THE LEGAL FRAMEWORK FOR THE ESTABLISHMENT OF ECOWAS COURT OF JUSTICE
ABSTRACT
The Economic Community of West African State (ECOWAS) is a confederation of 15 states, that chose to come together to forge a relationship that is geographically expressive, but economic, political and social development driven. ECOWAS was created in 1975 to replace the Customs Union of Western African States originally created in 1959 to redistribute customs duties collected by the coastal areas of Western Africa. The ECOWAS Court of Justice was established as the machinery that will regulate the conduct of the different states that have come together to forge a relationship. This will aid in regulating the conduct of states, especially as there are different legal systems, currencies, cultures and languages. This court became necessary as conflicts resulting in this relationship, cannot be settled by the court of individual states, hence the need for the court of the community. The aim and objectives of the thesis is to analyze the factors influencing the effectiveness of the ECOWAS Court, it’s organs and relationship to one another, and also focusing on the Court of Justice as an organ in the integration process. In dealing with the task of this thesis, doctrinal research methods is applied. Doctrinally, the study utilizes primary sources like statutes, treaties, protocols and pacts, as well as secondary sources, mostly seminar and conference materials, journals of the community and law journals. After gathering of information, the following are observed; that provisions made for training of court officials are inadequate; It is further observed that the refusal of a member state to apply the decision of the court is a failure to fulfill its obligations which may attract sanctions. It is also observed that with regard to access to the court by applicants other than member states and the chief executive of the ECOWAS Court, access is also available to individuals and corporate bodies by articles 9 and 10 of the protocol. Based on the observations above, the study recommends that for the ECOWAS Court to be able to contribute its own quota in dealing with the long term goals, substantial attention should continue to be focused on creating an appeal court where litigants who are not satisfied with the judgment of the ECOWAS Court can further ventilate their grievances. This study has contributed to knowledge by creating greater awareness of ECOWAS Court of Justice through effective legislation.
TABLE OF CONTENTS
Title page - - - - - - - - - i
Certification - - - - - - - - - ii
Approval - - - - - - - - - iii
Dedication - - - - - - - - - iv
Declaration - - - - - - - - - v
Acknowledgements - - - - - - - - vi
Abstract - - - - - - - - - vii
Table of Cases- - - - - - - - - viii
Table of Statutes - - - - - - - - x
List of Abbreviations - - - - - - - - xi
Table of Contents - - - - - - - - xii
CHAPTER ONE
INTRODUCTION
1.1 Background to the Study - - - - - - 1
1.2 Statement of the Problem - - - - - - 3
1.3 Aim and Objectives - - - - - - - 5
1.4 Specific Objectives - - - - - - - 6
1.5 Research Method - - - - - - - 7
1.6 Literature Review - - - - - - - 7
1.7 Scope of Work - - - - - - - 14
CHAPTER TWO
ESTABLISHMENT OF ECOWAS COMMUNITY COURT OF JUSTICE
2.1 Establishment of Ecowas Community Court Of Justice - - 15
2.2 An analysis of the Legal framework for the operation of the ECOWAS
Court of Justice - - - - - - - 17
2.3 Composition of the Court - - - - - - 18
2.4 The Need for the Community Courts - - - - - 19
2.5 Parties who can Approach the Court - - - - - 22
2.6 Pre-Action Measures - - - - - - - 23
2.7 The Status of the Court in International Law - - - - 24
2.8 Jurisdiction of the Community Court - - - - - 27
2.9 Action for Human Right - - - - - - 31
2.9.1 Independence of the Courts - - - - - - 33
2.9.2 Administration of the Court - - - - - - 34
2.9.3 The principles Underling the working of the Courts - - - 41
2.9.4 Issues of Rights, Legal Persons and Citizenship before International
Courts - - - - - - - - - 45
CHAPTER THREE
DEFINITION OF SOURCES OF LAW
3.1 Definition of Sources of Law - - - - - - 51
3.2 Evolution of ECOWAS Law - - - - - - 65
3.3 A Comparative analysis of the practice and procedure of ECOWAS Court
of Justice with ICJ and EUC - - - - - - 67
