By Omonu YG Nelson
It has been said that the kernel of all civilized societies lies in the fact that everybody is considered equal before the law, and in such societies, it is expected that state institutions and sometimes international or regional organizations should regulate the affairs of States. Anything less is antithesis, anachronistic and barbaric.
Regrettably, the African continent in particularly the West African Subregion have continued to wallow in the dark shadows among the comity of continents. Opinion leaders have adduced several reasons for the African dilemma, prominent amongst which is weak institutions. It is a known fact that in West Africa, as it is in other regions of the continent, it is not the absence of institutions and good laws that is the challenge but the unwillingness of the political actors and leaders to be guided by the laws they instituted.
Developmentally, there’s a sharp divisions between nations and continents where State institutions are stronger than individuals, no matter how powerful. While investments and social order strives in climes where rule of law reigns, the West African subregion has remain in the limbo of underdevelopment which has been manifested in the form of brazen corruption, poverty and insecurity.
This sad state of affairs was re-echoed at the ongoing 2023 first Ordinary Session of the Parliament of Economic Community of West African States (ECOWAS), in Abuja Nigeria, where the President of the ECOWAS Court of Justice, Justice.
Edward Amoako Asante lamented the inability of the one hundred and six (106) of its judgment to be enforced my member states, whiles another eleven (11) are outstanding against ECOWAS institutions.
According to him, Parliament is the custodians of the peoples’ mandate within the West African democratic architecture, hence parliament will need to redouble efforts to ensure the survival of our democracy. The fate of the court underscores the disdain of the ruling class in the subregion for obeying court orders.
The same is not so of ECOWAS counterparts, like the Luxemburg based European Union Court of Human Rights, an international court set up in 1959, which has continued to serve as beacon of hope for the continental Europe. The European Court rules on individual or State applications alleging violations of the civil and political rights set out in the European Convention on Human Rights. Every judgement, even by a drunken Judge of EU Court is obeyed to the latter. Why is West Africa different?
By way of hindsight, the Mission Statement of the ECOWAS Community Court, is to discharge and promote its judicial function of interpreting and applying Community texts as well as to ensure the protection of human rights in an efficient, timely and cost effective manner with the support of well-trained and motivated staff. But with the continuous impunity by the 15 member state, who have flagrantly refused to obey the judgement of the court it set up, are they indications that this sub continental arbiter is going to meet up to its aims and objectives anytime soon?
Suffice to say that the continuous disdain for the judgement of the Court, threatens the very existence and credibility of ECOWAS as an institution because judging any State as Developed or Underdeveloped, starts with the degree of respect or strength of its institutions.
The Community Court of Justice was created pursuant to the provisions of Articles 6 and 15 of the 1993 ECOWAS Revised Treaty as the principal legal organ of the Community. Paragraph 2 of Article 15 indicated that the status, composition, powers, procedure and other issues concerning the Court shall be set out in a Protocol relating thereto.
Subsequently, the Protocol on the Court of Justice (A/P1/7/91) was enacted in 1991 to regulate the functioning of the Court as the judicial organ of the Economic Community of West African States (ECOWAS) and with the responsibility of resolving disputes related to the interpretation of the Community’s Treaty, Protocols and Conventions. Article 2 thereof made the Court the principal judicial organ of the Community. The 1991 Protocol was amended by Supplementary Protocols (A.SP.1/01/05) of 2005 and (A/SP.1/06/06) of 2006. The Protocols, supplemented by the Rules of Court provide the ground rules for the functioning of the Court. Painfully, the ECOWAS that’s supposed to show example by obeying the judgements of its own court, is in default by the 11 judgements standing against it.
On the flip side, since ECOWAS was established by the Treaty of Lagos in May 1975, a lot of milestones have been achieved, especially in the areas of promotion of Democracy. Analysts have given ECOWAS a pass mark, against the backdrop of the roles it played in the restoration of peace and democracy in Liberia and Sierra Leone in the 90’s; recently The Gambia, and continuous engagements with the military authorities in Guinea, Burkina Faso and Mali. However, the contempt for the judgements of the Community Court, seems to be overriding the gains already recorded.
According to Justice Asante, the Community Court has contributed immensely to the strengthening of some underpinnings of democracy such as respect for human rights and the protection of the freedom of expression by holding Member States accountable for their International Treaty obligations.
However, recent democratic reversals in the three Member States of Burkina Faso, Guinea and Mali eloquently demonstrate the fragility of our cherished democracies across the region and the need for collective vigilance and coherent action in its protection.
He further noted that, the military coups in these three Member States and the tension that accompanies elections in Member States point to the need for the identification of the underlying issues that confront our democracy and the implementation of measures for securing it, which are mainly governance related as well as other issues in order to ensure that our democratic practice responds to the yearnings of our people.
Justice Edward Asante therefore noted that, it’s reassuring that female parliamentarians under the aegis of the ECOWAS Female Parliamentarians Association (ECOFEPA) hosted a town hall meeting last week on how to Rejuvenate Democracy by giving voice to Women and Youth.
The President of the ECOWAS Commission, Dr Omar Alieu Touray, has also said the enforcement of ECOWAS Court of Justice decisions remains a challenge. While presenting to Parliament the status of implementation of the Community Work Programmes at the ongoing 2023 First Ordinary Session of ECOWAS Parliament, Touray explained that:
“Even though the court is engaged with member states to resolve the challenges militating against the enforcement of its decisions, we are hopeful that parliament can help in facilitating the resolution of the challenges. Considering the critical role of the court as a Community institution, particularly as an important force for the promotion of human rights, regional stability, peace and security, enforcement of its decisions is a critical component in determining it efficiency.”
In terms of judicial performance, the ECOWAS Commission president explained that as of 24th March 2023, a total of 641 cases had been filed at the court since 2003, of which 347 judgements and 135 rulings have been delivered. He added that the court has also issued 52 orders while 174 cases are pending.
The point redemption is certainly ECOWAS itself. It must show courage and grace to obey the judgements of its own court. Next is the leaders of the Member States. They must borrow a leaf from their European Union (EU) counterparts.
Africa, and indeed, the West African sub-region has suffered and continues to suffer disdain from other blocs and regions of the world. The time for rethink is now.