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. I propose that the silence of the 2005 Protocol regarding the rule of exhaustion could as well have been interpreted as an assumption by states that exhaustion is so customarily entrenched in international – human rights – adjudication that an express provision was redundant. Even if one may argue, among others on the basis of opinio juris communis, that ECOWAS states involved in litigation before the ECCJ have subsequently endorsed non-exhaustion as one of the admissibility rules, to what extent does the Ugokwe interpretation bind non-Respondent states? For instance, despite the Ugokwe precedent (2005), Niger (Koraou, 2008) and The Gambia (Manneh, 2009) raised the same objection. Also, in spite of Niger and Nigeria’s subsequent acceptance of the ECCJ’s judgments in those cases, The Gambia made an attempt to have the rule introduced altogether. It does not seem that the vote in favor of non-exhaustion has put an end to states’ submissions on exhaustion. In any case, the point is that the ECCJ seems to adopt a dual approach to judicial lawmaking depending on the issue at stake. I suggest that direct access for individual is as important in the work of international – human rights – mechanisms as are the rules regulating such access, particularly the most popular rule of exhaustion. In fact, that rule – whether and how it applies – is key to international human rights litigation. Consequently, risks of ‘progressive’ judicial lawmaking applied equally in the Afolabi (individual access) and Ugokwe (exhaustion) cases.

I argue that the ECCJ could have done better in the Afolabi case. However, in my humble view, the best opportunities for ‘progressive’ judicial lawmaking were missed in the Makpror, Gbagbo et al and CDD cases to which I refer later. I believe so because ECOWAS and its human rights Court borrow from the European Union and Court of Justice models. The European Court of Justice has done progressive judicial lawmaking on a step-by-step basis, through water testing, and by guessing states’ reaction from the EU Commission. As recalled earlier, the ECCJ has, on many occasions and in many ways, tested the water with support from states rather than political backlash. On the basis of my premises, then why should the Abuja Court not read Community law (for instance free movement of persons, right of establishment, etc) through its successful human rights judicial lawmaking? Has the Court failed to adopt a step-by-step judicial lawmaking rather than an out-of-court approach to ‘progressive’ lawmaking? The ball seems to be in Court’s yard as litigants have offered several opportunities for water testing.

For instance, the 2001 Good Governance Protocol is the good example of an instrument that is not a human rights convention of ECOWAS but rather ‘Community law’, which however contains a wide range of provisions that look more like (human) rights than (states) obligations. Even after it was granted an express human rights jurisdiction, the ECCJ rejected all attempts to claim individual rights from the 2001 Protocol, whether in Ameganvi (Parliamentarians’ Removal) v Togo or RADDHO (Presidential Election) v Senegal. Could the ECCJ infer such rights through purposive adjudication? I think of Germany’s argument by Professor Simma in the LaGrand case (para. 75). A comment by Bedi (p. 265) is worth nothing in that respect.

Another example could be the Court’s approach to NGO standing, at least in human rights litigation. It seems that the ‘progressive’ interpretation of the Court in Ugokwe did not apply to NGOs either. Apparently, granting access to NGOs is not a constant position of the ECCJ, at least not before the RADDHO case in 2012. The Court successively granted access in 2010 (SERAP Education and Environment cases), refused access in 2011 (Makpror, Gbagbo, and Others v Côte d’Ivoire; CDD v Niger), and granted access again in 2012 (RADDHO v Senegal). Where it granted access, the Court did so on the basis of actio popularis and/or public interest. Refusal of access was reasoned by the fact that the Complainant was not personally aggrieved and lacked authority to represent the ‘people’. Whether the RADDHO preliminary ruling has put an end to the standing ‘tango’ remains to be seen.

I agree that the Court should beware of the lurking dangers of navigating in the risky environment of sovereign interests. Yet, I suggest that the ECCJ could make of its human rights mandate, a more benefiting use to its original ‘Community law development’ function. The Court could, through ‘water testing’ adjudication, use human rights to send signals to the political organs of ECOWAS, until the Commission becomes a more functional litigant that generates Community law litigation and jurisprudence. In fact, the ECCJ could make its human rights successes benefit the entire Community by also doing via judicial means what it has been doing through indirect advocacy.