3.4 Commencement of Action - - - - - - 69
3.5 Practice and Procedure of ICJ- - - - - - 73
3.6 The ICJ and Regional Courts - - - - - - 76
3.7 History of European Union Court of Justice - - - - 79
3.8 Jurisdiction of the European Union Court of Justice - - - 79
CHAPTER FOUR
PROBLEMS OF JURISDICTION AND SCOPE OF BINDING AUTHORITY
4.1 Jurisdiction of the Community Court - - - - - 95
4.2 Locus of Individual and Corporate Organizations - - - 110
4.3 Total vs. Restrictive Immunity: Nigerian Approach - - - 114
4.4 Matters over which Court can Act - - - - - 116
4.5 Ability to Litigants to Attend Access - - - - - 117
4.6 Strategies for Effective Access to the ECOWAS Court through the
Registry - - - - - - - 119
4.7 Referred Jurisdiction from National Court - - - - 120
CHAPTER FIVE
ENFORCEMENT OF JUDGMENT OF THE ECOWAS COURT OF JUSTICE
5.1 Provision on Enforcement of Judgment of the Community Court of
Justice - - - - - - - - 131
5.2 Streamlining National Laws through Legislative Process - - 137
5.3 The Nomination Exercise and Control of Judges - - - 140
5.4 Discord of Authority: ECOWAS v. National Court - - - 144
5.5 An Analysis of the factors Affecting the Effectiveness of the Court - 146
5.6 Strategies for Effective Access to the ECOWAS Court through the
Registry - - - - - - - - 152
CHAPTER SIX
CONCLUSION
6.1 Summary - - - - - - - - 157
6.2 Observations - - - - - - - - 157
6.3 Recommendations - - - - - - - 159
6.4 Contributions to Knowledge - - - - - - 160
References - - - - - - - - 162
CHAPTER ONE INTRODUCTION
1.1 Background to the Study
In October 1999, the Economic Community of West African States (ECOWAS) decided to establish a court of justice following a two-day meeting of justice ministers in Abuja. The court shall address issues from member states and institutions of ECOWAS, as well as issues relating to defaulting nations. The Economic Community of West African State is a loose con-federation of 15 Nation States, who chose to come together to forge a relationship, that is geographically expressive, but economic, political and public development driven. ECOWAS was created in 1975 to replace the Customs Union of West African State governments originally created in 1959 to redistribute custom duties collected by the coastal states of Western Africa.1 The treaty of the Economic Community of African State was revised at the Cotonou summit of July 1993 at which time the existent tribunal originally envisioned, was replaced with a Community Court of Justice.
The revision of the treaty (including the addition of the Court of Justice) was intended to help the organization meet its goal of an Economic Union, and also enable members settle their disputes. The modified treaty entered into force in 1995, while the judges of the Community Court of Justice were appointed only in January 30, 2001.
However, the Court got one stringent limitation on the impact it could have in the Community- a narrow field of access. Only the Authority of Heads of State and government (the executive of the community comprised of all the Member States) and the member states acting separately were permitted to initiate contentious cases in the Court. The power to request advisory opinions on the Treaty was limited to the Authority, the Council of Ministers, Member States, the Executive Secretary and other organizations of the community.
1 ECOWAS Treaty of 25/5/1975.
The effect of this limited access to the Court was that until 2003, the court was idle.
In 2004, in a landmark case of Olajide Afolabi .v. Federal Republic of Nigeria2, filed by an individual businessman against the government of Nigeria for a violation of community law in the closing of the border with Republic of Benin, the court held that under the Protocol3, only member state could institute cases. The court’s ruling sparked off a discussion, headed by the judges themselves, over the need to amend the protocol to allow for legal and natural individuals to have standing before the court.4
In January 2005, the community adopted the Additional Protocol5 to permit individuals to bring suits against member states. Beyond this monumental change, the Council of Ministers took the opportunity to revise the jurisdiction of the court to include review of violations of human being rights in all member states.
