Factors inhibiting Access to the Court
Notwithstanding the clear provision of Article 10 (d) (ii) of the Protocol on the Court as amended, on access rules to the court, there are other factors that inhibit access to the ECOWAS Court of Justice. The first constraint is the geographical location of the seat of the Court at Abuja Nigeria which makes it difficult for Community citizens to have unfettered access to the Court because of the huge distance to Abuja from most parts of the Community and transportation difficulties. Secondly, there is no provision in the Protocol or Rules of the Court for Legal Aid for indigent litigants. It is believed that the establishment of sub-Registries of the Court in Member States of the Community will facilitate greater access to the Court.
The creation of a Legal Aid Fund to provide legal aid for needy litigants has also been proposed. (See generally Report of the 10th year Anniversary of the ECCJ, held at Accra-Ghana, 21-25 Feb. 2011).
The principal difficulty in using the ECCJ lies not with the court itself, but with the enforcement of its judgements . Unless member states who fail to comply voluntarily with the judgements are compelled to do so by triggering the sanctioning power of the ECOWAS Authority under Article 77 of the Revised Treaty, and under the 2012 Supplementary Act on Sanctions Against Member States that fail to honour their obligations to ECOWAS , the confidence in the court will be eroded.
This leads us to the following challenges facing the court as recently identified and considered at the Court’s July, 2019 Judicial Retreat at Goshen City, near Abuja: –
- the regrettable reduction in the composition of the Judges from seven to five and the unfortunate change in the tenure of the Judges from five years renewable as provided in the 1991 initial protocol of the Court to four years non-renewable, a development that is neither in the interest of the court nor the community citizens. No other regional court has this type of composition and tenure of Judges, and the court should continue to engage all stakeholders/relevant authorities to redress this anomaly in recognition of the peculiarity of the court as the principal Judicial Institution of the community .
- the need to establish an appellate chamber of the court in line with the 2006 agreement by the ECOWAS Council of Ministers in order to avail litigants of their fundamental right of appeal. A right of appeal is indeed a fundamental right and it must be noted that the 2018 new organogram of the court reflects the intention for the creation of an appellate division of the court.
- the need to address the controversial issue of amicus curiae which has led to some conflicting decisions because of the divergence in legal traditions in the ECOWAS region so as to bring the necessary cohesion in the court.
- the need to articulate clear guidelines on reparation which has occasioned wide disparities in the quantum of awards in similar situations depending on particular panels of the court.
PROSPECTS
The growing body of relevant community legal and policy instruments between 2008 and 2020 on the phases of regional economic integration in West Africa, requiring URGENTLY, Judges and staff of this honourable court to bridge the knowledge gap and develop competencies through seminar/conference series and technical workshops on the contents and application of the relevant instruments for effective settlement of disputes and efficient administration of Justice.
For example, on the 19th December, 2008, the Authority of the Heads of State and Government adopted the following three supplementary Acts on: – Competition Rules ; Investment Rules ; and the establishment of a competition Authority .
With the Common External Tariff (CET) which took off in January 2015, member states will be paying a uniform tariff at all borders in the region. With this development, an improvement of the implementation of the ECOWAS Trade Liberalization Scheme (ETLS) can now also be safely expected. The CET is an important milestone on the road to the creation of a customs union for West Africa.
Also, the ECOWAS Common Investment Code and Policy were adopted on 18 December, 2018 and signed by member states in June 2019.
Finally, on 29th June, 2019, the Authority of ECOWAS Heads of States and Governments adopted the ECO single currency to be issued in January, 2020 but shifted to 2022 due to operational reasons. This aims at boosting cross border trade and commerce among member states and community citizens.
The above raises another fundamental challenge/question: – is ECOWAS Court of Justice a Trade and Investment Tribunal? The reason being that, the community court is little known outside the human rights community. This is odd, given ECOWAS’s broad economic integration objectives and programmes since 1975 and the court’s powers since 2001. In fact, the ECCJ has the potential of serving as a forum/tribunal for the settlement of at least some disputes between foreign investors and host member states . In addition to disputes arising under the community law, the ECCJ has jurisdiction on any matter provided for in an agreement where the parties provide that the court shall settle disputes arising from the agreement . The ECCJ’s power to act as the Community Arbitration Tribunal , is yet to be functionally activated or utilized. Nevertheless, by means of an appropriately worded forum selection clause, the ECCJ can also serve as a forum for the settlement of investor contractual disputes with host states.
Moreover, the ECCJ is also the default mechanism for the settlement of investor-state disputes under the ECOWAS Supplementary Act on investments adopted in 2008 pursuant to its investment competence.
CONCLUSION
In conclusion, it is evident from the above that, economic integration cannot be effectively achieved without some measure of supra-nationalism. The experience of the ECOWAS region, though not perfect, confirms that unless Member States give up some parts of their national sovereignty and empower regional integration institutions to make binding decisions on their behalf, and implement them at national level, little progress can be made.
For effective delivery of Justice and realization of Community economic integration objectives, it is very imperative for Member States to demonstrate greater political will in the enforcement of the court’s judgements as required by the Community law. Fast-tracking the creation of the appellate chamber of the court will boost community citizen’s confidence in the realization of their right to appeal against any judgement by the court they are not satisfied about.
Your excellencies, this honourable court may borrow a leaf from the 2013 Study Report on the Right to Reparation in the African Human Rights system, containing some basic principles and guidelines for the ECOWAS Court of Justice to address the earlier mentioned wide disparities in the quantum of awards in similar situations.
To bring the necessary cohesion in the ECCJ on Amicus curiae, I wish to recommend resort to the experience of the inter-American Court of Human Rights on Liberal admission of such briefs in its proceedings.