This contribution is by Dr. Apollin Koagne Zouapet. He is currently a Judicial Fellow at the International Court of Justice, and holds a Ph.D. from the University of Geneva, and is holder of the Diploma of The Hague Academy of International Law.
The ECOWAS Court of Justice is one of the eight main institutions of the organization, listed in Article 6 of the ECOWAS Revised Treaty. But it is not the only jurisdictional institution. Article 16 of the Revised Treaty also creates an “Arbitration Tribunal of the Community” whose status, composition and rules of procedure remain to be determined by a Protocol which has not yet been adopted. The Court of Justice is, therefore, the main judicial body of the Community. In addition, the Court, and this is not the case for the Arbitration Tribunal, is listed in Article 6 in the same way as the Assembly of Heads of State and Government, the Council of Ministers or the Executive Council, as it is the only operational judicial body of the Community. Indeed, the establishment of the Court even preceded the adoption of the ECOWAS Revised Treaty. Protocol A/P.l/7/91 on the Community Court of Justice (1991 Protocol) was adopted on 6 July 1991, just over two years before the adoption of the revised Treaty. In addition, the Court officially began its activities in 1991, although its Protocol did not enter into force until 5 November 1996.
This accelerated establishment of the Court was justified by the faith of many African States, probably inspired by the European model, in the role of law in the integration process, as will be discussed in section I. Gradually, however, the ECOWAS Court of Justice is moving away from this “classical” function of Community jurisdiction to claim the “label” of human rights jurisdiction, as will be discussed in section II.
I. From the traditional Community jurisdiction to recognised human rights jurisdiction…
The primary function of the Court is indicated in the preamble to the 1991 Protocol: “the essential role of the Community Court of Justice is to ensure the observance of law and justice in the interpretation and application of the Treaty and the Protocols and Conventions annexed thereto, and to be seized with responsibility for settling such disputes as may be referred to it in accordance with the provisions of Article 56 of the Treaty and disputes between States and the Institutions of the Community”. From this point of view, the establishment of the ECOWAS Court of Justice reflects the same philosophy that has led to the establishment of courts in many integration processes on the continent (SADC, EAC, CEMAC, UEMOA, and so on). It is based on the idea, undoubtedly inspired by the dynamics of European integration , that real economic integration is only possible if it is built on and with the law; that is, if the rules adopted or enacted by the common institutions are interpreted and implemented in the same way by all, without variations linked to the national margin of appreciation.
The approach thus promotes integration through rules and the restructuring of the legal area. Rules-based integration means that the process must be accompanied by the adoption of new legal rules based on a unit of law, in particular, productive activities and control of the financial space. Drawing the consequences from the failures of previous tests and undoubtedly strongly influenced by the success of the European model, African States perceived the establishment of a Community jurisdiction as an imperative tool to enable compliance with Community rules. It appears that, without being obvious, the relationship between integration and jurisdiction has become necessary: at the end of a phenomenon of reciprocal information between theory and practice, a re-reading of integration has resulted from the European experience and has introduced an ontological link between the reality of legal integration and the existence of a judicial mechanism.
It is to this notion of rules-based integration that what can be described as the “classical competences” of the ECOWAS Court of Justice can be ascribed. These competences can be found in the statutes of almost all regional integration courts, and are found in Article 9 of the Protocol establishing the ECOWAS Court:
“1. The Court shall ensure the observance of law and of the principles of equity in the interpretation and application of the provisions of the Treaty. 2. The Court shall also be competent to deal with disputes referred to it, in accordance with the provisions of Article 56 of the Treaty, by Member States or the Authority, when such disputes arise between the Member States or between one or more Member States and the Institutions of the Community on the· interpretation or application of the provisions of the Treaty. 3. A Member State may, on behalf of its nationals, institute proceedings against another Member State or Institution of the Community, relating to the interpretation and application of the provisions of the Treaty, after attempts to settle the dispute amicably have failed. 4. The Court shall have any powers conferred upon it, specifically by the provisions of this Protocol”.
The Court also has jurisdiction in contentious matters, and:
- examines cases of failure by Member States to honour their obligations under the Community law;
- has competence to adjudicate on any dispute relating to the interpretation and application of acts of the Community;
- adjudicates in disputes between Institutions of the Community and their officials;
- has the power to handle cases dealing with liability for or against the Community; and
- adjudges and makes declarations on the legality of Regulations, Directives, Decisions, and other subsidiary legal instruments adopted by ECOWAS.
In 2005, the ECOWAS Member States further strengthened their commitment to establishing a “Community of Law” by giving a mandate for the protection of human rights. This institution thus proves to be a concrete sign of the attachment of these States to the “recognition, promotion and protection of human and peoples’ rights in accordance with the provisions of the African Charter on Human and Peoples’ Rights” and “promotion and consolidation of a democratic system of governance in each Member State as envisaged by the Declaration of Political Principles adopted in Abuja on 6 July, 1991” (see article 4 of the Revised Treaty related to the fundamental principles of the Community). This means that now “[t]he Court has jurisdiction to determine case of violation of human rights that occur in any Member State” (article 3 Supplementary Protocol A/SP.1/01/05 amending the preamble and articles 1, 2, 9 and 30 of Protocol A/P.1/7/91 relating to the Community Court of Justice and article 4 paragraph 1 of Protocol/A/P.1/7/91, the English version).
