By Brendan Sweeney
Could you tell me about the research work you are carrying out, as well as your connection to the Institute?
I am doing research on the human rights mandate of the Community Court of the Economic Community of West African States [the ECOWAS Court]. My objective is to analyse the Court’s mandate with a view to understanding the scope of human rights realization that it offers litigants. I am doing this as a Guest Researcher with the Research Department of the Danish Institute for Human Rights under the Research Partnership Programme.
You have been researching/analyzing the ECOWAS Court which has recently begun to hand down decisions on human rights cases. Could you briefly tell us something about the ECOWAS Court?
The ECOWAS Court was conceived under the 1975 Treaty of ECOWAS as a Community tribunal but emerged as a Community Court when the Protocol that gave it life was adopted in 1991. However, it was only in 2001 that the first set of judges was appointed and initially it could only rule in disputes between member states. However, the Court was also given the competence to hear cases brought by a member state on behalf of its nationals against another member states and after the Treaty was revised in 1993 it was agreed that the recognition, promotion and protection of human rights was as a principle upon which ECOWAS was founded. This fortified the place of human rights which had gradually appeared in the ECOWAS scheme of things. Between 2001 when the Court was constituted and 2004, the Court was idle because no cases were filed by member states or institutions of the Community. However this changed in 2004, when a Nigerian brought a case against his own state. The Court ruled that individuals did not have a right to come before it other than through the state of which they are citizen. And this was an interesting situation since the plaintiff had brought the action against his state. The absurdity of the situation led to pressure from the Court and civil society to grant access to the Court to individuals with respect to human rights and fundamental freedom. The result was that in 2005, a supplementary protocol to the 1991 Protocol of the Court was adopted by ECOWAS heads of state and government, expanding the competence of the Court, among other things, to directly receive cases from individuals alleging violation of human rights that occurs in any member state of ECOWAS. Since then, the Court has made decisions on about 13 to 15 cases where human rights violations have been alleged in member states.
Why is this Court unique and why you think it is important within the African context?
Before now, it had been alleged that economic integration schemes in Africa were largely driven by either the government or elite groups. So allowing individuals access to the Court is seen as one way to involve citizens of West African countries in the integration project. This is especially true as, even though we would like to wish it were different, human rights protection is not at its best in several West African states. In fact, the human rights situation may even have accounted for the notorious conflicts in the region. Apart from that, the municipal judiciaries of most African states are still growing and international judicial and quasi-judicial protection of human rights serves as a useful reinforcement of the domestic judicial protection. The African Court of Human Rights is still not functioning. And even when it is finally in operation, under the current Protocol of that Court, individuals will not have direct access to the Court. The Court has only just published its rules and a lot of this is still hazy. The African Commission on Human and Peoples Right is not a Court and it is battling under the weight of its workload. In these circumstances, the fact that the ECOWAS Court is able to hear human rights cases and deliver binding decisions is very important, at least from the perspective of West Africa. It serves as a good alternative to the African Commission and the African Court of Human Rights, as well as a potentially solid reinforcement of national judicial protection of human rights in West Africa.
How does the ECOWAS Court fit into the existing human rights architecture in Africa?
Until the ECOWAS Court appeared on the scene, the African human rights architecture was essentially made up of national courts, the African Commission (and from 2006/2007, the African Court of Human Rights). The ECOWAS Court is certainly not a domestic court. It is an international court and currently the only court within the ECOWAS legal system. The Court itself has said it is not a court of appeal vis-à-vis the national courts. It has no institutional link with the African Commission or the African Courts. Consequently, one cannot envisage any hierarchical relation between the ECOWAS Court and the supervisory bodies of the African Charter. So the ECOWAS Court lies somewhere between the national courts and the supervisory bodies of the African Charter. Not unlike the European Court of Justice in some sense, though they are totally different in the human rights mandate or the lack of it. It is therefore really difficult to pigeonhole the Court.
What is your assessment of the attitude of state parties to the ECOWAS Court and its human rights mandate to date?
