Seek redress at ECOWAS Court of Justice - Justice Asante

BY: Emmanuel Ebo Hawkson
Justice Edward Amoako Asante
Justice Edward Amoako Asante

The ECOWAS Community Court of Justice (CCJ) sat in Ghana from March 21 to April 1, 2022 to hear cases pending before the court as part of its external court session. The CCJ started the external court session in 2007, and it allows the court to move from its base in Abuja, Nigeria, to any territory of the 15 Member States to adjudicate on cases. The Daily Graphic’s Senior Court Reporter, Emmanuel Ebo Hawkson (EEH), had the privilege of interviewing the President of the CCJ, Justice Edward Amoako Asante (JEAA).

We bring you excerpts of the interview.

EEH: My Lord, the Daily Graphic is grateful to you for granting us this opportunity to have a discussion with you. To start with, what is the rationale behind this external court session?

JEAA: The court is for the whole ECOWAS Community but based in Abuja, Nigeria. The protocols permit that where the circumstances in particular cases demand, the court can move to member states and hear cases. The rationale is that there are so many citizens of ECOWAS member countries who may not have the means of coming all the way to Abuja to access the court. Also, the visibility of the court must be felt by people. Many people, including lawyers, do not know about the court, its functions, mandate and procedures. The court is owned by all of us and therefore, everybody must benefit from it.

EEH: What are the functions of the court, vis-à-vis the relationship with national courts in member states?

JEAA: Initially, when the court was set up in 2001, its core function was to interpret the ECOWAS treaty, protocols and other legal documents, resolve dispute between member states, and between a member state and any institution of ECOWAS in the application of the treaty and protocols as part of the integration process. The court was then only accessible to Member States and ECOWAS institutions. However, along the line, specifically, in 2005, the mandate of the court was expanded to include human rights jurisdiction. Access was also given to individuals to come to the court to vindicate the human rights violated by their countries. As at now, 95 percent of the cases before the court are in respect to alleged human right violations against community citizens by member states.

EEH: What sort of human rights violations can come before the court? I am asking this because member states have provisions on human rights as part of their laws.

JEAA: You are right, all the member states have provisions on human rights as part of their constitutions or statutes. But you would also know that state actors sometimes infringe on the human rights of citizens. Also, countries have sign international treaties on human rights such as UN Conventions, International Convention on Civil and Political Rights and the African Charter on People and Human Rights. These are the laws that the ECOWAS Court of Justice applies. In the application of local human rights, this court has the mandate to ensure that ECOWAS Member States do not deviate from the standards of the international human rights which they have signed on to. The court is therefore like a watchdog which makes sure that member States uphold the international human rights treaties to which they are parties.

EEH: This raises the issue of the relationship between the ECOWAS Court of Justice and national court in member states, I read somewhere that the ECOWAS Court does not have appellate jurisdiction over the national courts. How does the relationship, therefore works, especially when the ECOWAS Court and national courts have jurisdiction over human rights issues?

JEAA: This court has clearly stated in various decisions that it is not an appellate court over decisions of national courts. What this court does is that it entertains actions which are brought afresh by a community citizen. An aggrieved person therefore has the option to either come to the ECOWAS Court at the beginning of the violation of the rights, or go to the national courts. So a person has the election to go to either of the two courts, but if you go to the national courts, you have to go through the full process of the trial there. The decision in the national courts are final and this court cannot superintendent over those decisions. However, the ECOWAS Court, in few instances, can entertain matters dealt with by national courts, and this is when it relates to right to fair trial. Even with that one, the court would limit itself to the procedure pertaining to the fair trial, and not the merits of the case.

EEH: Also, I read that the ECOWAS Court does not have criminal jurisdiction. Can you please explain this?

JEAA: Courts are creatures of law. All the protocols that set up the ECOWAS Court of Justice have not given the court jurisdiction over criminal cases. However, in criminal cases in member states, if the accused person’s right to a fair hearing is breached, the person may come to the ECOWAS Court and the court would only look at the right violated and make a determination on it, and not the criminal case.

EEH: When the court was set up, its purpose was to use the law to help in the integration of ECOWAS member states. The court has been around since 2001, how has the court discharged this mandate of helping in the integration of member states?

JEAA: ECOWAS integration is a very wide process that encompasses free movement, and standard tariffs among others. The Court has the mandate to be the arbiter or interpret issues arising out of dispute in the application of the ECOWAS treaties and protocols aimed at achieving the integration. However, disputes have not been brought, but if any such matters arise it is the court that would make a determination. For instance, when Nigeria, some time ago, decided to close its border, no country filed a case, but this is a matter that pertained to the free movement of goods and persons. Maybe the countries decided to use diplomatic channels to settle it.

