The ECOWAS Court of Justice marked its 20 years of existence with remarkable rulings, verdicts and opinions to show. But, critical stakeholders believe flouting of the community court’s judgments by member-states will not give succours to those in need of justice, ASSISTANT EDITOR BOLA OLAJUWON reports.
The ECOWAS Court of Justice few days ago rolled out the drum to mark its 20 years of existence. The organ of the Economic Community of West African States – a regional integration community of 15 member states in Western Africa – was created pursuant to the provisions of Articles 6 and 15 of the Revised Treaty of the regional organisation.
The court was created after the adoption of the Protocol on the Community Court of Justice in 1991, about 16 years after the ECOWAS itself was formed. The ECOWAS Revised Treaty of 1993 established the Court of Justice as an institution of the regional grouping.
The expansion of the court’s competences from just a mere community court to civil service tribunal, court of human rights and court of arbitration, gave the court an almost universal scope of intervention in many areas with significant increase in the number of cases handled in recent years. It is also seen as the last resort for those who saw national judicial templates as inept to give them justice.
For the people of West Africa with a population of 416,631,763 – based on the latest United Nations estimates – obtaining justice in their individual country is like camel passing through the proverbial eye of the needle.
Still, with the setting up of the ECOWAS Court, the hope of some of those plaintiffs had been lost to inability of many member-states to abide by the court’s rulings.
For instance, the Court of Justice declared the arrest and continued detention of the immediate past former National Security Adviser, Col. Sambo Dasuki (retd), as unlawful, arbitrary and a violation of his right to liberty.
The court ordered that the former NSA be released from the custody of the Department of State Services, whose operatives re-arrested him shortly after he was released from Kuje Prison, Abuja on bail on December 29, 2015.
Dasuki, who was arrested for alleged economic crimes and other offences, was later granted bail by all three courts where he is currently facing charges relating to criminal diversion of funds meant for procurement of arms for fighting Boko Haram terrorists in the North-East.
But, in a ruling on the fundamental human rights enforcement suit filed by Dasuki, the ECOWAS court said it was wrong for the Federal Government to continue to detain him over undisclosed offences after he had been granted bail by different courts, where he was being prosecuted.
The court, in a unanimous judgment of a three-man panel, read by Justice Chijioke Nwoke, also awarded N15 million damages against the Federal Government.
But, despite the Nigerian courts and ECOWAS Court rulings, he remained in the custody of the DSS since he was re-arrested at Kuje prison, before he was finally released after meeting his bail conditions.
Also in 2016, the ECOWAS Court ordered the release of leader of the Islamic Movement in Nigeria (IMN), Sheikh Ibraheem el- Zakzaky and his wife, Zeenah. It described their detention as unlawful and arbitrary. But the government did not obey the order.
The Islamic cleric was arrested in December 2015, following a clash between his followers and the Nigeria Army in Zaria, Kaduna State.
Scores of people, mostly his followers were reportedly killed and buried in a mass grave in the Mando area of Kaduna metropolis.
On July 28, 2021, a Kaduna State High Court freed El-Zakzaky and his wife.
Just like Dasuki’s and El-Zakzaky’s cases, the Nigerian government refused to enforce ECOWAS’ judgments for the provision of free and basic education for Nigerian children as enshrined under chapter two of the Nigerian Constitution, in the case between Socio-Economic Rights and Accountability Project (SERAP) v. Federal Republic of Nigeria & Anor.
The community court on Friday, October 22, 2021, also ordered the Government of Cote d’Ivoire to pay 1,250,000,000 CFA Francs as compensation to Mr. Oumar Diawara, a Congolese resident of Abidjan (the applicant), for the violation of his right to a fair hearing and right to property. A symbolic one Franc was also awarded to him for the moral prejudice he suffered from how the case against him at the domestic court was handled.
In the judgment, which was delivered by Hon. Justice Dupe Atoki, the judge rapporteur in the suit, the court also ordered the Court’s Registry to assess the litigation costs in favour of the applicant.
However, till today, nothing has been heard about the implementation of the court’s decision.
In another case, the ECOWAS Court ordered the Republic of Niger to pay 7,564,250 CFA francs as recoverable costs to the heirs of late General Ibrahim Mainassara Bare, who ruled the country between January 1996 and April 1999, when he was assassinated while boarding an aircraft.
Justice Dupe Atoki, the judge rapporteur who read the order, said the court, having delivered an earlier judgment, had jurisdiction to hear the matter concerning recoverable costs in relation to the court’s judgment No ECW/CCJ/JUD/23/15 delivered on October 23, 2015.
The application, ECW/CCJ/APP/25/13/COSTS, filed on February 4, 2020, by Mr. Chaibou Abdourahaman, lawyer to the 17 heirs of the late General Bare, asked the court to review its judgment No ECW/CCJ/APP/23/15 based on an alleged omission by the court to specify an amount as recoverable costs to be awarded for the proceeding.
Abdourahaman told the court that part of the judgment reads: “The Republic of Niger shall bear the costs”, without specifying an amount, which resulted in the presentation of their incurred expenses to the court, seeking its order in this regard.
Still, the Niger Republic has not implemented the court’s decision.
Following the cold attitude of the ECOWAS member-states, human rights lawyer Femi Falana called on President Muhammadu Buhari and other leaders to obey court orders in the interest of political stability and justice.
He said the president should also comply with a court order compelling the Federal Government to release the details of stolen assets recovered so far.
“Buhari and ECOWAS leaders should comply with judgments and orders of municipal courts and regional tribunals in the interest of public accountability and political stability,” Falana said.
Lack of national authorities to implement rulings
Despite its achievements in the last six years, only six countries of the 15 member states met the pre-requisite for obeying the court’s rulings. All countries ought to have set up national authorities to implement its rulings.
The court’s president, Justice Edward Amoako Asante (Ghana), listed Guinea, Nigeria, Mali, Burkina Faso, Togo and Ghana, as the six countries that had set up a competent authority to implement the court rulings as stipulated in the protocol. But still, Nigeria refused to implement most of the cases adjudicated upon by the court.
The other member-countries yet to set up such authority include: Benin, Cape Verde, Côte d’Ivoire, The Gambia, Guinea Bissau, Liberia, Niger, Senegal and Sierra Leone.
The poor rate of compliance with the court’s judgments, currently standing at about 50 per cent, is of grave concern to the court, Justice Asante said.
“We regret that only six member states have appointed the competent national authorities for the enforcement of judgments of the court in their respective domains.
“These are the Republic of Guinea, Nigeria, Mali, Burkina Faso, Togo and Ghana. We will continue to appeal for the remaining members to do the needful,” he said.
But, the Speaker of the ECOWAS Parliament, Dr. Sidie Tunis, called on presidents and leaders of West Africa states to ensure obedience to the community court’s ruling.
Tunis said the attitude of selective adherence to the ruling of the court was also diminishing its reputation.
Lawyers to African govts: obey courts’ decisions
Lawyers from across Africa have urged governments of countries in the continent to learn to give effect to decisions of continental and sub-regional courts and tribunals as a way of bolstering democracy and rule of law in the continent.
The lawyers, under the aegis of the Pan African Lawyers Union (PALU) and other stakeholders deplored the growing practice where countries in the continent treat decisions of African international courts and tribunals with scant regard.