The need for this Community Court cannot be over emphasized, because as different states have come together to forge a relationship, there will be need to have the machinery that will regulate their conduct, especially as there are different legal systems, currencies, culture and languages etc. There is bound to be conflicts resulting from this relationship, which cannot be settled by the Court of individual states, hence the need for the Court of the Community. According to Omorogbo:
Conflict problems are inevitable… Disputes that might arise are better settled by a Community Court rather than by domestic Court.6
The revised ECOWAS Treaty of 1993, has provided a concrete foundation on which the ECOWAS Court is built, away from the position in the 1975 treaty, art. 56 provides thus:
2 Case no ECW/CCJ/04 p72 Para 62.
3 Supplementary Protocol A/P. 1st July 1991.
4 Banjo, A. “The ECOWAS Court and the Politics of Access to Justice in West Africa” Africa Development, Vol. xxxll, No 12007, 69.
5 Supplementary Protocol A/SP/01/05.
6 Omorogbo, Y. The Legal Framework for Economic Integration in the ECOWAS Region: An Analysis of the Trade Liberalization Scheme 5 RADIC 1993 p. 365.
Any dispute that may arise among the member state governments regarding the interpretation or application of the treaty shall be amicably settled by direct agreement.
In the event of failure to settle such dispute, the matter may be referred to the tribunal of the community by a party to such disputes and the decision of the tribunal will be final.
Also Art 4 of the 1975 treaty did provide for “… the tribunal of the Community …” as one of the institutions of the ECOWAS.
However, the ECOWAS Community Court as is being examined in this work, is created by Article 6 and 15 of the revised treaty of 1993, and rooted by Protocol of 1st July 1991, Completed by the supplementary protocol A/Sp. 1st January 2005. The court itself was put in place at the 24th session of the ECOWAS Authority of Heads of state and Government, which held at Bamako, Mali from the 15th through the 16th of December 2000. Art 6 of the treaty places the Court at (No 5), on the list of establishments of the community.
The provisions of the Protocol and supplementary Protocol are in pursuance of the basic aims of the founding fathers of ECOWAS, targeted at providing the proper framework for the creation of an international court, to which countries may submit their disputes. Though the Court did not take off immediately (as it only did so from 2001), it has had many years of looking at what the international court of justice, the African Court of Justice, the Western European Court of individual rights, and various other courts of a global or inter regional grouping have to function with.
The dialectics of international politics, i.e, of giving up sovereignty and keeping it at the same time, the jurisprudential problems of the efficiency of laws, the place of the court in the juridical hierarchy of states, the jurisdictional problems of geography, will
increasingly become matters that the terse wordings of the treaty may not treat completely.7
1.2 Statement of the Problem
It would appear that following the establishment of the ECOWAS Court of Justice, there has arisen subtle but effective agitation for the widening of the scope of the jurisdiction of the court over the issues it can deal with and the issue of locus standi before it. Effectively, the adoption of the Supplementary Protocol (Article 33 of protocol A/p. 1st July 1991 (Community Court of Justice Amendment Protocol) and the subsequent coming into force by 1st January 2005 has set down the new covenant and aspirations on the work of the ECOWAS Court by realigning and expanding it’s Jurisdiction geographically, demographically and juridically.8
The new form is a reaction to the unwholesome and long held perception of the ECOWAS institution over the past years of its creation, as a body that lacks effective mechanism for implementing a vital part of the integration process “Court for the Community.9 As has been pointed out earlier10, in spite of the provisions calling for the community Court in the 25th May 1975 treaty as well as art. 6 and 15 in the modified treaty of 1993, it was not until the conference of the 24th session of the ECOWAS authority of heads of state and government, which was held at Bamako in Mali from the 15th to 16 Dec 2000 that the court was actually set up.
Since then, situations have shown up in the Court of ECOWAS which have illustrated the overall nature of the integration process while highlighting both the achievements and its under achievements, especially regarding its avowed objectives. Whilst it is a welcome development, the locus granted to individuals and even corporate and business bodies, the locus granted to state courts to seek referral and interpretation, the locus
7 Kunig P., Regional Protection of Human Rights by International law, the Emerging African system, Beaden Baden: Nomos verlagsgesellschaft,1985 p. 121.
8 Supplementary Protocol (Art 33 of Protocol A/P. 1st July 1991 Community Court of Justice Amendment Protocol) and the subsequent coming into force of A/sp. 1st January 2005.
