Human rights lawyer Femi Falana SAN has called on member states of the Economic Community of West African States (ECOWAS) to embrace the rule of law by “immediately taking measures to implement and enforce the judgments by the ECOWAS Court of Justice and by national courts.”

Falana stated this today in a paper titled “The Legal Implications of Regionalism, Sovereignty and Supra Nationalism”, and presented at the International Conference on ECOWAS Integration Model held in Praja, Cabo Verde.

According to Falana, “There is no doubt that the ECOWAS Court has created a new human rights legal regime in West Africa. But ECOWAS governments are still failing to obey court judgments and to comply with their human rights obligations.”

Falana stated, “the establishment of the rule of law in the sub-region requires the development of a relatively autonomous institutional legal and judicial structure at the national level to counter-balance the political power of the authorities across the sub-region.”

Falana also stated, “the national judicial systems of member states should be strengthened to render justice to all aggrieved individuals and corporate bodies. It has to be realized that the rule of law in a normative sense is impossible without judges who can act independently, lawyers who have the freedom to represent their clients vigorously, and legal academics who can conduct research and educate students without political interference.”

The paper, read in part: “Perhaps no other issue raises greater passion in political and legal discussions in the ECOWAS region than the question of respect for basic human rights. The protection of fundamental human rights within a society is ordinarily thought to be a primary concern of the legal and judicial system.”

“In the ECOWAS countries, working toward establishing the rule of law should include a discussion about how the legal and judicial system should act – or should be made to act – to recognize and protect internationally recognized human rights, including economic, social and cultural rights.”

“Even though the ECOWAS court may be said to have performed creditably well in a rather hostile environment, there is a lot of room for improvement. ECOWAS governments must wake up to their legal responsibilities.”

“The Community court has developed consistent case law in the area of human rights such as protection of right to liberty, free movement of persons and goods, right to education, right to dignity of the human person, right to a safe and healthy environment, right to security, right to participate in elections, ban on slavery, domestic violence and child abuse.”

“It is hoped that in the years ahead, the Community Court of Justice will continue to promote regional integration. To achieve the basic objective of promoting economic prosperity in the region the political authorities should ensure that the national economy is controlled by the people. As a matter of urgency, members states should domesticate the Revised Treaty and Protocols of the Community Court and harmonize community laws.”

The Economic Community of West African States (ECOWAS) is a regional political and economic union of fifteen countries located in West Africa. Since it was established in 1975 as one of the eight regional economic communities of the African, ECOWAS has created a single, large trading bloc through economic cooperation.

“Article 1(h) of the ECOWAS Protocol on Democracy and Good Governance provides that, ‘The rights set out in the Africa Chapter on Human and Peoples’ Rights and other international instruments shall be guaranteed in each of the ECOWAS Member State, each individual or organization shall be free to have recourse to the common or civil law courts, a court of special jurisdiction, or any other national institution, to ensure the protection of his/her rights.’”

“As the independence of the judiciary was completely compromised in some member states, victims of human rights abuses were frustrated from seeking redress in local courts. In the circumstance, such victims were compelled to turn to the community court for the purpose of securing the enforcement of their violated human rights.”

“In order to achieve the community integration objectives, the President of the Community Court, Justice Asante has said that ‘it is of utmost importance that the relationship between the ECOWAS Court of Justice and the national courts of Member States is properly defined and that they work together in harmony.’”

“It is also necessary for the Member States to domesticate the ECOWAS Revised Treaty and the Protocols on the Court and to voluntarily comply with or implement the judgments of the Court. The time has therefore come for the Member States to pay attention to the ECOWAS legal regime, as Community Acts are not directly applicable in Member States.’”

“However, some member states have challenged the supranational character of ECOWAS institutions by insisting on the superiority of local laws or the finality of the judgments of municipal courts. For instance, the Republic of Cape Verde has said that it is not bound by the decisions of the Court.”

