* Paper presented at the 2-day Consultative Meeting of ECOWAS Court of Justice
The premise of this paper is that previous speakers have dwelt extensively on the legal architecture, jurisdiction, challenges; etc. of the Court before now and therefore, this audience should be spared repetition as much as it is practicable.
This paper hopes to examine the types of processes that supranational bodies, with particular reference to ECOWAS Court, currently employ, and should employ in the future, to determine the compatibility of a particular dispute resolution process with the right of access to justice, in other words, what are the appropriate dispute resolution processes (ADR) for such bodies. The concept of access to justice within the context of this paper is used advisedly with knowledge of the history of the resistance to ADR as a viable alternative to public courts.
In 1975, the European Court of Human Rights (ECtHR) held that ‘one can scarcely conceive of the rule of law without there being a possibility of having access to the courts’. Yet the presumption that courts are the principal forum for dispute resolution continues to be eroded through the proliferation of alternative forms of dispute resolution (ADR), both agreement based (such as mediation and conciliation) and adjudicative (such as arbitration).
ADR can be integrated within national court systems and enjoy support at the international level. Also, the European Union has also adopted a series of resolutions on mediation, and its Fundamental Rights Agency is exploring the role of non-judicial processes under the theme of ‘justice in austerity’
ECOWAS Community Court of Justice
The Community Court of Justice was created pursuant to the provisions of Articles 6 and 15 of the Revised Treaty of the Economic Community of West African States (ECOWAS).
Its organizational framework, functioning mechanism, powers, and procedure applicable before it are set out in Protocol A/P1/7/91 of 6 July 1991, Supplementary Protocol A/SP.1/01/05 of 19 January 2005, Supplementary Protocol A/SP.2/06/06 of 14 June 2006, Regulation of 3 June 2002, and Supplementary Regulation C/REG.2/06/06 of 13 June 2006.
Particularly, Supplementary Protocol A/SP.1/01/05, which amended the Preamble and Articles 1, 2, 9, and 30 of the 1991 Protocol.
Article 9 now contains the following:
- The Court has competence to adjudicate on any dispute relating to the following:
- The interpretation and application of the Treaty, Conventions and Protocols of the Community;
- The interpretation and application of the regulations, directives, decisions, and other subsidiary legal instruments adopted by ECOWAS;
- The legality of regulations, directives, decisions, and other legal instruments adopted by ECOWAS;
- The failure by Member States to honor their obligations under the Treaty, Conventions and Protocols, regulations, directives or decisions of ECOWAS;
- The provisions of the Treaty, Conventions and Protocols, regulations, directives or decisions of ECOWAS Member States;
- The Community and its officials; and
- The action for damages against a Community institution or an official of the Community for any action or omission in the exercise of official functions.
- The Court shall have power to determine any non-contractual liability of the Community and may order the Community to pay damages or make reparation for official acts or omissions of any Community institution or Community officials in the performance of official duties or functions.
- Any action by or against a Community Institution or any Member of the Community shall be statute barred after three (3) years from the date when the right of action arose.
- The Court has jurisdiction to determine case of violation of human rights that occur in any Member State.
- Pending the establishment of the Arbitration Tribunal provided for under Article 16 of the Treaty, the Court shall have the power to act as arbitrator for the purpose of Article 16 of the Treaty.
- The Court shall have jurisdiction over any matter provided for in an agreement where the parties provide that the court shall settle disputes arising from the agreement.
- The court shall have the powers conferred upon it by the provisions of this Protocol as well as any other powers that may be conferred by subsequent Protocols and decisions of the Community.
- The Authority of Heads of State and Government shall have the power to grant the Court the power to adjudicate on any specific dispute that it may refer to the Court other than those specified in this Article.
The Court of Justice (CCJ) of ECOWAS (the Court), by virtue of Article 9(5) of the Supplementary Protocol (2005), is tasked with the power to act as arbitrator pending the establishment of the Arbitral Tribunal. It provides:
“Pending the establishment of the Arbitration Tribunal provided for under Article 16 of the Treaty, the Court shall have the power to act as arbitrator for the purpose of Article 16 of the Treaty”
As at early this year, the Court is yet to exercise the arbitral jurisdiction as the Council of Ministers are yet to approve its Rules of Arbitration. As a matter of fact, the President of the Court, Hon. Justice Jerome Traore opened the 2017/2018 Legal; year of the court on Monday, 9th October 2017 with an appeal to the ECOWAS Council of Ministers to approve the rules of Arbitration to enable the Court exercise its Arbitral mandate.
How the Arbitral jurisdiction can support the mandate of the Court
First, the point should be made that because arbitration is basically a private contract, for the court to act as an arbitral tribunal, there has to be an existing arbitration clause in the contract between the parties designating the Court as the arbitral panel for the resolution of their disputes. This is without prejudice to member states subscribing by treaty to the arbitral jurisdiction of the Court for inter-state dispute resolution.
