AJIL Symposium: Response to comments on “A New International Human Rights Court for West Africa”

[Karen J. Alter is Professor of Political Science and Law at Northwestern University, Laurence R. Helfer is the Harry R. Chadwick, Sr. Professor of Law at Duke University, and Jacqueline McAllister is Assistant Professor of Political Science at Kenyon College (as of July 2014).]

Many thanks to Solomon Ebobrah, Kofi Kufuor, and Horace Adjolohoun for their challenging and insightful comments our AJIL article, A New International Human Rights Court for West Africa. We are pleased to have provoked a debate about the drivers of legal integration in Africa and to see this debate linked to a larger set of literatures.  We hope that this symposium will encourage others to investigate the forces that have shaped regional integration projects around the world and to use evidence from ECOWAS to inform regional integration theory in general.

Our article attempts to stay on firm empirical ground and to generate as complete and accurate an account of the ECOWAS Court’s transformation as one can have at this moment in time.  But here is the rub—what does it mean to say “at this moment of time?”

There were many questions that we could not answer in research conducted only a few years after the events in question. For example, we did not interview the member state officials who debated the expansion of the Court’s jurisdiction.  This was in part due to a lack of time and money, but also because doing so was unlikely to yield different or more complete information.  The decision to extend the Court’s jurisdiction is recent and still contested.  This makes it tricky to interview participants, whose answers may be colored by or speak to the sentiments of the day.

Someday, African scholars may write a version of the recent book The Classics of EU Law Revisited, which examines foundational ECJ rulings fifty years later. The passage of time allowed EU historians to access personal archives and analyze the views of key individuals, and thereby reconstruct what happened before, during, and after these rulings.  We look forward to the day that our account of the ECOWAS Court is similarly dissected.  For now, here are our tentative answers to some of the questions raised in this symposium.

Why does the ECOWAS Court lack an exhaustion of domestic remedies rule?  We respectfully disagree with Horace Adjolohoun’s suggestion that ECOWAS judges themselves were “progressive” in rejecting an exhaustion of domestic remedies requirement.  All of the evidence we found indicates that the Court’s rejection of the exhaustion rule was faithful to the intent of the drafters.  ECOWAS officials and key NGO insiders agreed on the following account: the drafters of the Supplementary Protocol intentionally omitted an exhaustion requirement because domestic judicial systems could be insurmountably cumbersome, especially for poor litigants.  This decision was justified as an experiment that could be changed if it proved to be unworkable.  The Gambia later pushed for ending the experiment, but for reasons explained in the article the other states saw this as a self-interested move and rejected the proposal.

Now that the ECOWAS Court is hearing cases, the exhaustion issue remains hotly debated. Gambia’s proposal was defeated, but some political leaders would still like to raise barriers to make accessing the Court more difficult.  Yet even ardent supporters of human rights litigation in West Africa agree that at some point the Court will become overburdened and an exhaustion requirement will be added.  Could this give governments an opportunity to clip the Court’s wings?  Perhaps, but it may just as likely reflect a maturing judicial institution, much as the admissibility rules of the European Court of Human Rights have been narrowed over time.

Did the court reform campaigns by civil society and ECOWAS judges succeed because they channeled the member states’ desires?  We answer this question by noting that in statements following the Afolabi ruling, ECOWAS judges advocated for private litigant access in both economic and human rights cases, but that the proposal for access in economic disputes was later dropped from the court reform agenda.  To put the point more bluntly, our best assessment is that the proponents of broadening the Court’s access rules calculated that they had a good chance of obtaining direct access in human rights suits, but that direct access in economic cases would derail the reform effort.  We thus agree with Solomon Ebobrah that pressure from civil society succeeded because it dovetailed with the member states’ preferences.  That is often how political change happens. To get additional purchase on the issue, we offer a few counterfactuals and necessary and sufficient conditions.