“Thus, in the judgment delivered on March 15, 2021, in the case of Alex Saab v Republic of Cape Verde, the Court ordered the Defendant to release Plaintiff, a Venezuelan diplomat, from prison custody, and pay him $200,000 compensation for illegal detention.”

“Having established that the arrest was carried out without the existence of an INTERPOL Red Notice and an arrest warrant, the Court directed the Respondent not to extradite the Plaintiff to the United States.”

“But the Cape Verdean Supreme Court subsequently approved Mr. Saab’s extradition in defiance of the decision of the ECOWAS Court. In the ruling, the Supreme Court held that the Respondent is not bound by the decisions of the CCJ on the ground that it was not a signatory to the Protocol establishing the regional court.”

“The ruling was upheld by the Constitutional Court of the country. Consequently, the Plaintiff was extradited to the United States.”

“We submit that the contention of the Respondent flies in the face of Article 12(3) of its national constitution which provides that ‘The legal acts emanating from competent bodies of supranational organizations of which Cape Verde is a part, are directly in force within the domestic law, provided that this is established in the respective constitutive conventions.’”

“The Respondent is part of the constitutive ECOWAS treaty of 1975 as amended in 1993, which provides for the Court of Justice of the Community. Protocol A/P1/7/91 of 6 July 1991 and Protocol A/SP.1/01.05 of 19 January 2005 are international legal acts emanating from the Authority of Heads of State and Government, one of the bodies of ECOWAS whose decisions are binding on all the member states.”

“In Valentine Ayika v. Republic of Liberia the court held that the Protocol of the Court and the Supplementary Protocol are binding on the Applicant under Article 25(2) of the Vienna Convention on the Law of Treaties since it has not taken any step to renounce them.”

“In fact, Cape Verde ran into contradictions as it complied with Interpol Red Notice even though it is not a signatory to the convention of Interpol and the rules for data processing of that international organization. In other words, the Interpol Red Notice was applied to justify the arrest and detention of the Plaintiff without any domestic act of approval, ratification and publication by the government of Cape Verde.”

“It is further submitted that the domestication of the treaties of the Economic Community of West African States is the internal affair of each member state.”

“The hostile attitude of African states to courts is essentially the same. Not only are court orders disregarded, judges who rule against governments are harassed by security forces.”

“The same attitude has been extended to regional and international courts. African governments are yet to move away from the era of military and apartheid regimes when martial law was the order of the day.”

“It is part of the legacy of colonial rule when the King could not be sued in his own court as it was presumed that His Majesty could do no wrong! Recently, the members of the African Union threatened to pull out of the International Criminal Court for having the temerity to indict incumbent Heads of State for genocide and crimes against humanity.”

“But due to the progressive stand of Nigeria, Senegal and few other States, the move did not succeed. Even though the African Union decided to cloth the African Court on Human and Peoples Rights with criminal jurisdiction, the Malabo Declaration has not been ratified by a single member state while only 7 out of 54 member states of the African Union have made the Declaration accepting the competence of the African Court on Human and Peoples Rights!”

“It is therefore not surprising that some Heads of State in West Africa are not prepared to comply with the decisions of the court. The member states of ECOWAS cannot therefore put victims of human rights violations in a vicious and empty judicial circle by introducing the requirement of domestic remedies.”

“Pushing victims to exhaust such weak and prolonged domestic legal systems would be futile. It may also force victims of human rights violations to resort to self-help. That will not be good for ECOWAS countries. If ECOWAS member states are genuinely committed to human rights, they should immediately reject any proposal to introduce the requirement of exhaustion of domestic remedies in the ECOWAS Court.”

“It is necessary to remind the sponsors of the amendment for exhaustion of domestic remedies that a similar amendment proposed by The Gambia in 2009 failed woefully. The new proposal will certainly fail as stakeholders are determined to strengthen the capacity of the Court to continue to uphold the human rights of community citizens under the African Charter on Human and Peoples Rights and other relevant international instruments.

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