11 years after, ECOWAS court still begs for member states’ respect

The non-enforcement of the judgments of the ECOWAS Court of Justice is a major problem confronting it 11 years after it began full operations. 

The West African sub-region court, the Court of Justice of the Economic Community of West African States, has begun full operations since January 2004, but it is still grappling with teething problems which have refused to vanish.

At 11, the court is still confronted with lack of adequate space, insufficient courtrooms, non-conducive environment and the need for more personnel in critical units.

However, most troubling among the challenges bedeviling the court is what its President, Justice Maria Monterio, tagged, “the low rate of enforcement of the court’s judgments”.

According to the Chairman of the National Human Rights Commission, Chidi Odinkalu, there are at least eight member states, including Nigeria, against whom judgments were given but yet to be enforced.

Odinkalu, who relied on the 2013 publication on the ‘Report on the Enforcement of Decisions of the Community Court of Justice’ was the guest lecturer at the ceremony marking the new 2014/2015 legal year of the court held in Abuja last week Thursday.

The Chief Registrar of the Court, Tony Anene-Maidoh, despite Nigeria’s failure to enforce some of the judgments delivered against it, however said Nigeria was the only member state that had appointed “a competent National Authority for the enforcement of the judgments of the court in accordance with the Protocol establishing the court”.

However, Odinkalu said that apart from Nigeria, other member states who were still defaulters as regrds enforcement of the court’s judgments were: Burkina Faso, The Gambia, Liberia, Mali, Togo and Senegal.

The rights activist said, “In nearly all of these cases, there have been no measures of compliance.

“Where any has taken place, most state parties have not taken adequate steps to report those to the court.”

The issue of non-enforcement of the court’s decisions dominated at the new legal year ceremony.

Justice Monteiro, in her speech during the event, captured the mood of the court on the attitude of members states, including Nigeria, towards the enforcement of the court’s judgments.

In fact, to underline the feeling of the court about the scant attention that member states gave its decisions, the theme for the new legal year ceremony was tagged, ‘Efficacy of the Community Law: Challenges of Execution of the Court’s Decisions’.

While reiterating the need for member states to be favourably disposed to the enforcement of the court’s judgments, Monteiro called on them to emulate the prompt compliance of the Niger Republic with the “landmark judgment” which the then 24-year-old Hadijatou Koraou obtained against her country in 2008.

She was said to have been held in slavery for about nine years.

In the said judgment, delivered in Niamey, the capital of Niger, on October 27, 2008, the ECOWAS Court, found Niger in breach of its laws and international obligations in protecting its citizens from slavery.

The court held that the Niger Republic was obliged to take positive measures to protect its citizens from slavery. The court ordered that Koraou should be compensated by the government of Niger with 10m CFA (then equivalent to £12,300/$19,000) in damages.

The judgment, described as historic, is one of the landmark judgments which the ECOWAS Court can boast of.

The Chief Registrar of the court, Anene-Maidoh, said the court had, since its inaugural sitting on January 22, 2004, had 532 court sessions with 82 rulings and 86 judgments delivered in the 201 cases that had been filed before it since 2003.

He added that the court had delivered 12 review of decisions and three advisory opinions. Anene-Maidoh said there were 56 cases pending before the court.

The court’s president noted that the member states were under obligation to enforce the court’s decisions, adding that it was the only way that West African citizens could count on the court for justice.

She said, “Members states’ observance of their obligations arises from their international commitments under the pacta sunt servanda rule of international law, which makes it binding on the states to respect their obligations, in accordance with the terms provided under the Treaty, as freely endorsed and ratified by them.

“However, the low rate of enforcement of court’s judgments brings into sharp focus a challenge regarding efficacy of the community law.

“Besides, in a legal environment which tends to be evolving towards globalisation, as a result of the exigencies of good governance and human rights, the ECOWAS Court of Justice is required to take up its responsibility as a sure guarantor of established legal safeguards, notably via well-reasoned judgments, which for the purposes of implementation, would require collaboration among the member states.”