EEH: Jurisdiction of a court and capacity to invoke that jurisdiction are fundamental in every legal action. You have spoken about the jurisdiction of the court, but who has the capacity to invoke that jurisdiction?

JEAA: Initially, the court was set up as an interstate court, and therefore, from 2001 to 2005, only member states could file cases before the court. But in 2005, the court’s jurisdiction was expanded to include human rights, and this gave citizens of ECOWAS countries the capacity to appear before the court. Civil Society Organisations, as well as corporate bodies can file cases at the court. These NGOs can file public interest actions on behalf of certain marginalised groups Even staff of ECOWAS who feel their rights in terms of their employment have been violated can also initiate actions at the court. The court, therefore, is also an administrative court.

Justice Edward Amoako Asante — President, ECOWAS Community Court of Justice, chairing one of the sessions

EEH: What are the processes for an individual seeking to file a case before the court?

JEAA: Your documents must be prepared either by you or your lawyer and filed. Previously, the filing had to be done in person at Abuja, but now it can be transmitted electronically to the Registrar of the Court. You have to give the full details of the respondent, which is the Attorney–General of the member state, so that it can be served on him or her through the same electronic means. COVID-19 has even fortified this decision and now we are very technologically inclined. The respondent has 30 days to respond. Also, because the Court hears cases in the three official languages of ECOWAS- English, French and Portuguese, the cases also must be translated into the other languages if it is filed in a particular language, depending on the panel.

EEH: My Lord, what about the powers of the court. What powers have the ECOWAS Treaty and protocols entrusted the court with?

JEAA: Basically, those procedures are spelt out in the protocols. Trials are delicate so the court would hardly interfere in their conduct because the lawyers are supposed to know the law. A lawyer may, therefore, like to come for expedited action because maybe the subject matter of the case may get damaged if the case is not determined in an expeditious manner. The lawyer must apply for the court and the judge may grant it and order a speedy trial. However, one hitch there is the translations into the three official languages of EOCWAS. Voluminous documents are filed and they must all be translated depending on the panel that will hear the case. Also, the court has powers to grant injunctions for the status quo to remain until the determination of the case. Again, when the court feels that the evidence of certain persons would help in the determination of a case, it has the powers to do so. The court can, therefore, invite experts in certain areas to explain issues would help the court in its determination.

EEH: How difficult or challenging is it for the court to enforce its decisions?

JEAA: The protocols are clear that all judgements of the ECOWAS Court of Justice are final and enforceable. The protocols state that each member state must have a focal person for receiving and enforcing the judgements of the court. Out of the 15 member states, only six countries have appointed a focal person. The execution process is served by the Chief Registrar of the Court on the competent institution in the member country that is supposed to enforced the decision. That is the ideal situation. The member countries have ratified and domesticated some of the international human rights into their laws and that is why certain foreign judgements could be enforced in those countries. Unfortunately, the ECOWAS protocols on Human Rights issues have not been ratified and domesticated in any of the member states. If they domesticate them, then the countries could infuse them into their civil procedure law to aid enforcement . This has not been done and, therefore, the enforcement of the judgement depends on the goodwill and willingness of the countries, which is so sad. In a certain case, a community citizen had his property destroyed and he sued before the court. He had judgement and wanted to execute by applying to the national court. The national court rejected it and said that once the ECOWAS protocols on these issues have not been ratified, it could not enforce the judgement.

EEH: My Lord, a follow up to that question. What can be done do remedy the situation? Should the ECOWAS Parliament help, or must the member states come together and resolve it, because if the decisions of the court depends on the goodwill to be enforced, then it is problematic?

JEAA: It is truly a sad story. I asked myself, what the use of a court is if its decisions cannot be enforced. The enforcement is based on the goodwill of member states and the goodwill is not coming. The rate of the enforcement of the court’s judgment is about 30 per cent. civil society, lawyers and community citizens must fight to change this, just as they did for the jurisdiction of the court to be expanded to include human rights cases. If they leave it in the hands of the member states alone, it will not be done because they are the ones the judgments are against.

EEH: How many cases will the court hear during the external session in Ghana?

JEAA: There are 60 cases, one pertaining to Ghana, and 25 due for judgments. Benin has five cases, Burkina Faso has one but we are not going to hear because it is on suspension, Gambia –one case, Cote d’Ivoire – two cases, Ghana –one case, Liberia- two cases, Niger –six cases , Nigeria -19 cases, Senegal –eight cases, Togo-7 cases and Sierra Leone -4 cases.