ECOWAS Court…Held up by challenges – TheNigerialawyer

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.