How to Strengthen ECOWAS Court – Experts

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Human rights violations remain a recurrent challenge globally, moreso in Africa. The situation is not helped by weak institutions and disregard for rule of law.

There are institutions established to provide remedy where violations occur, but most of them are hobbled by poor funding and lack of operational facilities.

One of such institutions is the Community Court of the Economic Community of West African States (ECOWAS Court).

Its President, Justice Edward Asante (from Ghana), said the court is underfunded, leading to lack of adequate facilities and personnel.

He said the court’s position is made worse by the unwillingness of most West African leaders to enforce its decisions.

An example is the court’s October 5, 2016 judgment declaring unlawful, the detention of former National Security Adviser (NSA), Sambo Dasuki, by the Nigerian government.

Till date, the Nigerian government is yet to obey the order that Dasuki be released.

But, to the court’s Chief Registrar, Tony Anene-Maidoh, Nigeria has done better in the area of compliance with the court’s decisions, when compared with other member states.

Asante and Anene-Maidoh spoke on October 19 while receiving a group of lawyers and rights activists, led by Chima Williams, in Abuja.

Drawn from 10 countries in the continent, including Nigeria, Sierra Leone, Liberia, South Africa, Ghana, Senegal, Cote d’Ivoire, Mali and Burkina Faso, the visitors said they were members of the Public Interest Lawyering Initiative of West Africa (PILIWA).

They said they were visiting the court to learn about its operations and how they and other citizens could benefit from its activities.

The visitors, who hailed the court for its jurisprudential accomplishments so far, were disappointed by the condition under which it operates. They particularly, noted the evident dearth of necessary operating facilities.

The court has a single courtroom, that could sit less than 40 people at a time. Its major structure is a converted residential property donated to it years ago by the Nigerian government.

Asante, who noted that the number of the court’s judges has been reduced from seven to five, assured that the court will do its best to ensure that cases are expeditiously determined.

He said priority will be accorded human rights related cases in view of the fact that human rights violation is a serious issue in the continent, “because as at today, there are so many governments and heads of government, who are still inflicting all forms of rights violations on citizens.”

He added that it was the duty of the court to uphold citizens’ rights, particularly journalists, who are endangered because they expose the atrocities of those in authorities.”

Asante, however, noted that the court faces a major problem in the area of enforcement of the judgments, for which he sought the visitors’ assistance to impress it on member states to see the need to always comply with the court’s decisions.

He noted that the problem is so bad that so far, only three or four countries have taken the initiative to enforce the court’s judgments.

Asante expressed the hope that all member states will comply with the new provision in the court’s amended protocol, which requires each state to set up a system for the enforcement of the court’s judgments.

He noted that the number of judges in the court was inadequate. He said even though the number of cases was rising, ECOWAS recently reduced the number of judges from seven to five.

The decision, he said, needed to be revisited, because for now, about 106 cases are awaiting hearing, while the court has reserved judgment in 12 cases, to be delivered before the year ends.

Anene-Maidoh said the court was originally established to adjudicate on interstate disputes and to assist in realising ECOWAS’ economic agenda, including economic integration of the sub-region.

The Chief Registrar said the court’s human rights jurisdiction, for which the court has become renown, was donated to it by member states in accidentally.

He added that the jurisdiction, contained under Article 9(4) of the 2005 amended protocol, which allows the court to determine cases of rights violation that occur in member states, “was inchoate, fluid and indeterminate.

“First, we did not have a catalogue of rights to be enforced.  The protocol did not tell us the scope and nature of that human rights mandate.”

He said the court was only left to, on its own, chart its course in determining how to execute its human rights mandate.

On the issue of access, he noted that it was currently expensive for individual litigants to access the court. He noted that since the court only has its registry in Nigeria, litigants are required to covey all their processes to the registry in Abuja.

He said: “We recognise two weaknesses in the system. The first is that of distance, which is because we do not have sub-registries in member states yet.

“We have spoken about the need for this court to have a sub-registry in every member state, so that lawyers, irrespective of their location, within the sub-region, can file without having to come to Abuja.

“The second problem is the absence of funds, in the form of legal aid funds, with which the court could assist indigent litigants, who cannot afford the cost of hiring a lawyer and pay for other logistics while in Abuja.”

On the issue of enforcement of the court’s decisions, Anene-Maidoh noted that, although the 2005 amended protocol places, on each member state, the responsibility to enforce the court’s judgments and appoint a national authority to coordinate such enforcement, only five out of the 15 member states have complied.

He gave the names of the five that have complied as Guinea, Nigeria, Mali, Burkina Faso and Togo. He said the failure of the others to comply has made it difficult for the court to provide accurate data as it relates to enforcement of its decisions.

Anene-Maidoh also identified the challenge of language. He said because the court operates in three languages – English, French and Portuguese – proceedings take a while, because court   processes and additional exhibits brought in one language, must be translated into the other two languages before hearing is conducted.

He said the reduction of the number of judges to five makes it impossible to constituted a panel of three judges, who speak and understand any of the three languages.

Anene-Maidoh however noted that the court’s story is not all about challenges. He said the court also has some advantages, particularly in its power to adjudicate on cases without the applicant having to first, exhaust local remedies before approaching the court.

According to him, under Article 10 of the court’s protocol, individuals can bring complaints before the court, but subject to meeting three key conditions – the applicant must not be anonymous; the case must not be pending before another international court and that the nature of the clam must be international.

Some of the visitors expressed delight about the court’s activities. They promised to help promote the court’s activities in the sub-region and even beyond. They urged member states to live up to their obligations to enable the court function effectively.

Williams urged member states, who are yet to do so, to urgently set up the required system for the enforcement of the court’s judgments in order not to turn it into a toothless bulldog.

He also advocated for enhanced funding to enable the court meet its obligations and provide the facilities needed for its operations, among which is a befitting court complex.

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