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The Puzzling Paradox Presented within the African Supranational Judicial Institutions: The ECOWAS Court of Justice

Document Cited authorities 2 Cited in Related
Vincent
Date01 November 2020
Published date01 November 2020
DOI10.3366/ajicl.2020.0333
Pages86-109
Author
INTRODUCTION

On 2 February 2016, the High Court of Accra, Ghana issued a ruling on an application to enforce a judgment of the Court of Justice for the Economic Community of West African States (ECOWAS Court).1 The High Court held that the decisions of the ECOWAS Court cannot be enforced by the courts in Ghana because the Republic of Ghana has not put in place domestic legislation incorporating the Protocols of the ECOWAS Court. In other words, the binding judgments2 of a regional court, which are final and are to be immediately enforceable by member states,3 cannot be automatically enforced.

This decision reflects an existential puzzling paradox in the enforcement of the ECOWAS Court's judgments. On the one hand, its judgments are declared to be of immediate binding effect, with member states having an obligation to treat them as such. In practice, the enforcement of its judgments can sometimes be everything but immediate and binding. By distinguishing between legal and political considerations, this article critically assesses the issues surrounding the existence of this paradox in relation to ECOWAS Court judgments. Further, the potential role of certain judicial bodies in addressing this gap in enforcement is explored. It is submitted that in order to address this puzzling paradox, national courts, the ECOWAS Court itself and other regional judicial bodies in their distinct capacities have a promising role to play.

 ECOWAS COURT OF JUSTICE

At present, the African Union recognises eight regional economic communities that aim specifically at fully-fledged economic integration among their members states.4 ECOWAS, a fifteen-member regional group of countries,5 is one of those recognised regional economic communities. It was created with the aim of ‘promoting cooperation and development in all fields of economic activity … for the purpose of raising the standard of living of its peoples, of increasing and maintaining economic stability and of fostering closer relations among its members and of contributing to the progress and development of the African continent’.6 Both the ECOWAS treaty and the revised treaty create a community legal system, which imposes a number of obligations on member states towards the goal of regional integration. For instance, on the one hand, the aims and objectives of the ECOWAS treaty is to create a community legal system, whilst Article 5(3) of the ECOWAS Revised Treaty, obliges Member States to honour their obligations under the treaty and to abide by the decisions and regulations of the Community.7

In the ECOWAS setting, this presumption is evident in that the final goal for ECOWAS is beyond the mere creation of inter-state relations; rather, the final goal is the accelerated and sustained economic development of member states, culminating in the economic union of West Africa.8

In light of the substantive legal obligations contained in the ECOWAS legal system, a judicial organ was established in the expectation that it would play a meaningful role in the process of West African regional integration. Indeed, the practical significance of a Court for ECOWAS was emphasised by a Deputy Executive Secretary9 of the Community when he pointed out that such an institution was needed for reasons including the increasing need for a proper body to settle the differences and conflicts that may arise from the implementation of the Community's Trade Liberalisation Scheme,10 and the resolving of problems and conflicts which may arise from the Agricultural Cooperation Programme,11 among other issues. Hence, the ECOWAS Court was explicitly established with a mandate to ensure the observance of law and justice in the interpretation and application of ECOWAS laws.12

A brief word on the nature of the ECOWAS Court itself and its relationship with member states will be helpful. Article 15(4) of ECOWAS Revised Treaty reflects the binding nature of the ECOWAS Court's decisions. It provides that:

Judgements of the Court of Justice shall be binding on the Member States, the Institutions of the Community and on individuals and corporate bodies.13

In addition, according to Article 19(2) of the ECOWAS Court's Protocol

Decisions of the Court shall be read in open court and shall state the reasons on which they are based … such decisions shall be final and immediately enforceable.14

 As for enforcement, Article 22(3) of the ECOWAS Court's Protocol provides that

Member States and Institutions of the Community shall take immediately all necessary measures to ensure execution of the decision of the Court.

