Why Nigeria, others are not obeying ECOWAS court judgements —Judicial Council

Chief Justices of ECOWAS states, under the aegis of the ECOWAS Judicial Council met in Abuja last week to take stock. SUNDAY EJIKE was there.

In his capacity as the Chairman of the Economic Community of West African States (ECOWAS) Judicial Council, the Chief Justice of Nigeria (CJN), Justice Olukayode Ariwoola last week, presided over a three-day statutory meeting of the Council held for the first time in Nigeria.

A key issue on the agenda of the meeting which held at the National Judicial Council (NJC) within the Three Arms Zone in Abuja, Nigeria’s capital, was the refusal of ECOWAS member-states to enforce the judgements and rulings of the regional court.The Bureau of ECJ which Nigeria now heads, also came up with reasons for non-compliance by member-states.

A major reason pointed out, is the non-existence of an appellate chamber, to ventilate grievances against the positions of the regional court.

A committee has now been set up, to look at the possibility of setting up an appellate chamber of the court.

It would be recalled that, on May 9, 2023, during the first regular session of the 5th Economic Community of West African States Parliament in Abuja, the President of the Court, Edward Asante, stated that more than 106 decisions reached by the Court, representing 70 per cent, are yet to be implemented by the member states.

Asante added that 11 court rulings against ECOWAS were not complied with.

Chief Justices of ECOWAS member states, from Ghana, Guinea-Bissau, The Gambia, Liberia, Sierra Leone, Cabo Verde, Benin as well as representatives of Senegal, Togo and Cote D’ivoire were in attendance at the three-day meeting, along with some Justices of the Supreme Court of Nigeria, President of the Court of Appeal of Nigeria, Chief Judge of the Federal High Court of Nigeria, President of the National Industrial Court of Nigeria, the Attorney General of the Federation (AGF) and Minister of Justice, Prince Lateef Fagbemi (SAN) and other participants.

Justice Ariwoola on the occasion of the statutory meeting, called on West African leaders to use justice and equity in building a prosperous region for the coming generations. He said this has become necessary, in view of the economic, political and leadership challenges facing the region at the moment.

The CJN who presided over the meeting, attended by Chief Justices of other West African countries, challenged West African leaders to reaffirm commitment to the ideals of justice, equity and solidarity and work together to build a just region for the people.

He explained that the ECOWAS Judicial Council, though not widely known like other bodies, has been playing crucial roles in maintaining the rule of law and justice within the region, adding that, the Council which comprised eminent jurists from West African States, has also been serving as the guardian of the rule of law and the protector of human rights within the region.

In addition, he said, the ECOWAS Judicial Council plays a crucial role in the resolution of disputes among member-states, ensuring that conflicts are resolved peacefully and in accordance with the rule of law, noting that with the Western Region characterised by diverse legal systems and traditions, the harmonization of laws and legal practices is essential for the promotion of regional integration and cooperation.

The challenge

While the ECOWAS Judicial Council has made significant strides in promoting justice and rule of law in West Africa, the CJN, said the Council is faced with the challenges of inadequate funding, capacity constraints and the need to bolster cooperation, among others.

He however said, “These challenges also present opportunities for innovation and collaboration, as we work together to overcome shared obstacles and build a brighter future for our region”.

The CJN added that the Council stands as a beacon of hope and progress in the quest for justice and regional integration within West Africa and assured that the Council, under his leadership, will continue to pay attention to addressing situations that threaten the judicial system in West Africa and organisation of the Community Court of Justice.

“By so doing, the Court contributes to the maintenance of peace and stability in the region. The various national judicial systems in member States are also expected to play these critical roles of nation and regional building”, he said, before calling for support, for the Council to be able to play the role of ensuring an integrated West Africa.

Fagbemi’s admonition

Addressing the opening ceremony of the three-day meeting, the Attorney General of the Federation (AGF) and Minister of Justice, Prince Lateef Fagbemi (SAN) told the ECOWAS Court of Justice to pay attention to the peculiarities of member states and refrain from issuing orders and judgments that are practically incapable of enforcement.

The AGF said there is a dire need to promote and deepen alternative dispute resolution measures within West African region and that, the ECOWAS Court, must adopt strategies that would strengthen its jurisdiction, whilst appreciating the jurisdictional boundaries of the Court and limiting unnecessary conflict with domestic laws of member States.

Fagbemi added that the extensive jurisdiction conferred on the ECOWAS Court calls for recruitment of jurists with extensive experience, expertise, high moral character and discipline, stressing the need for the Community Court of Justice to undergo necessary reforms to bring it in tandem with the current exigencies and manage the challenges associated with justice delivery in the region.

