Rule On Exhaustion Of Domestic Remedies Threat To ECOWAS Court

By Adoba Echono, Freetown Sierra Leone

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The President of the ECOWAS Court of Justice, Justice Edward Amoako Asante has said that the push in some quarters for the amendment of the Protocol of the Court to introduce the rule on exhaustion of domestic remedies is an existential threat to the Court.

 

Justice Asante who stated this in his closing remarks at the end of the 2024 ECOWAS Court International Conference in Freetown Sierra Leone added that any amendment of the Protocol of the court to allow such provision is an attempt to re-negotiate the mandate of the Court.

 

The rule of prior exhaustion of domestic remedies (also known as the ‘‘domestic remedies’’ rule) essentially stipulates that claims of violations of an individual’s rights cannot be brought before an international adjudicative body or procedure unless the same claim has first been brought before the competent tribunals of the alleged wrongdoing State, and these judicial remedies have been pursued, without success, as far as permitted by local law and procedures.

 

Justice Asante explained that “such amendment will weaken the Community Court and is not in the best interest of the Court or the Community Citizens and should therefore be resisted.

 

“It is therefore very disheartening that efforts are being made in some quarters to amend the Protocol on the Court to introduce the rule on exhaustion of domestic remedies. Without doubt, this is an attempt to re-negotiate the mandate of the Court and it is posing the greatest existential threat to the Court. It is also a grave access to justice issue.

 

“If this succeeds, it will drastically reduce access to the ECOWAS Court of Justice by Community Citizens, and other persons living in the territories of Member States who may be victims of human rights violations. This will weaken the Court, and it is definitely not in the best interest of the Court or the Community Citizens and should therefore be resisted.”

 

Justice Asante who disclosed that the proposed amendment was rejected by the participants at the conference appealed to Civil Societies and Member States to take necessary steps to stop such  recommendation to the amendment of the court’s protocol.

 

We are glad that this Conference is not in support of the attempt to introduce the rule into the normative framework of the Court and has rejected the idea in its recommendations.  We are therefore appealing to all participants, and the Civil Society in all Member States to take necessary steps through advocacy with relevant stakeholders in our home countries, to ensure that the proposed amendment, which is very imminent, does not pass,” he said.

 

On the region’s integration, he urged member states to take necessary steps to domesticate the ECOWAS Revised Treaty and the ECOWAS Protocols and to enact enabling laws that will enable national courts to play a more effective role in the integration process.

 

He said; “May I emphasize the fact that since ECOWAS has evolved from ECOWAS of States to ECOWAS of peoples, we must pay greater attention to the role of ECOWAS Community Citizens in the integration process.

 

“In order to do this, the Community citizens must be given greater participation in the affairs of the Community and given greater access to the ECOWAS Court of Justice in respect of the economic integration agenda of the Community.  They should be given standing to lodge claims in respect of the interpretation of Community texts or the legality of subsidiary instruments of the community or in respect of the failure by a Member State to honor its obligations under the Treaty and to trigger the sanctions regime under the ECOWAS legal texts, and to invoke community norms before national courts.

 

This is the only way we can refocus attention on the Community Court mandate of the ECOWAS   Court of Justice. Experience from the human rights mechanism of the Court has shown that the evolution of the Community Court mandate of the Court can  be faster  driven by non-State actors.”

 

Greater progress would also be made when the Community fully evolves from Intergovernmentalism  to Supranationalism.  Member States can only do this when they are prepared to cede part of their sovereignty to ECOWAS as a Supranational Organization to manage areas of our common interest.

 

The President of the Community Court said the collaboration between the ECOWAS Court and National Courts is expedient in the dispensation of justice in the region.

 

“We  will continue  to appeal  to  the Member States to take necessary steps  to domesticate the ECOWAS Revised Treaty  and  the  ECOWAS Protocols and  to enact enabling laws  that  will enable national courts to play a more effective role in the integration process. The time has also come for the relevant stakeholders to take steps to harmonize the legal and judicial systems of the Community.

 

“There is therefore an urgent need for collaboration between the ECOWAS Court of Justice and national courts and for judicial dialogue between the two court systems. The ECOWAS Court of Justice has repeatedly emphasized that it is not in competition with the national courts of Member States. We are a Court established by Treaty and our mandate is clearly prescribed by the Protocol on the Court.”

 

We cannot overemphasize the fact that law is at the center of any regional integration effort and that the  harmonization  of laws, and  a judicial organ for the interpretation of the treaty is  a  prerequisite. We cannot achieve the object and purpose of an integration treaty, without an effective legal organ. It is therefore in our collective interest to strengthen the ECOWAS Court of Justice rather than weaken it,” he said.

 

Justice Asante appealed to the Authority of Heads of State and Government of ECOWAS to restore the number of to judges seven and the tenure of the   judges of the Court, to five years renewable for another term of five years.

 

The number of judges of the Court was reduced to five from seven in 2018 as part of the restructuring of the Community and its institutions.

 

The tenure of judges was also reviewed from five years renewable for another term of five years to four years non-renewable.

 

The President said; “the decision to reduce the tenure of the judges to a four-year none renewable term and the reduction in their number from seven to five has constrained the effectiveness of the Court which operates on a panel of a minimum of three judges.

 

“We are therefore humbly appealing to the Authority of Heads of State and Government of ECOWAS, to restore the Membership of the Court to seven independent judges and to restore the tenure of the judges of the Court, to five years renewable for another term of five years as was prescribed in the initial Protocol on the Court.

 

There is also the need for Member States to comply with the judgments of the Court in good faith.  We are also urging the three Member States that are yet to appoint their competent national authorities to do so without further delay.”

 

On the jurisdiction of the court, Justice Asante explained that the ECOWAS Court is not appellate court over national courts.

 

He said; “We are not an appellate Court over national courts, and we don’t have the power to review in abstracto, the laws of Member States. As an institution of ECOWAS we have a duty to maintain good synergies between the Court and national stakeholders of Member States for the benefit of the Court and ECOWAS Community citizens. We therefore seek a cordial and harmonious relationship with the national courts.

 

“We have consistently exhibited this through our jurisprudence and programs.  We will continue to explore other avenues, including judicial dialogue, to deepen the fraternal relations between our Court and the national courts.”

 

The theme of the conference, ‘Enhancing the Role, Relevance and Effectiveness of the ECOWAS Court of Justice through the Strengthening of Synergies between the Court and National Stakeholders’’ according to Justice Asante was chosen in a bid to focus attention on the role and relevance of the ECOWAS Court of Justice in the ECOWAS integration legal landscape and the need to build synergies with national stakeholders, particularly the national courts of Member States.

 

The general objective of the ECOWAS International Conference, held annually, is to generate constructive discussions around the strengths and weaknesses of the Court’s relationship with various national stakeholders and explore practical solutions that can be adopted to strengthen such relationships for the enhancement of the role, relevance, and effectiveness of the Court.

 

The theme and the sub themes were also chosen in order to address the perceived gaps in the normative framework of the Court and the concerns of the national courts about certain aspects of the jurisprudence of the Court.

 

The 2024 ECOWAS International Conference, which started on Monday, 13th closed on 16th May with the adoption of the communiqué.

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