Legality Of Closure Of Nigeria’s Land Border Could Be Tested At ECOWAS Court — Odinkalu

A former Chairman of the Governing Council of the National Human
Rights Commission [NHRC] of Nigeria says the ongoing blockade of
regional trade by Nigeria through the closure of its land borders
could be an opportunity for the ‘affected States and organs of the
region to fully take advantage of the judicial organ of the
Community to test the legality of the measure.”

Delivering the keynote address at the ongoing international
conference of the Community Court of Justice in Accra, Professor
Chidi Odinkalu said such a recourse by the affected States and
organs will enable the regional court determine the compliance of
the decision with the country’s ‘Treaty obligations and its
proportionality to any possible justification.’

He characterized the attitude of the affected States and organs
as “an upshot of the overwhelming informalisation of economic
integration in the Community,’ exemplified by the ‘reliance by
States and citizens on diplomatic exchanges and good offices while
diminishing the judicial and institutional organs of the
Community,’ which explains why the Court has in the 18 years of its
existence, not received any inter State case of any
significance.

Professor Odinkalu, who is Senior Team Manager of the Open
Society Justice Initiative said the timing of the conference
coincided with a ‘time of multi-faceted crises for regional
integration within and beyond the region, notably Nigeria’s joint
border security exercise under which the country imposed a blockade
of its land border.

“This closure appears to have been one with little regard for
the niceties of the obligations of Nigeria under regional
integration regimes of ECOWAS, in particular, the flagship Protocol
on Free Movement of Persons with neither Nigeria nor regional
institutions in a haste to bring this measure into compliance with
the laws and procedures of ECOWAS.

Whether borne out of the fear of Nigeria or consideration of the
irrelevance of the laws and institutions of the Community, he said
the action was not ‘a great advertisement for the project of
regional integration in which mass expulsion of Community nationals
still take place.’

He also identified other challenges to include ‘coming pressure
from accusations of profound democratic deficit and democratic
legitimacy,’ illustrated by Morocco’s application for membership
which will bifurcate the legal regimes of the Community and result
in a two-track ECOWAS in which some members will subscribe to some
but not all of the Community standards with the risk of imperiling
the Community.

“Consideration could also be given to involving the judicial
organ of the Community in decisions on membership by getting the
Court to verify whether in fact, putative members fulfill the
threshold criteria and values for membership of the Community,’ he
added.

Professor Odinkalu, who was the Guest Speaker at the conference,
described the experience of regional integration in West Africa as
mixed with considerable dissonance between the institutions on one
hand and sovereign support for integration on the other.

Citing a 2013 study by Karen Alter, Laurence Helfer and
Jacqueline McAllister, the guest speaker said that ‘by all
accounts, ECOWAS has made little progress towards its professed
goal as trade flows among West African nations remain extremely
low; tariffs, customs regulations, non-tariff barriers, and
roadblocks hinder cross border trade,’ compounded by a lack of
diversity in regional trade and the poor infrastructure.

This, he said, explains why colonial metropoles remain among the
biggest trading partners of the countries of the region.

Concluding, he said that ‘the challenge in the near term is to
close the gap between the promise of economic integration and the
lived experiences of the region’s peoples and progress in this
project will be marked at least in part by how much governments and
citizens of the Community not only feel free to utilize the Court
of Justice as an aid in protecting and enforcing the legal
obligations of the Community but also in how they collaborate in
building habits of compliance with these obligations.’

The 2019 international conference is being held on the theme
Economic Integration of West Africa: Challenges and Prospects.”