ECOWAS Court as a Weak Alternative to Nigerian Courts. Daily Law Tips (Tip 794) by Onyekachi Umah, Esq., LL.M, ACIArb(UK)
Introduction:
As at today, Nigeria as a democratic state, has no judiciary, as the courts are closed. While crime is at its highest level in Nigeria, there are no courts to adjudicate their cases. Even in the Nigeria’s over populated correctional centers, where mere suspects are held for years on the awaiting-trial, help is far as judges are not working. With the rise in rape cases and the violation of human rights, victims are being denied justice as the court rooms are locked. Most of the elected 36 Governors spread across Nigeria, have failed and refused to allow their state judiciaries to work and enjoy financial autonomy. They have denied and frustrated judicial independence ad access to justice for more than 30 days, since April 2021.
With the above picture of Nigeria, litigants and victims are in dire need of justice, since the last hope of the common man is asleep. Smart lawyers are already engaging a few combinations of alternatives to courts to squeeze out justice for their clients. Among the common alternatives, are: the engagement of administrative offices/institutions, use of arbitration platforms, complaints to the National Human Rights Commission and filing of cases at the ECOWAS Court of Justice. This work gives a brief overview of the ECOWAS Court of Justice and how the insincerity of Nigerian Government and other Member States, has weakened the ECOWAS court.
Meet the ECOWAS Court of Justice:
Nigeria lies on the West African Region of Africa, on the Sub-Sahara. For economic integration in the West African region, Nigeria and other 14 West African countries founded the Economic Community of West African States (ECOWAS) in 1975. The ECOWAS countries are Benin, Burkina Faso, Cabo Verde, Cote d’Ivoire, The Gambia, Ghana, Guinea, Guinea-Bissau, Liberia, Mali, Niger, Nigeria, Senegal, Sierra Leone, and Togo, since Mauritania exited in 2002. Countries under the ECOWAS are referred to as Member States and in this work, we will use the term interchangeably with ECOWAS Countries.
Among the challenges to economic relationships of countries, is access to justice; from human rights, immigration law, environmental law, criminal law to business law. Hence, there was need for the ECOWAS to form a court for all Member States, instead of subjecting all Member States to the individual national courts of Member States. With this and other reasons, the ECOWAS Court of Justice was created.
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The ECOWAS Court of Justice (ECOWS Court) is located in the city of Abuja, in Nigeria. The Court is manned by judges from the Member States of the ECOWAS. The court has powers to settle disputes relating to ECOWAS regulations; disputes relating to the ECOWAS and cases of violation of human rights by any ECOWAS country (Member State). The last part of the powers of the ECOWAS Court is the most important to this work, because it empowers any person in Nigeria to sue any government in Nigeria for any violation or attempted violation or fear of any violation of human rights of any person, company or institution in Nigeria by such government.
Since the ECOWAS Court has powers to entertain and handle cases of human rights against the government of Nigeria, the ECOWAS court is a good alternative to the courts in Nigeria. Furthermore, unlike the State High Courts and the Federal High Courts that can handle cases of human rights against government and their judgment can be appealed against, judgments of the ECOWAS Court are finally. The judgments of the ECOWAS Court is full and final on any issue the court handles. So, the ECOWAS Court is a Supreme Courts of its own, although case come to it as court of first instance (fresh cases are filed to the court, directly).
Persons in Nigeria can approach the ECOWAS court for justice, even without first approaching a court in Nigeria. One does not need to first be to a court in Nigeria or any ECOWAS country, before going to the ECOWAS Court. Also, having a case in the courts in Nigeria or in any ECOWAS Court, does not affect the rights of any person to bring that same court to the ECOWAS Court. So, to avoid the unnecessary delays in Nigerian courts and its almost endless appeals, one can rush to the ECOWAS Court, since the judgment of the ECOWAS Court is final and the court is also in Nigeria.
The Weakness of the ECOWAS Court of Justice:
The same countries that created the ECOWAS and the ECOWAS Court of Justice, are the same countries that have made mockery of the court and weakened it. The greatest weakness of the ECOWAS Court is on the enforcement of the judgments of the court. Like the theory of “You can force a Carmel to the stream but you cannot force it to drink water”, so have ECOWAS Countries being dragged to the ECOWAS Courts and judgments given against them, but such judgments not being enforced. Nigeria will be used as a case study, here.
Generally, by the protocols of the ECOWAS court, judgments of the ECOWAS Courts are to be enforced in the ECOWAS Countries. And, the enforcement of judgments is to be conducted by the system of defaulting ECOWAS Country on the defaulting ECOWAS country, once the judgment is confirmed to be from the ECOWAS court. This means that a judgment of the ECOWS Court against the Federal Government of Nigeria is to be verified and enforced by the Federal Government of Nigeria on the Federal Government of Nigeria.
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The insincerity of ECOWAS Countries has seen ECOWAS Countries disregarding the judgments of the ECOWAS Courts. This is by the ECOWAS countries failing and refusing to enforce ECOWAS court’s judgements made against them. The common flimsy excuse of ECOWAS Countries like Nigeria, on their refusal to enforce the judgment of the ECOWAS Court is the failure of the country to domesticate the concerned/specific protocols of the ECOWAS. Generally, the constitution of Nigeria prohibits the enforcement of any international law or instrument that is not domesticated by the National Assembly (the Federal Legislature of Nigeria).