For instance, Article 28 of the COMESA (Common Market for Eastern and Southern Africa) Treaty grants the COMESA Court jurisdiction to hear and determine any matter arising firstly, from an arbitration clause contained in a contract, which confers such jurisdiction to which the Common Market or any of its institutions is a party.
Secondly, on matters arising from a dispute between the Member States regarding the Treaty if the dispute is submitted to it under a special agreement between the Member States concerned.
The COMESA Court is one of the key entities of the legally established regional frameworks that will provide and support the initiative for Alternative Dispute Resolution.
The point also needs to be made that for the court to exercise this mandate effectively and expeditiously, capacity building of the Justices of the court should be prioritized in order to create a knowledgeable panel of arbitrators to support the process.
ALTERNATIVE DISPUTE RESOLUTION (ADR) AND NON-LITIGATORY JUSRISDICTION OF ECOWAS COURT OF JUSTICE
Some call it Appropriate Dispute Resolution. Others call it Amicable Dispute Resolution. Still others, who believe that its origin is firmly rooted in Africa, call it African Dispute Resolution. Whatever you may wish to call it, the fact remains that there is a crying need to supplement litigation through more peaceful and user-friendly options for resolving disputes. I have had cause to argue that litigation should be the alternative dispute resolution mechanism while Arbitration, Mediation, etc. remain the preferred dispute resolution process.
Many of the techniques brought together under the umbrella term ‘ADR’ have deep and separate roots. For example, in many civil laws in the Asian judicial system and African traditional dispute resolution models, the Adjudicator has, by custom or duty attempting to settle claims by conciliation. Mediation in family, community, and labour relations disputes all have independent, and sometimes, long standing historical or cultural roots.
The term Alternative Dispute Resolution (ADR) originated in the USA in a drive to find alternatives to the traditional legal system, felt to be adversarial, costly, unpredictable, rigid, damaging to relationships and limited to narrow rights-based remedies.
ADR as a term covers the whole range of alternatives to litigation or arbitration, which involve third-party intervention to assist resolution of disputes. In some writings, arbitration is also referred to as part of ADR. It was, of course, the first well-developed alternative to litigation.
The Role of ADR Practitioners
To enable ADR take its pride of place in justice delivery in West Africa, ADR practitioners must play an encouraging role in increasing awareness to litigants and lawyers alike of the availability and benefits of ADR. They have to be professional at all times and not rest on their oars in seeking continuing education on how best to integrate ADR practice into their profession.
Some notable provisions of the Treaty that supports ADR processes include:
Article 21: Application for Intervention
Should a Member State consider that it has an interest that may be affected by the subject matter of a dispute before the Court, it may submit by way of a written application a request to be permitted to intervene.
Article 22: Exclusivity of Competence and Recognition of the Decisions of the Court
By paragraph 1, of Article 22, no dispute touching and concerning the provisions of the Treaty may be referred to any other form of settlement except that which is provided for by the Treaty or this Protocol.
By paragraph 2, when a dispute is brought before the Court, Member States or Institutions of the Community shall refrain from any action likely to aggravate or militate against its settlement.
Regulation MSC/REG.1/01/08 adopts the ECOWAS Conflict Prevention Framework adopted as set forth in the following paragraphs:
The Economic Community of West African States (ECOWAS) has, over the years, proven its capacity to undertake successful conflict prevention, peace-making and conflict resolution under the Protocol relating to the Mechanism for Conflict Prevention, Management, Resolution, Peacekeeping and Security of 10th December 1999 (hereafter referred to as the Mechanism). The Institution has achieved remarkable success in fulfilling its mandate by containing violent conflicts in the region and carrying out conflict prevention interventions through preventive diplomacy initiatives – fact-finding missions, quiet diplomacy, diplomatic pressure and mediation.
The institution has also established several promising conflict prevention organs to underpin its mandate, including the Early Warning System, the Mediation and Security Council, Offices of the Special Representative, the Council of the Wise and Special Mediators. However, the implementation of the preventive aspects of the Mechanism has at times, lacked a strategic approach. It has been characterized by weak internal coordination, underutilization and misdirection of existing human capacities as well as the deployment of limited instruments.
The ECPF is intended as follows:
A comprehensive operational conflict prevention and peace-building strategy that enables the ECOWAS system and Member States to draw upon human and financial resources at the regional (including civil society and the private sector) and international levels in their efforts to creatively transform conflict.
ISSUES IN PRACTICE
- What are the permissible circumstances in which parties to a dispute can be required to use ADR?
- What are the standards of justice expected of such processes
To answer these questions, you must understand the role and possibilities of ADR processes and their relationship to the courts. Debates on whether or not access to courts can be made conditional on a prior consideration of ADR and the general standards required of ADR often gather momentum in moments of ‘crises’ of ‘congestion, delay and expense’ in the national judicial system.
As most cases are settled, proponents argue that a focus on making ADR more effective ‘has an enormous potential for reducing caseloads’.
A purely pessimistic view of ADR, however, conceals deeper discussions on whether ADR carries public value to the same extent as courts and whether it can and should offer similar standards of justice to those presumed to be inherent in courts.