“By so doing, the Court contributes to the maintenance of peace and stability in the region. The various national judicial systems in member States are also expected to play these critical roles of nation and regional building”, he said.

He recalled that in January, 2005, the Community adopted the additional protocol to permit persons to bring suits against member states, noting that, the jurisdiction of the ECOWAS Court of Justice was expanded to include cases of violations of human rights in all member states.

“The language of the Additional Protocol also made it clear that the sources of law to be applied by the Court under its original protocol would include not only general principles of international law, but also human rights laws”, he said.

“Judiciary can curb regional insecurity”

The President of the ECOWAS Commission, Omar Touray, in his speech said, the Judiciary remains crucial in the efforts to curb instability and insecurity in West African sub-region.

He said, “In this era, where instability and insecurity are overwhelming our

community, the role of the justice sector is crucial in conflict prevention, through the promotion and defence of the rule of law and human rights”.

Over the years, he noted that the Community Court has been a reference point for ECOWAS institutions, as well as individuals, entities, and governments

in search of advice, arbitration, and adjudication, adding that the regular session of the Statutory Meeting of the ECOWAS Judicial Council is important to address issues affecting the effective operation of the Community Court and to ensure excellence, high standards of conduct

“The enforcement of the judgements of the Community Court has remained a major issue in the effective delivery of the mandate and responsibility of the judicial institution to the community citizens”, Touray said, lamenting the failure of member states to implement the decisions of its regional court.

Calling for deliberate action against member states’ disobedience to the ECOWAS Court verdicts, Touray noted that, “The supplementary protocol relating to the Community Court, provides a role for the national judicial institutions in the enforcement of these judgements.”

Dwelling on the role of the regional court, the President of the ECOWAS Commission said, the ECOWAS court had been a reference point for ECOWAS Institutions and individuals in search of advice, arbitration and adjudication.

“The regular session of the Statutory Meeting of the ECOWAS Judicial Council is therefore important to address issues affecting the effective operation of the Community Court and to ensure excellence, high standards of conduct among the judges with regard to their independence, impartiality, and diligence,” he said.

SERAP, SANs to ECOWAS defence

Meanwhile, there are reactions from various quarters on the AGF’s call to the ECOWAS Court of Justice to refrain from issuing judgments and orders that are practically impossible to enforce in Nigeria.

After the AGF’s speech at the meeting, a non-governmental organization, the Socio-Economic Rights and Accountability Project (SERAP) reacted by asking President Bola Tinubu to instruct Fagbemi to withdraw his political attack on the ECOWAS Court.

SERAP, in a statement by its Deputy Director, Kolawole Oluwadare on Thursday said, Fagbemi’s “statement is clearly inconsistent and incompatible with Nigeria’s international legal obligations assumed under the various ECOWAS treaties and protocols to which the country is a state party.

“It is incorrect to say that the ECOWAS court judgments and orders are unenforceable. This statement is a political attack on the ECOWAS Court which, if not immediately withdrawn, would undermine the integrity, independence, authority and effectiveness of the court and deny Nigerians access to justice and effective remedies.”

SERAP further stated that “The judgments of the ECOWAS Court, which are final and immediately binding and enforceable, are vital for the realisation of ECOWAS aims and objectives”, adding, “Rather than making statements to undermine the integrity, independence and authority of the ECOWAS Court, the Tinubu government should demonstrate the political will to immediately enforce all outstanding judgments by the court.”

“President Tinubu is the chairman of the ECOWAS and Nigeria ought to show the leadership to invest in the ECOWAS judicial organ and uphold the various ECOWAS treaties and protocols and propose mechanisms to implement the decisions of ECOWAS Court within the country’s national legal system rather than disparaging the court” SERAP reacted.

According to the organisation, the ECOWAS Court proceedings are practical and its judgments are enforceable as a matter of law and justice. If a litigant before the court cannot have a judgment enforced, then there is no point in establishing a judicial organ for the ECOWAS in the first place.

It said, “Just as the Tinubu government cannot and should not dictate the types of judgments that Nigerian courts should deliver, the government cannot and should not dictate the nature of judgments to be delivered by the ECOWAS Court.

“The jurisdiction and mandates of the ECOWAS Court are derived from the ECOWAS treaties and protocols to which Nigeria has voluntarily subscribed.

“By ratifying the ECOWAS treaties and protocols, Nigeria has agreed to obey and enforce all the judgments of the court without any exception.

“Article 27 of the Vienna Convention on the Law of Treaties, also ratified by Nigeria, provides that a state party may not invoke the provisions of its internal law as justification for its failure to perform its obligations under a treaty.

