ECOWAS Court…Held up by challenges

The Community Court of Justice of the Economic Community of West African States (ECOWAS) has commenced its 2019/2020 legal year. At the event marking the commencement of the New Year, speakers drew stakeholders’ attention to the court’s any challenges, Eric Ikhilae reports.

For courts, the new legal year ceremony provides an opportunity to review the activities of the previous year and project for an improved outing in the new year. But, for the Community Court of Justice of the Economic Community of West African States (ECOWAS Court) the 2019/2020 new legal year ceremony, held in Abuja, provided an opportunity to do more.

It allowed the court’s leadership to draw member states’ attention to some of their practices and decisions that do not only hamper the court’s effectiveness, but threaten the realisation of the much-touted economic integration of the sub-region.

In attendance were representatives of member states of the ECOWAS and its organs, including President, ECOWAS Commission, Jean-Clade Kassi Brou; President, ECOWAS Judicial Council, Justice Akakpovi Gamatho and Nigerian Ministers of Justice, Foreign Affairs and Federal Capital Territory (FCT), Abubakar Malami, Geofrey Onyeama and Muhammad Bello.

The President, Nigerian Bar Association (NBA), Paul Usoro, and the Director General of Nigerian Institute of Advanced Legal Studies (NIALS), Prof Muhammed Ladan were also in attendance

The court’s President, Justice Edward Asante; the Registrar, Tony Anene-Maidoh and Prof Ladan observed that the recent decisions and actions by member states of the ECOWAS now placed the court in a disdvantaged position.

Inadequate manpower

The court had seven judges until recently when, at meeting of the sub-regional body’s decision-making organ, member states decided to reduce the number of judges to five. The argument was that the ECOWAS commission was hit by dwindling contributions from members.

But, Asante and Anene-Maidoh want ECOWAS to reconsider its position on the issue. They argue that the policy not only impedes the court’s effective operations, but now compels the remaining five judges to over labour themselves given the growing number of cases.

They noted that the reduction in the number of judges poses a serious threat to the court, and creates difficulties in the composition of multiple panels to hear the rising number of cases.

Beside the inadequacy in the number of judges, Asante and Anne-Maidoh also drew attention to the paucity of interpreters, which they said resulted from the decision by ECOWAS member states to reduce the number of translators from nine to six in the 2018 organogram of the court. Anene-Maidoh added: “Currently, there are 210 court processes (documents) awaiting translation and we are relying more and more on freelance translators for the translation of court processes into Portuguese.

“This is not an ideal situation. Realistically, the court needs a minimum of 12 translators for the three languages – English, French and Portuguese.

“It must be emphasized that Article 19 of the Rules of Procedure of the ECOWAS Court of Justice provides that: ‘the court shall set up a translating service staffed by experts with adequate legal training and a thorough knowledge of several official languages of the court in accordance with Article 87(2) of the Treaty.’

“It is therefore obvious that the present reality in the court is not in conformity with the above provision. It is necessary for the community (ECOWAS) to address this problem in order to make the court more efficient.”

Disruptive succession regime

The court’s President, its Registrar and Prof Ladan called for a review of the amendment to the court’s tenure system, which altered the earlier seamless succession arrangement, where a judge was entitled to a five-year renewable tenure, to a new disruptive arrangement of a single tenure of non-renewable four years.

The implication of this alteration, they noted, is that all the judges are appointed the same time, assume office the same time and depart the same time; a clear departure from the earlier tradition of a staggered tenure system that had existed for members of the court, which guaranteed continuity in the court’s operations.

This policy, Asante argued, negates the principle in the Initial Protocol of the court that allowed for staggered tenure of members, and as a result, has now created “a grave concern for the court because of the attendant loss of institutional memory when the tenure of all the judges expire at the same time.”

Ladan added that “no other regional court has this type of composition and tenure of judges” as has just being foisted on the court. Ladan urged the court’s leadership to “continue to engage all stakeholders/relevant authorities to redress this anomaly in recognition of the peculiarity of the court as the principal judicial institution of the community.

Poor enforcement of court’s decisions

Asante, Anene-Maidoh and Ladan were unanimous in observing that member states’ reluctance to comply with the court’s decisions, by ensuring prompt implementation of its judgments constitutes another challenge.

Asante said the problem of enforcement of the court’s judgments was “another very critical challenge. We are concerned about the unsatisfactory rate of compliance with the judgments of the court. The judgments of this court are binding on member states, institutions of ECOWAS, individuals and corporate bodies.

“It is worrisome that since 2005 only five member states have appointed the Competent National Authority for the enforcement of its (the court’s) decisions as prescribed by the Supplementary Protocol,” Asante said. He gave the names of the countries as the Republic of Guinea, Nigeria, Burkina Faso, Mali and Togo.