This view is the bane of ADR in most developing countries where the gate keepers in the temple of justice are mostly “litigation lovers” and only offer a flat view of dispute resolution that is abstracted and that assumes that ADR does not use legal principles, that it is unaffected by precedent and that it is incapable of offering justice. Some of us focus on the public value of ADR and are of the strong opinion that law and justice are not synonymous. The characteristics of ADR such as ‘consent, participation, empowerment, dignity, respect, empathy and emotional catharsis, privacy, efficiency, quality solutions, equity, access, and yes, even justice, underline this point. ADR is championed on grounds that it advances self-determination and autonomy and empowers parties to control the outcome and preserve pre-dispute relationships. On this justification, the major critiques of arbitration – for example, its privacy and confidentiality – are seen as advantages to party choice and control of the dispute.
I therefore emphasize that courts are not necessarily the optimal forum for all disputes and that not every dispute has to have a public value.
This argument finds justification in the words of Michael Moffitt ‘litigation fulfills its public function best if it is not called upon as the method of resolving every kind of dispute.’
Is it an Either/Or Position?
The foregoing could imply the need for stark choices between ADR and litigation. I would suggest that a better response is to articulate the values and characteristics of litigation in more detail and to assess the circumstances in which other forms of dispute resolution might be appropriate and whether their use is conditional on the transfer of some or all of the values and characteristics of litigation.
This is particularly the case given the developments in the forms of ADR beyond the traditional models of conciliation, mediation and arbitration that include hybrid models and the many variants within each model, including whether engagement is voluntary or mandatory; whether the ‘outcome is consensual or commanded’; how formal the process is and whether it is integrated into the judicial system (Multi-door courts); whether the decisions reached are binding; whether the process is public or private.
These factors challenge generalized assumptions about ADR, with Menkel-Meadow noting that ‘the truth is that the landscape of disputing has indeed become more and more complex, with predictions of outcomes, costs and strategies harder and harder to produce with any degree of accuracy’.
The Multi-Door Courthouse Concept
The concept of a Multi-Door Courthouse was developed in the United States in 1976 by Professor Frank Sander, a Professor of Law at Harvard University, who delivered a paper to the National Conference on the Causes of Popular Dissatisfaction with the Administration of Justice. To determine which dispute resolution mechanism is appropriate, he set the following criteria: cost, speed, accuracy, credibility and workability. Multi-door Courthouse supplements litigation by providing additional “doors” towards a faster, cost-effective and user-friendly access to justice.
After a careful study of the multi-door concept and the success stories in its trail, the Institute of Chartered Mediators and Conciliators, the leading Institute advocating ADR, is promoting the concept in the Nigerian Justice System, providing technical support and consultancy services for the establishment of Multi-Door Courthouses and Mediation Centers across the country.
The concept is justified when instead of just one door (litigation) leading to the courtroom, such a justice center has five (5) other doors through which disputes are resolved.
These doors are:
- Expert Determination
- Early Neutral Evaluation
The connection to the court gives more credibility to the ADR process itself. A very appropriate example is the Canadian experience – The Canada ADR Project. The Evaluation Report of the Project puts it thus:
“Its connection to the Court ensures its credibility in the eyes of the clients and counsel… ensures the accountability of the services to the court itself, and through the court to the public…”
The necessity of attaching the ADR Centre to the court demands that facilities in the court premises be upgraded and that basic communication/information technology equipment be provided for the project.
Also, the Community Court can afford adequate space for the ECOWAS multi-Door Courthouse.
In conclusion, I desire to offer a methodology for the ECOWAS court when assessing the voluntary and mandatory use of ADR. This methodology would engage with some of the harder questions and challenges raised earlier in order to contribute to the positive development of ADR and minimize its challenges.
However, the Court is unlikely to develop a clearer approach in the abstract as it can only respond to the cases it receives. Presently, the court is set to deliver a judgement/ruling on the Benue state Indigenes and Herdsmen case and challenges should be expected as the outcome may not be acceptable to one of the parties in the future, hence with the increased promotion of ADR by national and regional stakeholders, such disputes may be better suited for ADR.
Since one of the main justifications for the use of ADR is the autonomy and empowerment of the parties to resolve their disputes, the Court should generally avoid over-prescription whenever the parties initiate ADR.
The doctrine of equality of arms requires each party to be given a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent. The doctrine would appear particularly well placed to respond to some of the critiques of ADR by focusing on the ability to participate in the process. In applying the doctrine, two key principles – procedural justice and legal accompaniment and representation – could provide a framework for assessing the voluntary nature of such engagement.
This paper has sought to contribute to the growing developments in the field of ADR by examining the ways in which supranational courts might examine the standards required of ADR, whether they are engaged voluntarily or mandatorily and given the permissibility of formal diversions from the courts to ADR.
Finally, let me on behalf of the Institute of Chartered Mediators and Conciliators, offer our technical support and assistance to the ECOWAS Court in your efforts to streamline ADR in your processes for dispute resolution.