 for one such interview.

43 New art 3 in art 2 of Supplementary Protocol A/PS.2/06/06 amending art 3 paras 1,2 and 4, art 4 paras 1,2 and 7, and art 7 para 3 of the Protocol of the Community Court of Justice.

44 Besson, S “The European Union and human rights: Towards a post-national human rights institution?” (2006) 6 Human Rights Law Review 328 at 341CrossRefGoogle Scholar.

45 Compare with art 31 of the Interim Rules of the African Court on Human and Peoples' Rights (on file with the author).

46 See the Reparation Case, above at note 8.

47 Under ECOWAS's new legal regime introduced in 2006–07, ECOWAS legislative instruments should apply directly in member states without the need for protocols and treaties.

48 Besson “The European Union and human rights”, above at note 44 at 353.

49 Stever, T “Protecting human rights in the European Union: An argument for treaty reform” (1996–97) 20 Fordham International Law Journal 919 at 941–42Google Scholar.

50 Ahmed and de Jesus Butler “The European Union and human rights”, above at note 19 at 773.

51 Lyons, C “Human rights case law of the European Court of Justice, January 2003 to October 2003” (2003) 3 Human Rights Law Review 323 at 344CrossRefGoogle Scholar.

52 Besson “The European Union and human rights”, above at note 44 at 344.

53 Kingston, J “Human rights and the European Union - An evolving system” in Lucey, MC and Keville, C (eds) Irish Perspectives on EC Law (2003, Round Hall) 271 at 275Google Scholar.

54 Ibid. See also Holmes, J “Human rights protection in European Community law: The problem of standards” in Ferrer Beltran, J and Narvaez Mora, M (eds) Law, Politics and Morality: European Perspectives II (2006, Duncker & Humblot) 157 at 160Google Scholar.

55 Art 59 of the Revised Treaty. The article is drafted in rights language, as against most other provisions which comprise statements that states agree to co-operate for set purposes.

56 See for example Ugokwe, where the alleged violation concerned fair hearing relating to national elections. In Kéïta, the alleged violation was based on an alleged refusal by the state party to compensate for damage to art work.

57 Manneh v The Gambia, suit no ECW/CCJ/APP/04/07 (unreported).

58 Koraou, above at note 41.

59 New art 24 of the Court Protocol (in art 6 of the 2006 Supplementary Protocol of the ECOWAS Community Court of Justice) provides that ECCJ decisions shall be submitted to the relevant member state for execution “according to the rules of civil procedure of that Member state”.

60 White, R “The Strasbourg perspective and its effect on the Court of Justice: Is mutual respect enough?” in Arnull, A, Eeckhout, P and Tridimas, T (eds) Continuity and Change in EU Law (2008, Oxford University Press) 139 at 155CrossRefGoogle Scholar.

61 Tizzano, A “The role of the ECJ in the protection of fundamental rights” in Arnull, , Eeckhout, and Tridimas, (eds) Continuity and Change, id 125 at 126Google Scholar.

62 Ugokwe, above at note 38 at para 32.

63 Ibid.

64 Kéïta, above at note 41 at para 31.

65 Id at para 27.

66 A 2009 decision of the High Court of Zimbabwe in Etheredge v The Minister of State for National Security and Another HC 3295/08 with respect to the Southern African Development Community (SADC) Tribunal illustrates this danger.

67 Art 9(4) provides that “the Court has jurisdiction to determine cases of violation of human rights that occur in any member state”.

68 Art 66 of the Revised Treaty.

69 See generally Poiares Maduro, M “Striking the elusive balance between economic freedom and social rights in the EU” in Alston, P (ed) The EU and Human Rights (1999, Oxford University Press) 449Google Scholar.

70 Art 56 of the Revised Treaty.

71 The challenge here would be that not all ECOWAS member states have ratified all the relevant ILO conventions.

72 Kéïta, above at note 41 at para 27.

73 Ugokwe, above at note 38 at para 29.

74 Kéïta, above at note 41; Essien v The Gambia, suit no ECW/CCJ/APP/05/05 (unreported) (Essien); and Karaou, above at note 41.

75 Essien, ibid.

76 Karaou, above at note 41.

77 Ibid.

78 See the Supplementary Protocol on Democracy and Good Governance (Protocol A/SP12/01 of 2001).

79 See for example Essien, above at note 74, where the court focused on whether the state had failed to respect the right to equal pay for equal work.

80 SERAC and Another v Nigeria (2001) African Human Rights Law Reports (AHRLR) 60.

81 The South African Constitutional Court is famous for its decisions in cases such as Grootbroom v South Africa (2000) 11 BCLR 1169 in which economic, social and cultural rights were litigated.

82 Koraou, above at note 41.

83 Ahmed and Butler “The European Union and human rights”, above at note 19 at 796.

84 Ukor v Laleye, suit no ECW/CCJ/APP/01/04 (unreported).

85 Ugokwe, above at note 38.

86 Essien, above at note 74.

87 Kéïta, above at note 41.

88 Chukwudolue and Seven Others v Senegal, suit no ECW/CCJ/APP/07/07 (unreported).

89 Karaou, above at note 41.

90 Quinn “The European Union and the Council of Europe”, above at note 29 at 857.

91 The ECCJ recognizes this, as indicated by the responses of the ECCJ bureau to questions posed by the author at a meeting facilitated by the Danish Institute for Human Rights in November 2008 at Abuja, Nigeria.

92 This position was also advocated by the vice president of the ECOWAS court during the November 2008 meeting. For him, the human rights competence of prospective appointees should be taken into consideration, but not be expressly stated as a criterion for appointment.

93 Judges and staff of sub-regional courts seem to agree on the need for capacity building programmes. This arose both in the meeting with the bureau and staff of the ECOWAS court and at a programme facilitated by Interights at Abuja in November 2008.

94 A proposed appellate division of the ECCJ is still awaited. An interview with the ECCJ in November 2008 indicated that a consultant was working on modalities for the appellate division.

95 The jurisprudence of the African Commission is clear on this point. See for example Media Rights Agenda and Others v Nigeria (2000) AHRLR 200 at para 50.

96 This could be similar to the European Charter of Fundamental Rights. There have been moves in East Africa to adopt a sub-regional human rights instrument while SADC already boasts a human rights instrument of sorts.

97 Viljoen International Human Rights Law in Africa, above at note 35 at 500.