The Protocol establishing the ECOWAS Court was ratified in 1991. The supplementary Protocol on the court was adopted 10 years after.

Justice Monteiro recalled that the ECOWAS Court, as the judicial organ of the sub-region, had the primary mandate consisting of interpreting and applying the provisions of the July 24, 1993 Revised Treaty, the Protocols and Conventions, and other relevant legal instruments of the community.

She said, “Thus, our court is a community court whose assigned mission may further be sub-divided to comprise:

“Sanctioning member states defaulting on their obligations; adjudicating upon human rights violations brought before it; resolving disputes between the community institutions and their officials; and finally, serving as Arbitration Tribunal in accordance with Article 16 of the Revised Treaty.”

On the problem of non-enforcement of the court’s judgment, she called on the “High Authorities of ECOWAS” involved in matters relating to implementation of the decisions of our court, to address the problem.

He said, it was by implementing the court’s judgments that “West African citizens, whose right it is to seek justice before our court, can surely count on the assurances provided in the legal safeguards of the law, as exemplified in the landmark judgment on Case Concerning Hadijatou Mani Koraou v. Republic of Niger in 2009”.

Odinkalu applauded the achievements of the court but regretted the non-implementation of the court’s decisions.

He said, “In the first decade of its existence, the ECOWAS Court has delivered over 77 judgments in cases involving 11 states parties.

“Seventeen of these judgments were against institutional organs of the community.

“It has also delivered three against three advisory opinions. This is an output of which the court should be justifiably proud.

“Yet, while a lot has been accomplished, much remains to be done.

“This landmark of the first 10 years of the court is, thus, an opportunity also to examine the record of the court and address some of the challenges that it confronts.”

Though Odinkalu noted that not all decisions of the court required enforcement, as some were merely “declaratory or had the force of clarifying applicable rules prospectively”, he, however, said that compliance with the judgments of the court was essential to the credibility of ECOWAS and its institutions.

He added, “Of the 77 judgments so far delivered by the court, at least 25 contain specific dispositions or orders directed at no fewer than eight state parties and, separately also, at the commission of the ECOWAS.”

Odinkalu said if the trend of non-enforcement of the court’s judgments was not redressed, it could frustrate the realisation of the promise of the ECOWAS as captured in Declaration Political Principles of 1991.

He said, “Compliance is essential to the very nature of the judicial function. Habitual failure of compliance is an attack on the legitimacy of the institution and to the efficacy of its foundational instruments and dispositions.

“If not redressed overtime, failure of compliance derails the rule of law and could substitute vigilantism in its place.

“Failure to effectively address the challenge of compliance and enforcement with decisions of the ECOWAS Court could also impair the effectiveness of the court and frustrate the realisation of the promise of the community so formidably captured in the Declaration of Political Principles of 1991”.

Apart from the non-enforcement of the court judgments, Justice Monteiro said there were still problems associated with the court’s space.

She said, “The court needs to relocate into a more spacious environment where there would be several courtrooms.

“In that regard, we sincerely request the Federal Government of Nigeria to grant the request we made in the correspondence dated July 8, 2014, which was addressed to the Honourable Minister of Foreign Affairs of the Federal Republic of Nigeria.”

She also said the court still needed to recruit experts in the Portuguese language “given that the staff ratio for the Portuguese language at the court is rather too low”.

The seven set of judges of the court, who took over from their pioneering predecessors, were inaugurated by the Bureau of the Judicial Council at the legal year ceremony on Thursday.

The new judges took over from their predecessors who retired in June 2014 after spending 10 years on the court’s bench.

The new judges are: Justices Maria Monteiro (Guinea Bissau) – President; Prof. Friday Nwoke (Nigeria); Traore Jerome (Burkina Faso); Hameye Malhamadane; Prof. Alioune Sall (Senegal); Boiro Yaya (Guinea); and Micah Wright (Liberia).

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