The aftermath of World War 2 saw the emergence of human rights protection mechanisms including regional court systems, such as the European Court of Human Rights based in Strassbourg, establishment of the Inter-American Court and eventually the African Commission for Human and People Rights. Currently, a protocol has been signed for the transformation of the African Commission to a court. There is also in the pipeline plans to establish an African Court of Justice. Pundits therefore thought that it is necessary for both institutions to merge in the face of the new African challenges. The merger is going to see one of the institutions becoming a subset of the other. However, human rights activists fear that if the African Court of Human Rights becomes a subset of the African Court of Justice, the issue of human rights will be watered down as politicians are not enthusiastic about human rights issues. As a matter of fact, human rights are normally claimed against them. As this debate continues, sub-regional states are organizing themselves to establish their own Court. An example of such is the establishment of the ECOWAS Community Court of Justice. The Court has started a process of reaching out to the people of West Africa to discuss issues bordering its establishment. This article will discuss one of such outreach workshops conducted in Sierra Leone in March 2006.
On 27 and 28 of March, the West African Bar Association (WABA) in collaboration with the Sierra Leone Bar Association (SLBA) and the Open Society Initiative for West Africa (OSIWA) organized a two-day workshop on the Law and Practice of the ECOWAS Community Court of Justice. This was held at the British Council Auditorium on the 27th and 28th March 2006. The facilitators consisted of the Presidents of the SLBA, WABA, Togo Bar Association and the Registrar of the Community Court of Justice. Participants at the workshop included lawyers, journalists and law students from the Fourah Bay College and the Sierra Leone Bar School.
Some of the issues discussed included the law and practice of the Community Court of Justice, enhancing human rights and access to the Court, the mandate, competence and jurisdiction of the Court. Participants were intimated that the Court was established by virtue of Art 15(1) of the Revised Treaty of ECOWAS as the principal juridical organ to enforce the provisions of the Treaty and enhance its compliance of member states. The 1991 Protocol empowers the Court to deal with disputes arising between member states and the institutions of the Community like ECOMOG, WAMA etc. It further authorizes the Court to serve as advisory council to member states. It also empowers the Court to interpret or apply the provisions of the Treaty in respect of matters set before it by member states on behalf of its nationals. The initial condition is that, they should have exhausted all domestic remedies before seeking redress in the Court. However, the 1991 Protocol was defective as it does not accord individuals or organizations direct access to the Court. As a result, member states and institutions did not file any action or institute any proceeding in the Court since it commenced sittings 2001.
The authority of Heads of States, therefore, in concert with legal practitioners in West Africa realized that, the Protocol, deficient as it is, would only continue to be unhelpful in addressing human rights problems. In view of the above, a Supplementary Protocol amending the Protocol relating to the Community Court of Justice was enacted in January 2005. It amended certain portions of the 1991 Protocol and substitutes others by inserting new articles addressing human rights violations and compelling member states to recognize and apply the said provisions. That said, I will discuss the amended Protocol below.
Ratione Materiae (What)
Art 10 of the supplementary Protocol gives the Court competence to adjudicate on any dispute relating to the following: the interpretation and application of the treaty, conventions and protocol of the community; the interpretation, application and legality of regulations, directives, decisions and other subsidiary legal instruments adopted by ECOWAS; the failure of member states to honor their obligations under the treaty, convention, directives or decisions of ECOWAS; the action for damages of a Community institution or an official of the Community for an action or omission in the exercise of his duty; cases of violation of human rights that occur in any member states; to act as arbitrator for the purpose of Art 16 of the treaty and matters provided for in an agreement were the parties provide that the Court shall settle disputes arising from the agreement. Art 24 of the Supplementary Protocol, which is an insertion of a new provision, further strengthens the Court’s powers to enforce it decisions.
Furthermore, the Court is governed by certain bodies of law, namely; Art 38 of the Statute of the International Court of Justice, the African Charter on Human Rights, the 1991 Protocol on the Community Court of Justice, the 2005 Supplementary Amendment Protocol and the Rules of Procedure of the Community Court of Justice. Currently the sitting of the Court is in Abuja, Nigeria. However, it is stated that, the Court sits in other countries when that situation arises.
Ratione Personae (Who)
Art 10 of the Protocol further expanded the competence and jurisdiction of the Court. It granted member states or the Executive Secretary the authority to institute action for failure by a member state to fulfill an obligation. Member states, the Council of Ministers and the Executive Secretary to institute proceedings for the legality of an action in relation to any community text. In addition it empowers national courts to refer a matter arising from the interpretation of a provision of the Treaty to the Community Court either on its own or by request from one of the parties to the dispute. Moreover, staff of any community institution can access the Court after the staff member has exhausted all appeal processes available to the officer under the ECOWAS Staff Rules and Regulations. Furthermore, it accorded corporate body’s direct access to the Court for the determination of an action or inaction of a community official which violates the corporate bodies. Most importantly, it granted individuals direct access to seek relief for violation of their human rights with the condition that, the action should encompass an act or omission of a Community Official that violates their rights and the application must not be anonymous or pending in another international court.