 More recently, the current president of the ECOWAS Court, Justice Edward Amoako Asante, described the court as a ‘supranational body’ whose decisions must be respected and implemented in the domestic realm of member states.15 To give such competence to a regional court is understandable in light of the ambitions of the community as described earlier. However, as would now be demonstrated, the enforcement of ECOWAS Court judgments can sometimes be everything but immediately enforceable. The goal of this article is to inquire why this is the case and to explore possible avenues of addressing this phenomenon THE PUZZLING PARADOX IN PLAY

This section presents an example case which demonstrates the issue at hand. The Mr Chude Mba v. The Republic of Ghana case16 demonstrates the interplay between the legal and political considerations which will be assessed later in this article.

The applicant, a Nigerian (and British) citizen, had made some investments in Ghana in 2004 and was engaged in constructing two towers of luxury apartments on a piece of land he had acquired. He had also obtained all the necessary clearance from the appropriate authorities, including the Accra Metropolitan Authority. In 2009, he received a stop-work order from the aforementioned authority and was invited before various investigatory bodies in Ghana. Consequently, the construction work was halted, and the project was sold at a great loss to him.

On 6 November 2013, the ECOWAS Court found that the Republic of Ghana had violated the fundamental rights of the applicant and awarded the sum of 800,000 US dollars as damages for the violation of the Applicant's fundamental rights and costs of the action assessed at 500,000 Nigerian naira.17 The Ghanaian government refused to implement this ruling.18 Even at the initial stage, the Ghanaian government neglected to file its defence to the applicant's claims. After the judgment was issued, the Republic of Ghana filed an application before the ECOWAS Court seeking to set aside the judgment of the Court. However, the Court dismissed this application on the grounds that the application was without merit as the Republic of Ghana did not establish any grounds to warrant the Court to set aside the judgment. Thereafter, the Registrar of the Court, in line with the provisions of Article 24(2) of the ECOWAS Court's Protocol,19 issued and served on the Republic of Ghana a Writ of Execution of the ECOWAS Court's judgment.

Further, the applicant, through his lawyers, wrote to the Republic of Ghana demanding payment of the compensation established in the judgment and compliance with the orders of the Court, but the Republic of Ghana failed to obey the orders of the Court.20 Following the failure of the Republic of Ghana to voluntarily comply with the judgment of the Court, the Applicant filed an application before the High Court of Accra,21 seeking an order of that High Court to enforce the decision and orders of the ECOWAS Court against the Republic of Ghana.

The Republic of Ghana opposed the application and the High Court of Accra, per Justice G. S. SuurBaareh (J. A.) dismissed the application in his ruling delivered on 2 February 2016.22 The High Court rejected the application for two reasons. Firstly, neither the Protocol of the ECOWAS Court nor the Treaty establishing ECOWAS has been given the force of law in Ghana by the Parliament of Ghana exercising its powers under Article 75(2) of the Constitution of the Republic of Ghana, 1992.23 Secondly, the statutory regime for enforcing foreign judgments in Ghana operates on the bases of designation and reciprocity and the ECOWAS Court is not stated as one of the Courts to which the legislation applies.24 Hence, if Ghana had ratified the Protocols of the ECOWAS Court and had given it the force of law, the Ghanaian courts would have been bound by Article 24 of the Protocol which provides, among other things, that the judgments of the ECOWAS Court that have financial implications for nationals of member states or member states are binding.25

This case exemplifies how the phenomenon at issue is made manifest in the ECOWAS legal system. The absence of a domestic enforcement mechanism in Ghana was a crucial reason for the non-enforcement of the ECOWAS Court's judgments. Indeed, the domestic courts in Ghana are bound by the Ghanaian Constitution over the provisions of ECOWAS instruments.26 Hence, the conclusions of the Ghanaian High Court in this case are tantamount to asserting that no matter the immediate and firm language used in the ECOWAS instruments, the absence of a domestic measure coupled with the absence of a political will to uphold ECOWAS Court judgments will continue to leave the ECOWAS Court and its judgments at the victim end of this paradox. To these legal and political considerations, I now turn.

 EXPLAINING THE PUZZLING PARADOX

Before a detailed assessment of the political and legal considerations is embarked upon, some clarifications are called for.

Firstly, by focusing on ECOWAS and the non-enforcement of the ECOWAS Court's judgments, this article does not suggest that this is an issue limited to West Africa or to Africa alone. To take one example, the judgments of the Inter-American Human Rights Court also face issues of non-implementation especially considerng the Court also lacks a permanent monitoring body.27 A second point of...

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