On this basis, and with a barely veiled activist stance, the judges of the ECOWAS Court of Justice have gradually opted for a broad, even avant-garde interpretation of certain points of the rules, not only of ECOWAS, but also of the African Charter on Human and Peoples’ Rights, in order to protect the rights of community citizens.
II. …To the court actively seeking the “label” human rights court
It was on the occasion of the adoption of a Protocol on democracy and good governance in 2001 that the amendment of the 1991 Protocol will be considered for the purpose of “extending the Court’s jurisdiction, inter alia to violations of human rights after the exhaustion, without success, of domestic remedies” (see article 39 of the Protocol 2001). It is on this basis that the Member States have proceeded, four years later in Accra, Ghana, at the adoption of the Protocol A/SP.I/01/05 amending the Protocol of 1991. Interpreting not only the African Charter but also the other international human rights treaties to which ECOWAS Member States are parties, the Court of Justice has been particularly bold and even activist in the construction of a “Community of Law” in West Africa.
The Court thus affirmed the primacy of the African Charter on Human and Peoples’ Rights in the Community legal order, in particular on the grounds that all ECOWAS Member States are parties (Sikiru Alade v. Nigeria, para. 24; Moussa Leo Keïta v. Mali, para. 34). Similarly, taking advantage of the absence of a specific human rights protection instrument within the ECOWAS framework, the Court of Justice has used this gap to opportunely define and broadly delimit the scope and modalities of its jurisdiction in the field of human rights, and have a broad interpretation of the procedural rules. It has thus found itself justified in applying a wide range of international human rights instruments as well as certain national laws.
The Court of Justice did not hesitate to question the rule of prior exhaustion of domestic remedies, considering that “there is (…) no reason to consider the absence of prior exhaustion of domestic remedies as a gap that the practice of the Court of Justice of the Community must fill; because it cannot, without violating the rights of individuals, impose conditions and formalities on them which are more burdensome than those laid down in Community legislation” (Hadijatou Mani Koraou v. Niger, para. 45). The Court does not seem to think that this is a customary principle of contentious law that it must apply even in the absence of a textual prescription. In the case of CDP and others v. State of Burkina Faso, it opted for a particularly broad application of the status of “potential victim” to identify personal harm and admit a claim. Previously and in the same case, the Court argued that the situation for which it is seized is urgent, in order to dispense with the obligation to examine its jurisdiction (para. 16).
On the substantive issues, it has sometimes been questioned whether the ECOWAS Court of Justice does not, in fact, impose on itself a third level of jurisdiction: A kind of supra-constitutional court that gives itself the power to control the rules of the political and electoral game, including the decisions of the Member States’ constitutional courts. No doubt seeing resistance being organized on the part of some national courts, in particular the Burkinabe courts in the course of the CDP and other judgments, the Court kept itself to clarifying the limits of its mandate. It thus recalls that it is “out of the question that it should insure the police for the elections that Member States organise” even if it admits that it can be “validly seized when it appears that the electoral process is marred by human rights violations, violations for which the sanction falls within its competence.” It also reiterates its “refusal to establish itself as a judge of the internal legality of States;[it is not] a body responsible for deciding cases involving the interpretation of the law or the Constitution of ECOWAS States” (See CDP and Others v. Burkina Faso, para.’s 19, 24; and Isabelle Ameganvi and Others v. Togo, para….).
Conclusion
Finally, if the Court of Justice has been able to seize the opportunities offered by the extension of its jurisdiction to human rights issues to establish itself increasingly as one of the most active in this field, it is because it knows that it can count on the tacit support, or at least the indulgent tolerance, of ECOWAS Member States to avoid the fate suffered by the SADC Tribunal. This support from States is called for by the very active involvement and lobbying of civil society organisations in the region. This mobilization and support were evident in an attempt by the Gambia to reduce the Court’s jurisdiction. After its conviction for torture and other human rights violations in Manneh v. The Gambia in 2008, the Gambia country tried to limit the human rights mandate of the ECOWAS Court of Justice by expressly requesting an amendment to the 2005 Protocol. There was a widespread mobilization of civil society, which undoubtedly contributed to the rejection of the Gambian proposal by the ECOWAS Council of Ministers of Justice. This crisis was also a summary of the strengths, weaknesses, and dangers facing the ECOWAS Court of Justice.
In a more general and systemic approach to the protection of human rights in Africa, there is concern about the lack of regular references to the African Court and Commission on Human and Peoples’ Rights in the case-law of the ECOWAS Court of Justice. There is a risk of contradiction, even divergent interpretations of the same instrument as the African Charter on Human and Peoples’ Rights. Formal and informal bridges between these different jurisdictions should be established quickly, enabling them to enrich each other for the consolidation of the rule of law and the protection of the human person in Africa.