“Article 24 (4) of the 2005 Supplementary Protocol on the Court mandates each Member State to designate a national authority vested with the responsibility of enforcing decisions of the regional court.

“The court could also refuse to entertain any application brought by the offending member state until such a state enforces the court’s decision. Under international law, when there is a conflict between a state’s domestic laws and its international obligations, the international obligations will prevail”, SERAP explained.

It called on the government of President Bola Tinubu to immediately withdraw the political attack on the ECOWAS Court and to reaffirm commitment to upholding the voluntary obligations under the various ECOWAS treaties and protocols to which Nigeria is a state party and to, immediately, begin to enforce and implement all outstanding judgments of the ECOWAS Court delivered against Nigeria, including the judgment compelling the Nigerian Government to ensure that all Nigerian children enjoy the right to free education.

“The government must also enforce other judgments such as the judgments awarding N30 million as compensation for the ill-treatment of journalist Agba Jalingo, who faced trumped-up and politically-motivated charges of treason; and finding the Nigerian government responsible for abuses by oil companies and ordering the government to hold the companies and other perpetrators to account”, it added.

In his reaction to Fagbemi’s statement, a human rights lawyer, Femi Falana, (SAN), asked the AGF to speak only for himself, arguing that only Nigeria was culpable of shunning ECOWAS Court orders.

Falana said contrary to Fagbemi’s stance, not all ECOWAS countries were disobeying the court’s orders like Nigeria.

“The hostile disposition of African states to courts is essentially the same. African governments, including Nigeria, are yet to move away from the era of military and apartheid regimes when martial law was the order of the day. The rule of law is substituted for the rule of rulers. Not only are orders of courts disregarded, judges who rule against governments are harassed by security forces. The same attitude has been extended to regional and international courts” he alleged.

Similarly, Chief Mike Ozekhome (SAN) said, the ECOWAS Court had not made orders outside its jurisdiction, adding that the Federal Government must be blamed for shunning the orders of the regional court and that, the effectiveness of the ECOWAS Court has been hindered significantly by challenges in enforcing its judgments and orders.

Ozekhome said, “It is rather the Federal Government of Nigeria that is disobeying ECOWAS Court orders. No other country indulges in such brazen impunity. Other countries diligently obey such orders. No order has been made by ECOWAS Court outside its legal mandate. It is not a court that hungers for jurisdiction. It restricts itself to matters presented and argued before it. Which orders have the Federal Government been known to have obeyed?”

Ariwoola moves

Justice Ariwoola has however disclosed that the ECOWAS Judicial Council has set up committees to look into the judgments by the regional court of justice.

He made the disclosure after leading members of the Council to meet with President Tinubu at the State House. He said two committees have been established to examine rules and execution of the regional bloc’s court judgements.

“We have set up two committees; one to look into the rules and the other to look into the position or the status of the enforcement of judgments of the community court and as I told Mr President, by the time the Council concludes its meeting, the recommendations will show that we have worked so hard to support the Commission.”

The CJN said, as the chairman of the ECOWAS Judicial Council, he led members to visit the president to brief him on what transpired during the meeting.

During the three-day meeting, the ECOWAS Judicial Council elected Nigeria as President of its bureau with the Republic of Cabo Verde and Republic of Cote D’Ivoire as Vice President and Rapporteur of the Bureau.

The Council also constituted a five -member committee, comprising Benin, The Gambia, Guinea Bissau and Sierra Leone to review its rules of procedure and all matters related to the legal framework of the Council and come out with recommendations for the effective functioning of the Council.

Recruitment of Judges from Burkina Faso, Guinea Bissau and Mali could not materialise on account of the sanctions imposed on the three member states by the authority.

The Council also observed that the non-compliance with the judgement of the ECOWAS Court may partly be attributed to lack of practical enabling legal frameworks for enforcement.

It also noted that non-existence of an appellate chamber, accounts for the non-enforcement of the court’s decisions by some member states that may not be satisfied with the court’s decisions but have no means of challenging the decision on appeal.

It further observed that, “The non-exhaustion of local remedies before accessing the ECOWAS court is a potential recipe for conflict between the court and the member states, leading to non-implementation of its decisions”. It stressed the need of reviewing the status quo to come up with acceptable admissibility criteria.

The Council, while considering the effect of non-compliance with the judgements of the Court, the complexities involved in navigating the challenges and the potential conflict posed by the current admissibility criteria, set up a committee to review the enabling laws for the enforcement of the Court’s judgement and further access the possibility of creating appeal chamber of the Court.

Members of the Committee are, Cabo Verde, Liberia, Senegal, Sierra Leone and Togo and that the two sub-committees are to report their findings to the Judicial Council which will recommend them to the authority of Head of State and Government.