9 Ibid.
10 Gasiokwu, M.O.U, International Law and Diplomacy (Selected essays) Enugu, Changlo Ltd 2004) p. 249
granted to persons, or firms who enter into an agreement opting for ECOWAS Court as its court of choice, runs counter to so many founded cannons of law, as well as a lot of practical complications. The assumption of the function of the arbitration tribunal under Article 16(1) of the Revised Treaty 1993, pending the establishment of the said tribunal poses a departure from the basis of the creation of the tribunal as a complementary out fit, not a co-terminous one.
The procedure for referrals, enforcement of judgments or directives, especially ones that are described by the treaty and protocol as binding, posses a lot of cross country problems, as well as a huge impact on the delivery and administration of justice. The growing legal frontiers that is created therein, will task the minds of litigants and jurists within the ECOWAS Countries, more so Nigeria, where the court is located, and majority of the cases arising on the ECJ, have originated from or in connection with.
The court rules which have been made in pursuance to the protocol, also raises a few issues in the administration of justice. For example to modern provision of instituting action by faxes or through e-mail, corresponding with a provision that once an action is instituted, the Courts take judicial notice of its processes.
The operations of the court also exposes the logistical problems of ECOWAS, in relation to novel provisions of moving the location of the court to respond to the needs of local litigants.
Specific questions that immediately arise are:
a. How can a person, institution, or authorities be seised of this jurisdictions?
b. What are the legal and institutional framework for the effective operation of the court?
c. Are these provisions adequate?
d. What enforcement techniques are there, for implementing the decisions of the Court?
e. How do these enforcement methods enhance the court’s performance in the dispensation of justice and in the implementation of the goals of ECOWAS.
These problems and many more need evaluation and preferment of suitable working mechanism.
1.3 Aim and Objectives
This study is aimed at analyzing the factors affecting the effectiveness of the court (ECOWAS), its organs and relationship to one another, then focusing on the court of justice as an organ in the integration process. It then examines the contents of the various legal provisions that make the framework efficacious in the pursuit of justice, equity and fair play.
1.4 Specific Objectives
The specific objectives are as follows;
a. To determine the essential provisions of the treaty, protocols- the instruments that the concept, practice and procedure of the ECOWAS Court of Justice is hinged upon.
b. To evaluate the position of the Court of Justice in the league of international regulation and in the hierarchy of courts of its nature and juxtapose it alongside the workings of the laws and regulations of related home courts.
c. Identify lacunae found in the selected laws and proffer suggestions for filling the gaps.
d. To put in context, the many issues of states, the ECOWAS citizens and their rights, under the expanding scope of the powers of the ECOWAS Court vis a vis its threatening look on local courts.
e. provoke further research in this area of law.
1.5 Research Method
The study adopts doctrinal approach to the issues raised. Doctrinally the study utilizes primary sources like statutes, treaties, protocols and pacts, as well as secondary sources of mostly, seminar and conferencing materials, journals of the community and law publications. An overview of the rudiments of international laws as it generally affects integration organizations similar to the ECOWAS, practice and conventions existing for the establishment of similar courts as well as their enabling statutes was carried out. Following this, modern state and community practice in Europe and in the Latin Americas, the Southern Africa areas, is examined and weighed along with the workings of modern political organs and emergent integrative units of the type of ECOWAS Court.
Reports of the cases currently being handled, in the ECOWAS parliament alongside the views of attorneys for some of the community states, have been sought and evaluated alongside the views of practitioners, the views of the heads of the administrative units as well as those who are conversant with the new role the court is to play. Also oral interviews are conducted as a way of conditioning and complementing the library structured research.
1.6 Literature Review
As would be expected, a lot has not been written on the subject of the ECOWAS Court. However the examination of issues which are the subject matter of the areas for study in this work reveal a lot of general but applicable literature. The ideas of community Court have been canvassed into living, and in areas where they exist, have become subject of criticisms and reviews. The views of learned authors as to the concept of jurisdiction as relevant to community courts and subject of rights as attributable generally and particularly to nation state. The modus of access by European citizens to the European
court of Justice has been also severally written upon. Many of these studies show that the maxim “Ubi jus, ubi remedium” lie at the bottom of the establishment of courts.