The above excuse of Nigeria and other defaulting ECOWAS countries is lame and a mark of dishonesty, in the eyes of regional cooperation. The ECOWAS Court has found such excuses as invalid in the cases of Moukhtar Ibrahim Aminu v. Government of Jigawa State & 3 Ors and Musa Saidykhan v. The Republic of Gambia. The logic here is that, no doubt, Nigeria is a sovereign nation with the powers to make laws and rule itself. However, the moment Nigeria joined and signed the ECOWAS
Treaty (the legal document that created the ECOWAS), Nigeria waived (or submitted) part of its sovereign powers to the ECOWAS. It is the submitted powers of sovereign countries like Nigeria, that the ECOWAS enjoys and flex as a as a super national authority. As such, all ECOWAS countries are bound by the laws, protocols, decisions, judgments and obligations of the ECOWAS, after all, the ECOWAS Treaty that was signed and domesticated by Nigeria and other Member States is the legal basis for the subsequent protocols and judgments of the ECOWAS and the ECOWAS Court, and as such the protocols and judgments are deemed domesticated in the eyes of the ECOWAS Court.
The failure of an ECOWAS Country to domestic a protocol of the ECOWAS is a mere in-house management affair of the country and not the responsibility of the ECOWAS, so far as the Member State signed and agreed to the ECOWAS Treaty. There are laid down procedures for an ECOWAS country to object to a protocol of the ECOWAS and failure to domesticate a protocol is not one of them. As such, the ECOWAS and other ECOWAS countries should not suffer because of the laxity and insincerity of an unscrupulous ECOWAS countries, else the ECOWAS will be a mere joke. No ECOWAS country is to be seen to work against the ECOWAS or its agencies (the ECOWAS Court).
To this end, the ECOWAS Treaty mandates the ECOWAS to sanction any Member State that fails to honour its obligations to the ECOWAS. Sanctions of ECOWAS includes; exclusion from presenting candidates for positions, suspension of voting rights, suspension of ECOWAS loans and projects in the territory of the defaulting Member State. In reality one is not sure if any ECOWAS country has been sanctioned by the ECOWAS for refusal to enforce its judgment, even as the the judgments of the
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ECOWAS Courts are continually violated by Member States. Presently, Nigeria has refused to enforce the ECOWAS Court judgment that ordered that Sambo Dasuki be released from custody (Sambo Dasuki v. Federal Republic of Nigeria) and also the judgment that the Federal Government of Nigeria should provide free and basic education for Nigeria children (SERAP v. Federal Republic of Nigeria & Anor).
Conclusion:
The continued closure of courts in Nigeria has woken the hunger for alternatives to Nigerian courts, among litigants and lawyers. The list of the alternatives to the Nigerian courts include; administrative offices/institutions, arbitration platforms, the National Human Rights Commission and the ECOWAS Court of Justice.
In terms of jurisdiction, the ECOWAS Court is the most powerful, however the least in enforcement of the judgment of the court. Since enforcement of judgments/awards/orders enables litigants to enjoy the fruits of the labour, then enforcement is vital to all dispute resolution option. Since judgments of the ECOWAS Court are mostly unenforced in ECOWAS Countries (including Nigeria), this makes the ECOWAS Court the weakest alternatives to Nigerian courts.
My authorities, are:
- Sections 1, 2, 3, 4, 5, 6, 12, 33 to 45, 318 and 319 of the Constitution of the Federal Republic of Nigeria, 1999.
- Articles 1, 2, 12, 15, 57, 76, 77, Economic Community of West African State (ECOWAS) Revised Treaty, 1993.
- ECOWAS Protocol A/P1/7/91 of 6 July 1991,
- ECOWAS Supplementary Protocol A/SP.1/01/05 of 19 January 2005
- ECOWAS Supplementary Protocol A/SP.2/06/06 of 14 June 2006,
- ECOWAS Regulation of 3 June 2002
- ECOWAS Supplementary Regulation C/REG.2/06/06 of 13 June 2006.
- The judgment of the ECOWAS Court in the case of Moukhtar Ibrahim Aminu v. Government of Jigawa State & 3 Ors (Suit No.: ECW/CCJ/APP/02/11)
- The judgment of the ECOWAS Court in the case of Musa Saidykhan v. The Republic of Gambia. (Suit No.: ECW/CCJ/APP/11/07)
- The judgment of the ECOWAS Court in the case of Sambo Dasuki v. Federal Republic of Nigeria (ECW/CCJ/APP/01/16)
- The judgment of the ECOWAS Court in the case of SERAP v. Federal Republic of Nigeria & Anor (ECW/CCJ/APP/08/08)
- Collins Okeke & Kikelomo Lamidi, “Nigeria: Enforcement Of The Judgments Of The ECOWAS Court” (Mondaq, 20 November 2018) <https://www.mondaq.com/nigeria/human-rights/755842/enforcement-of-the-judgments-of-the-ecowas-court> accessed 19 May 2021.
- Onyekachi Umah, “An Alternative to Courts for Human Rights Cases” (LearnNigerianLaws.com, 14 May 2021) <https://sabilaw.org/an-alternative-to-courts-for-human-rights-cases/> accessed 19 May 2021.
- Onyekachi Umah, “How and When Nigeria Can Exit the AFCFTA” (LearnNigerianLaws.com, 16 March 2021) <https://sabilaw.org/how-and-when-nigeria-can-exit-the-afcfta/> accessed 19 May 2021.
- Pic credit: africa-press.net
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