From 2005, ECOWAS member states brought before the ECOWAS Court have participated actively in the processes and proceedings of the Court. For example, a provisional measure granted by the Court against Nigeria in 2005 was complied with. The Gambia, Mali and Senegal have all participated as defendants before the Court at one time or the other. However, in a recent case, the Gambia refused to participate in proceedings against it even though all procedures were complied with. One hopes that this does not mean the beginning of a negative attitude on the part of member states. But for now, it could be said that West African states have respected the Court as they ought to.
Do you think the ECOWAS Court could serve as a model for other regions in Africa?
With some modifications, I would say yes. This is because there are still issues that need to be ironed out and corrected in relation to the Court’s human rights mandate. However, I must point out that at least in two other regions, there have been some similar trends. Even though it lacks a human rights mandate as clear as that of the ECOWAS Court, the East Africa Court of Justice has a very progressive human rights judgment to its credit. Similarly, the Southern Africa Development Community (SADC) Tribunal had delivered a very interesting ruling involving human rights sometime this year. So, one could say that new trend is emerging in this regard and human rights academics in Africa are beginning to pay attention. But things are not yet very solid in this regard.
There seems to be a lot of focus on Africa – and the Continent’s resources – in both Western countries and Asia. Do you think this is of benefit to African countries or is it fuelling more inequality?
The subject of natural resources in Africa is a very delicate issue. Ordinarily, if African states lack the technical know-how to extract and exploit natural resources for the benefit of their people as required by the African Charter on Human and Peoples Rights, it is not be a bad thing for non-African states to assist. In fact, I think the International Covenant on Economic, Social and Cultural Rights envisages inter-state cooperation to facilitate the guarantee of rights contained in the Covenant. Unfortunately, current practices indicate that non-African States and their representatives are more interested in deriving maximum benefits from extraction activities for themselves than assisting Africans. The result is that elite settlement is used as an instrument to ensure that corruption is perpetuated to the detriment of the host states. In the process, internal conflict is promoted between different elites fighting for control of resources on the one hand and the elites and the ordinary people on the other hand. In other words, outside interest in the natural resources of African states is directly or indirectly responsible for the never ending conflicts in Africa, while reinforcing and fuelling inequality in African states. It also expands the gap between the so-called developed world and Africa in the sense that the natural resources which form the bulk of African wealth have now become a problem for the Continent while at the same time, allowing for the continued growth of Western and Asian economies. The maximum-profit drive propelling interest in Africa’s natural resources is certainly short-changing the Continent and its people. For as long as it continues, Africa will continue to be a continent dependent on aid.
How do you see the Danish Institute for Human Rights benefiting your research?
There are two ways to look it. On the one hand, the Institute has given me the opportunity of its excellent research facilities to carry out a thorough investigation of the ECOWAS Court in a comparative perspective. The European Court of Justice and its practice in the field of human rights seems to have influenced the emergence of a human rights regime under ECOWAS. Yet, there appears to be very remarkable differences between the two regimes. I think understanding the European system will enhance my appreciation of the salient issues around the mandate of the ECOWAS Court and allow me to focus properly on this. In addition to the facilities, I am having the benefit of interacting with expert researchers at the Institute whose insights have been very useful to my research. On the other hand, I believe that my research will enable the Institute to assess and identify appropriate entry points to pursue cooperation with the ECOWAS Court for the benefit of the entire West African region as part of the Institute’s West Africa project.
Profile: Solomon Tamarabrakemi Ebobrah
Education:
Currently Doctoral Candidate at the University of Pretoria, Master of Laws (LLM, Human Rights and Democratisation in Africa), University of Pretoria (2006), Nigeria Law School Abuja (Practice Certificate) (2000/2001), Bachelor of Laws (LLB) River State University, Nigeria (1999)
Career:
West Africa Coordinator, International Law in Domestic Courts (ILDC Project) (from August 2008), Assistant Editor CALS Journal of Nigerian Law and Practice (2007 to 2008) Tutor, LLM in Human Rights and Democratisation in Africa, Centre for Human Rights, University of Pretoria (from January 2007 to date), Lecturer, Faculty of Law, Niger Delta University, Nigeria (from September 2004 to date), Senior Legal Officer, Nigeria Copyrights Commission (2004), Associate Solicitor, S. Biambo & Co. (Legal Practitioners) (2001 – 2004)
For further information, please contact Brendan Sweeney at