With the basic principle of “Uti possidetis” holding African countries to their colonial borders, and the realization that the international community does not intend to change its mind, cooperation for survival is the only option. Learned authors have therefore tried to enquire and profess positions on what and how the ensuring treaties and conventions ought to be treated with regard to their workings and acceptance in international law. This has given rise to the monists-who assert that municipal law are an integral part of a universal legal order which international Laws is also a part of, because the ability of a state to exercise any capacity, derives from the idea of law. As a result, municipal law and international law are part and parcel of one system of law generally.
However, Kunz in his book, the changing laws of Nations11, believes that international law and Municipal law are different systems; this is so because there is a difference in the content and scope of the laws. The first is the difference in source, since for instance, Municipal laws are derived from customs and practices developed within fixed boundaries of the state, along with statutes from its legislature, whereas international laws comes up out of traditions and agreements. Furthermore as the subject of state law are individuals and companies within a state, the subjects of international law are solely the state and international organizations.
Thirdly, whereas the municipal law is law of the sovereign state to its subject, the problem of international law, does not mean that the issuing authority is imposing law from a position superior to the state. Although Kunz’s work addresses the problem of the position of Municipal rule in international law and vice versa, it did not give the philosophical basis behind the lifestyle of trans-national Courts, this is the lacuna this work intends to fill.
11 Kunz J.L The Changing Laws Of Nations, (Ohio: Ohio University press, ) (1968) p.123
Given these positions, Gasiokwu,12 posits that a third theory which holds more appeal in present day reality is the Harmonization theory. By this theory, neither the monist nor the dualists are accepted as conclusive theories, as the logical consequence of the theories do not agree with the manner of functions of international and municipal courts and organs. He posits that the starting point of legal order is man himself, with regards to his fellow man. That man falls within the jurisdiction of the international and municipal legal systems and therefore international law and municipal legislation should be seen as concordant body of doctrines, each autonomous in the way it is directed at a specific and in some ways exclusive part of human conduct, but all are harmonious in their total aim of human good. Gasiokwu has also attempted to address the problems associated with ECOWAS and its protocols but did not examine the ECOWAS Court of Justice as an organ of the community.
The issue of the way the treaties between nations is treated is very germane to the workings of any organization whose creation is with a partial surrender of sovereignty and consequent acceptance by the domestic authority setting up the contracting government. Whenever there is a conflict between the provision of the treaty and the local law, the issue of primacy would become relevant, according to Brownlie.13
Antipathetic to the legal corollaries of the existence of sovereign states and reduces municipal law to the state of pensioner of international law.14
He further contends a system where a nation’s laws play a secondary role to international law cannot be said to be consistent with the status of statehood.
12 Gasiokwu, M.O.U, International Law and Diplomacy (Selected essays) (Enugu, Chenglo Ltd, 2004)
13 Brownlie, I, Principles of International Law (3rd ed.) (Oxford: Daredon Press, 1979) p. 34
14 Brownlie supra p. 84.
The concept of sovereignty which Brownlie based his argument is, according to Kelsen, necessary juridical conception, necessary as the expression of the unity of a legal system. Sovereignty can therefore only be supreme and exclusive, an attribute of the highest legal order of international law cannot be said to be consistent with the status of statehood.15
However Starke argues that the transformation is the theory where the laws as made by international bodies ought to be given acceptance through a local enactment to bring it into use in the locality, and validates the extension to individuals. This position probably explains the requirement in the constitutions of several African and West African Countries e.g S. 12(1)16 of the 1999 Constitution, of the Federal Republic of Nigeria which calls for the legislation of international agreements into Nigeria law by its legislature to take it into being. Treaty is common term to include accords, pacts, agreements, charters, conventions, covenants, protocols, statutes as contained in Art. 2 of the Vienna convention on laws of treaties and as explained by Meyers in “The titles and scope of treaties”17 The organization created by treaty, such as ECOWAS has acquired the capacity and power of their own. Hence the problem of incorporating them into municipal law before they have effect on the individuals within the municipal establishing. These organizations now have a personality of their own, as seen in the Reparation for Accidental Injuries Case.18
Once countries get together for the purpose of setting up an organization, for the purpose of Economic, social and political integration, it is expected that you will see either war or peace. Njemanze19, in his publication “The legal battle between Cameroun and Nigeria over Bakassi Peninsula”. State whether we have battle or peace, there has to be a Cause. To prevent war, we need to find a way to stop it-to cause it to stop. To have
.