• A.     Would the Court have gained a human rights jurisdiction absent the mobilization of ECOWAS judges, regional bar associations and NGOs? Our answer is “no.”  We think it highly unlikely that member states or the Secretariat would have on their own come up with the Supplementary Protocol that was adopted in 2005.  Mobilization by non-state actors was thus a necessary condition for the reforms.
• B.     Did it matter that civil society actors asked for something member states were prepared to give?  Yes.  Civil society mobilization was necessary but not sufficient.  Moreover, the decision to drop private litigant access in economic cases suggests that member state opposition would have been enough to kill a reform initiative.  This implies that government support or at least acquiescence was also necessary for the reforms.

Why was private litigant access denied for economic cases?  Was it due to a lack of mobilization? As we discuss, human rights groups were able to draw on ECOWAS rules facilitating the participation of regional NGOs.  But this only begs the question of why West African human rights groups were transnationally mobilized, while their trade and business counterparts were not.

It is not unusual for economic groups to be nationally as opposed to regionally organized.  In Europe, it took quite a bit of effort to create regional business associations.  Our article discusses the efforts of the National Association of Nigerian Traders (NANTs), which tried to get the ECOWAS Secretariat to challenge Ghana’s 1994 Investment Act.  Kofi Kufuor continues the story in this symposium, referencing the Court’s 2013 ruling dismissing a complaint raised by NANTs. Kufuor’s recent article also explains that rent-seeking by economic actors is a tried and true tradition in ECOWAS’ two most powerful states. Our hunch: had NANTs been invited to participate in the 2005 reform proposals, the organization would have asked for access in economic cases.  The Secretariat likely knew as much, which is why economic groups were not invited to participate.

Does external funding explain the decision to grant a human rights jurisdiction to the ECOWAS Court? External funding surely plays a role in African regional integration projects, a point that James Gathii has written about eloquently.  But we think that external financial support is neither necessary nor sufficient, which is to say that a stream of foreign money alone cannot sustain a regional integration scheme that cuts against fundamental national interests. Evidence for this statement includes the following:  (a) ECOWAS member states are not eager to open their markets to each other, something external funders desire; (b) external funding was not enough to protect the SADC Tribunal when it acted against the fundamental interests of Zimbabwe; (c) ECOWAS member states may have their own reasons to sustain the Court’s human rights jurisdiction.  External funding does, however, help to explain why human rights NGOs are regionally active.

How important was the Secretariat in securing and sustaining the ECOWAS Court’s human rights jurisdiction?  EU scholars have long discussed the importance of the European Commission in EU policymaking.  Our article explains why the ECOWAS Secretariat supported the 2005 Supplementary Protocol.  Moreover, our interviews suggest that the Secretariat has critical information.  The Secretariat communicates to member states and NGOs about what others are saying about policy proposals. We think the Secretariat “read the room,” and conveyed that private litigant access in economic cases would create political clashes that member states would oppose.

In sum, what were the necessary and sufficient conditions that led to the ECOWAS Court’s human rights jurisdiction?  Civil society mobilization, member state support, Secretariat backing were jointly necessary and sufficient for expanding the ECOWAS Court’s jurisdiction.  Yet this conclusion only begs the question of why such support existed.  Our friendly critics invoke “rationalist” and “public choice” explanations.  One can come up with rationalist explanations for both support and opposition by each of these groups of actors.  To go deeper, here is the argument in a nutshell:

• Transnational civil society mobilization was a necessary condition, and external funding was helpful and perhaps even necessary for this mobilization.
• Humanitarian interventions in West Africa were critical antecedent conditions for member states to give the ECOWAS Court a human rights jurisdiction.  Moreover, the full support of the regional hegemon, Nigeria, was crucial.
• The role of the ECOWAS Secretariat was important and underappreciated.

Taken together, these necessary and jointly sufficient conditions shape the strategic space within which the ECOWAS Court reviews human rights cases, or, as Horace Adjolohoun describes it, serves as a progressive force promoting human rights in West Africa.