A call has been made, that the enforcement mechanism of the judgments of the Economic Community of West African States, ECOWAS Court of Justice should be reviewed to ensure the execution of the regional court’s judgments by member states.
The former Chief Registrar of the Community Court of Justice, Mr. Anthony Anene-Maidoh made the call at the 2023 International Conference by ECOWAS Court of Justice in Banjul, the Gambia with the theme: ECOWAS’ Zero Tolerance Unconstitutional Change of Government.
In his presentation, on one of the sub themes of the conference, An Appraisal of the Judgment Enforcement Mechanism of the Court of Justice, Mr. Anene-Maidoh, decried the non compliance of the regional court’s judgments by member states.
Mr. Anene-Maidoh who said that in the West African region, the Community Court of Justice, ECOWAS has gained credibility for its bold judicial pronouncements however noted that the continued non-compliance with the Court’s decisions by Member States may give rise to loss of confidence by the public in the court.
He says, “There is therefore a need to strengthen the enforcement mechanism of the Court in order not to render the Court a toothless bull dog.
The Court, like other international tribunals relies on the cooperation of States to comply with its decisions in good faith. The Court can only provide effective legal remedies when their judgments are complied with by Member States in accordance with the principle of Pacta Sunt Servanda. The judgments of the Court are binding and Member States have an obligation to comply.”
Adopt Desirable Measures
Mr. Anene- Maidoh said there was the need to re-design the enforcement mechanism of the judgments of the ECOWAS Court of Justice and to adopt desirable measures from other Regional Courts in order to strengthen the judgment enforcement mechanism.
He said the judgment enforcement mechanism of the ECOWAS Court of Justice, as it is presently, is rudimentary and not very effective as it is also not in accord with international best practice.
According to him “the initial Protocol on the ECOWAS Court of Justice did not provide the method of enforcement of the judgments of the Court. This lacuna was remedied by the 2005 Supplementary Protocol on the Court which provided the method of enforcement in a new Article 24.
“Although Article 24(4) of the 2005 Supplementary Protocol on the Court, provides that each Member State shall determine the competent national authority for the purpose of reception and processing of the writ of execution of the judgments of the Court in its territory, only seven Member States have complied.
This therefore poses a challenge for the enforcement of the judgments of the Court.”
Statistics on Compliance
He said the statistics on compliance with/enforcement of the judgments of the Court, which the Court has compiled from 16th March, 2023, shows that about Eight Member States have complied in varying degrees with some judgments of the Court.
“It must however be noted that, a majority of the judgments of the Court are yet to be complied with or enforced. The statistics of the Court shows that out of one hundred and forty-one (141) enforceable decisions delivered by the Court against Member States and ECOWAS Institutions, since the adoption of the Supplementary Protocol on the Court, only thirty-four (34) of the said decisions have been complied with.
“The above statistics clearly show that the status of compliance with/enforcement of decisions of ECOWAS Court of Justice by Member States and Institutions of the Community are not satisfactory because it shows a less than thirty percent (24.1%) compliance rate.”
In his recommendation, Mr. Anene-Maidoh said that there is the need to review the judgment enforcement mechanism of the ECOWAS Community Court of Justice with a view to incorporating useful measures in the judgment enforcement mechanism of other regional courts.
He said one such move was the enactment of implementing legislation for the enforcement of judgments of the Community Court by all ECOWAS Member States to enable national courts of Member States to recognize and enforce the judgments of ECOWAS Court of Justice.
Involvement of ECOWAS Commission
Mr. Anene-Maidoh said the involvement of the ECOWAS Commission and ECOWAS political authorities like the Council of Ministers and Authority of Heads of States and Government in the judgment enforcement mechanism of the ECOWAS Court of Justice would also help in the execution of the court’s judgment by member states.
Mr. Anene-Maidoh also recommended that the powers of the Court under the 2012 Supplementary Act on Sanctions against Member States that Fail to honour Their Obligations to ECOWAS, should be amended to expressly empower the Court to impose judicial sanctions for non-compliance with its judgments in the form of day to day or lump sum monetary penalty.
He said the Community Court should also be empowered to monitor and supervise the execution of its judgments.
“The Protocol on the Court should be amended to strengthen its judgment enforcement mechanism. Also, Article 77 of the Revised Treaty and the 2012 Supplementary Act on Sanctions against Member States that Fail to Honour Their Obligations to ECOWAS should also be amended in order to grant individuals and corporate body’s powers to trigger the sanctions regime the Act,” he added.
The Director General of the Nigerian Institute of Advanced Legal Studies, Professor Mohammed Tawfiq Ladan, in his presentation on the appraisal of the judgment enforcement of the ECOWAS Court of Justice, called on member states to ensure the effective implementation of the decisions rendered by the Community Court to ensure compliance with their treaty obligation under the Community Legal Order.
“Member States need to develop initiatives to increase their capacity to effectively execute court’s decisions, including cooperation with other ECOWAS Governance Architecture platform members to offer technical assistance where necessary,” Professor Ladab stated.
Action Plan
He said ECOWAS Court need to draw up an action plan with timelines and deliverable outputs in Liaising with the ECOWAS Commission and Parliament for engagement with national authorities on the implementation of its judgements, decisions and orders.
According to him it is imperative for the regional court to clearly determine its role in deciding the specificity of its judgements and the extent to which it will interact with other actors to ensure implementation of its decisions;
He said the court also needs to develop a more effective mechanism of tracking and monitoring implementation of its decisions, including continuing dialogue with the Member States’ Attorneys General and Chief Judges, which could help in hastening implementation of its judgements as Supranational decisions, not foreign judgments.
The conference, a major annual programme of the ECOWAS Court, is expected to produce recommendations on the way forward for credible elections and consolidation of democracy in the ECOWAS region.
Confidence Okwuchi
