Africa

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.

AJIL Symposium: Can the ECOWAS Court Revive Regionalism Through Human Rights?

[Dr. Horace S. Adjolohoun is a Senior Legal Expert at the African Commission on Human and Peoples’ Rights. He recently completed his LLD thesis on Giving Effect to the Human Rights Jurisprudence of the ECOWAS Court of Justice: Compliance and Influence at the University of Pretoria.] I agree with Alter, Helfer and McAllister that progressive judicial lawmaking may be risky, particularly in an environment where domestic politics are not in favor of a supranational court that limits the sovereignty margin of state organs. In the context of the ECOWAS Court of Justice (ECCJ), an interesting question could therefore be whether, by a purposive adjudication, the Court could read community law through its human rights mandate. The Court has repeatedly given a negative answer, and many have warned of the related risks, particular bearing in mind the fall of the SADC Tribunal. An association of factors makes me suggest that the chance could be worth taking. The ECCJ is the official judicial body in which ECOWAS has vested the mandate to oversee the interpretation and application of norms adopted under the aegis of the Community (‘original’ Community law). I suggest that the African Charter has acquired the status of Community law because of its 'constructive' incorporation in ECOWAS instruments, particularly the 1993 Revised Treaty and the 2001 Governance Protocol. On the basis of the 2005 Court Protocol, the ECCJ has confirmed that status through its successive human rights judgments, starting from the first one in 2005. Article 31(1) VCLTTreaty law commands that interpretation of conventions should follow the ordinary meaning and not expand beyond the initial intention of the parties. Particularly, in the framework of regional integration arrangements, the ‘agency’ doctrine suggests that the Agent (here the ECCJ) may not usurp legislative functions by either interpreting the silence of the law in a particular direction (which I argue the ECCJ did in the Ugokwe case) or – and thereby – generating new norms that were not expressly formulated by law-makers (here, state parties)  (see Stone Sweet, 10-15). Some of the authors of the lead article support that approach in a previous work. I agree that the silence of the 2005 Protocol regarding the well established international customary law rule of exhaustion of domestic remedies is as plain as was the lack of direct access for private litigants in the Afolabi era. Despite this, the ECCJ’s judges espoused purposive – and, in my view, ‘progressive’ – judicial lawmaking regarding exhaustion. The ECOWAS human rights ‘regime’ borrows from the African Charter-based system, which poses seven admissibility requirements for complaints to be accepted by the African Court and Commission. In the practice of the Commission, the rule of exhaustion is by far the one that attracts more contention. The 2005 ECCJ Protocol provides for ‘non-anonymity’ and ‘non-pendency’ as the two admissibility conditions. From the foregoing, it is surprising that, in the course of lawmaking, ECOWAS states provided expressly for two ‘minor’ conditions, and remained silent for a ‘major’ condition, which has always attracted dispute.

AJIL Symposium: Regional Courts, Regionalism, Critical Junctures and Economic Integration in Africa

[Dr. Kofi Oteng Kufuor is a Professor at the University of East London, UK.] In November 2013 the ECOWAS Community Court of Justice threw out a case brought before it by Nigerian traders seeking a judgment that Ghana’s investment legislation which discriminated against ECOWAS nationals was inconsistent with ECOWAS law. The decision by the Court was surprising not only on account of it being a setback to the ECOWAS goals of a single economic market but it was also a blow to the supranational regime that the members created with the adoption of the Revised ECOWAS Treaty. Moreover, this decision was even more astonishing as it went against ECOWAS law and related protocols on the free movement of persons, right of residence and establishment. The decision was also surprising in the wake of the efforts by the Court, carefully outlined in the paper “A New International Human Rights Court for West Africa: The ECOWAS Community Court of Justice" by Alter, Helfer and McAllister (AHM), to extend its power. The research by AHM states that in the early stages of the Court’s power grab, economic union was sacrificed for the protection of human rights. At the core of the paper by AHM is that a constellation of actors, driven by a variety of interests, came together at a critical juncture in ECOWAS politics – there was widespread concern about the respect for human rights and humanitarian law - and this meeting of persons and policy space created an opportunity for the Court to expand its reach into the realm of human rights. However, if we accept the core arguments of public choice theory then the Court could have exploited the petition before it to seize more power for itself. Thus public choice theorists studying international organizations will be surprised to see that this supranational moment has slipped especially with regard to an organization that still has compliance and legitimacy problems. AHM assert that the decision to allow private interests to bring human rights suits before the ECOWAS Court was done at the expense of the Court serving as an engine for realizing the economic integration objective. The inference from this is that while a critical juncture appeared and thus an opportunity seized in the name of human rights, a similar opportunity is yet to come into existence for economic interests. However, looking at the rejection of the traders’ suit from a non-economic “irrational” point of view, the ECOWAS Court has struck a blow for re-connecting markets to society by abating neoliberal economic openness that subordinate Ghana’s investment law to ECOWAS law. Was the Court able to do so because the kind of interests that birthed the Court’s rights moment did not exist at the regional level? Inferred from AHM’s work the answer seems to be yes.