Ladan warned about the negative consequence to the sub-region’s quest for economic integration and mutual progress should institutions like the ECOWAS court be allowed to only exist in name, its decisions rendered ineffectual and its operations crippled by member states’ actions and inaction.

“The experience of the ECOWAS region, though not perfect, confirms that unless member states give up some parts of their national sovereignty and empower regional integration institutions to make binding decisions on their behalf, and implement them at national level, little progress can be made.

“For effective delivery of justice and realisation of community economic integration objectives, it is very imperative for member states to demonstrate greater political will in the enforcement of the court’s judgements as required by the community law,” Ladan said.

Inadequate accommodation

The court equally suffers from the challenge of having to function in an environment not conducive for its operations, owing to the failure of member states to abide by their pledges.

Asante pointed this out when he observed that “acute accommodation crisis remains a major constraint the court has faced over the years. We do not have sufficient space to accommodate the Judges and staff who have been working in very unconducive work environment.”

He traced the history of this problem to Nigeria’s reluctance to honour its pledge to accord the court a befitting accommodation.

“The Federal Republic of Nigeria is the host of the court, and the present office building was provided by the government of Nigeria in year 2002 at a time that the court had skeletal staff strength.

“Due to the increase in the number of staff over the years, this office building has become grossly inadequate. The court was compelled to rent an annex office to accommodate some departments of the court, in addition to this main building.

“We wish to recall, that under Decision A/DEC.20/12/01 of 2001 of the Authority of Heads of State and Government, and the 2003 Headquarters Agreement between the Federal Republic of Nigeria and ECOWAS, Nigeria was given the responsibility to provide a befitting office accommodation for the court.

“We have been in contact with the government of the Federal Republic of Nigeria on this issue and we are delighted to report that the government of the Federal Republic of Nigeria is making arrangement to rent a temporary office building for the court, pending the acquisition or the building of a befitting office complex for the court. It is our hope that this objective will be realised without further delay.

“It is our hope that the promises made to the delegation of the court by the honourable minister will be fulfilled in this new legal year,” Asante said.

Underutilisation of court’s services

Perhaps, owing to their lukewarm attitude towards the court and its capabilities, member states have over the years, failed to effectively explore the court’s potentials by taking steps to activate its many jurisdictional competences.

The court was established under the provision of Article 15 of the ECOWAS Revised Treaty and listed in Article 6 of the Treaty as one of the key institutions of ECOWAS. The initial Protocol on the court was adopted in 1991.

The essential role of the court, as enshrined in the preamble of that initial Protocol, “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 76 of the Treaty” and disputes between states and the institutions of ECOWAS.

The Protocol was amended in 2005, granting direct access to individuals for the first time. The amendment also gave the court four distinct mandates – mandate as a Community Court; mandate as an Administrative Court for ECOWAS Public Servants; mandate as an Arbitration Tribunal, and mandate as a Human Rights Court.

Ladan argued that it is odd that the court is little known outside the human rights community, given ECOWAS’ broad economic integration objectives and programmes since 1975, and the court’s powers since 2001.

He observed that, in view of its broad mandate areas, the court play arbitration role, by serving as a forum for the settlement of some disputes between foreign investors and host member states; disputes arising under the community law, including any matter provided for in an agreement where parties agree that the court shall settle disputes arising from the agreement.

The NIALS boss regretted that the court’s power to act as the Community Arbitration Tribunal has not been functionally activated or utilised since the court’s inception given its benefit to economic development in the sub-region and its capacity to reduce frictions inherent in business interactions among states.

Need for appellate chamber

It was also argued that the absence of a venue where the court’s decisions could be reviewed contributed to why the court has not enjoyed the much-needed patronage and respect.

Ladan argued that, for a stronger ECOWAS court, there is the need for an appellate chamber of the court in line with the 2006 Agreement by the ECOWAS Council of Ministers.

The creation of an appellate chamber, he noted, will allow litigants exercise their fundamental right of appeal.

The bright side

For the court, it is not all about problems and challenges. The last legal year was the first for the current set of judges, who assumed office on August 27, 2018 after being sworn in on July 31, 2018 by then Chairman of the Authority of Heads of State and Government, President Faure Gnassingbe Eyadema.

They include the President, Asante (from Ghana), Gberi-be Ouattara, Vice President (from Cote D’Ivoire) Dupe Atoki (Nigeria), Keikura Bangura (Seirra Leone) and Januaria Costa (Cape Verde).

Presenting the court’s scorecard for the last legal year, Asante said the court held 95 sessions, delivering 28 judgments, eight rulings, with 115 cases pending.

“Out of the 115 cases, 20 cases have been adjourned for judgment, while 40 cases are undergoing hearing and 77 cases undergoing written procedure,” he said.

He added that the court has deployed Information and Communication Technologies (ICT) to ease its operations and enhance access to its services, among other measures.