Rationae Temporis (when)
It is proved that since the Amended Protocol came into force in January 2005, it has opened a floodgate of litigations in the Court which is attributed to the climate of repression currently existing within member states. Most applicants (i.e. physical and juridical persons) are aware that before accessing the Court one must have exhausted all domestic remedies. However they should be cautious, lest their action be statute barred as Art 9(3) states that “any action by or against a Community Institution or any member of the Community shall be statute-barred after three years from the date when the right of action arose.”
Exhausting Domestic Remedies
It is a general principal under international law that before any international body is approached; all legal domestic remedies must be exhausted by the applicant. What is therefore deemed exhaustion of domestic remedies? The Court can admit a communication on the ground that the delay in arriving at the judgment was unduly prolonged. A communication will be admissible if the applicants proved that no local remedy is available or that it is available but ineffective. In such a scenario the burden of proof will shift to the state who must disprove the applicants allegation by stating that there has not been an exhaustion of local remedies, but that, there is actually an effective and adequate remedy for the particular dispute in question. In the event the state fails to challenge the admissibility of the communication, the Court will deem the silence as consent and will proceed to admit the matter.
Concerns Raised During the Workshop
Several contentious issues arose during the course of the workshop. Namely, the issue of adequate provisions to execute the Court’s judgment was contested, with regards to political leaders especially military juntas.
The President of WABA intimated the participants that the Court, like other international courts, is dependant on the authority of member states to enforce its decisions against its nationals as it lacks a police force. Therefore, such member states will be held to account on failure to fulfill their obligations or discharge their responsibility under international law. With regards civil matters, the Court is to enforce its judgments by virtue of Art. 24 of the Supplementary Protocol which states that, every decision of the Court shall be executed in the form of a writ which shall be received by a competent national authority for execution according to the rules of civil procedure of that member state.
With regards member states, the Court relied on Art. 20 of the 1991 Protocol which gives the Court authority to order provisional measures or issues that are necessary or desirable to the particular case at hand. In addition, it has power to levy punishments under Art. 37 of the Treaty of ECOWAS on member states. It may order sanctions, suspend Community assistance and disbursement of funds to that member state or suspend its participation in the Community until it complies with the pronounced judgment.
The President regrettably mentioned that, these are the only methods by which the Court can enforce its judgments. The Court cannot go beyond the Supplementary Protocol which does not make provision for local remedies. He stated that most member states have refused to ratify the ECOWAS Protocol on Democracy and Good Governance which obliges states to adopt practical modalities for the enforcement of the rule of law, human rights, justice and good governance. Under this Protocol, dictatorship rulers would have been held to account.
Another contentious issue raised is the refusal of the Court to try customary law matters. It was deliberated that most cases in Africa hinge on customary law therefore the jurisdiction of the Court must cover customary law cases that are repugnant to natural justice and good conscience. The President replied that customary law is reflected in the African Charter on Human and Peoples Rights beyond that the Court does not have the competence to try customary law cases and any matter outside its jurisdiction will be thrown out. That notwithstanding, he encouraged individual and groups, especially women, and also juridical persons to institute an action under Art.10 (b) of the Supplementary Protocol. In addition, they can also utilize other relevant human rights instruments in order to exercise their civic rights or seek redress in this Court as gender issues were properly taken care of under Art. 18 of the African Charter and the Court has earlier taken cognizance of international customary law.
Participants asked how the majority of poverty-stricken Africans can access the Court. The facilitators informed the participants that a separate fund has been kept solely for that reason. The question of who should benefit from that fund then arose? It was agreed that, in order to protect the interest of indigent litigants the ECOWAS Secretariat should collaborate with WABA to set up legal aid centres in every member state. This centre will have a panel and laid down criteria to determine individual applications. The panel initially decides which cases are eligible and compile them for funding. After which an application will be made to WABA and they will have the final say on the eligibility of applicants. The selected cases will be funded by the legal aid council which will include costs for transportation, accommodation of indigent litigants and even lawyers fees. In the interim the Court may also assign indigents victims of human right violations to some lawyers on a pro bono basis.
Another salient issue discussed was regarding the qualification of lawyers, agents or advisers that may wish to make an appearance on behalf of their client(s) before the Court. Chapter VI of the Rules of Procedure of the Community Court states that, anyone wishing to make a representation must lodge a practicing certificate at the Office of the Registrar, certifying that he/she has the authority to practice in a member state or another state which is a party to the Treaty. Furthermore, there are hosts of other written and oral procedures enshrined in the Rules of Procedure that the legal practitioner should strictly abide by. In a bid to facilitate communication and eventually enhance speedy hearings, the President urged lawyers to adopt the current practice in other international tribunals wherein applications, briefs and depositions of witnesses are tendered to the Court via the internet.
Finally the President admonished lawyers to be innovative in enforcing the human and civic rights of their clients. Making reference to civil resistance, the President indicated how successful the Nigerian Bar Association’s strike was in ensuring that the Government and its officials adhere to court orders. This was a bright example of how the civil society can go in ensuring accountability and the rule of law.