Mmesomachukwu Ndubueze-Nduka*
Introduction
This case review examines the judgment of the Community Court of Justice of the Economic Community of West African States (ECOWAS Court) in Shalimar Abbiusi v. Republic of Ghana, issued on November 22, 2024. The decision is important for three reasons. First, it clarifies the extent of the Court’s authority to issue default judgments under its Rules of Procedure, stressing that such judgments are not automatic but depend on the merits of the claim. Second, it offers authoritative guidance on interpreting Article 6 of the African Charter on Human and Peoples’ Rights in cases involving immigration enforcement and deportation. Third, it reaffirms the basic principle that procedural safeguards like promptly informing a person of the reasons for their arrest are essential for protecting against arbitrary detention.
The case arose from the Applicant’s arrest, detention, and deportation by officials of the Ghana Immigration Service. The Court was called upon to determine whether these actions amounted to violations of the Applicant’s rights to liberty, fair hearing, freedom of movement, and non-discrimination, and to award appropriate reparations. The Respondent State failed to file a defence within time, leading to an application for default judgment. While the Court found only one violation—arbitrary arrest and detention following the withdrawal of charges—the judgment nonetheless lays down important procedural and substantive principles for human rights protection within ECOWAS.
Facts
The Applicant, Shalimar Abbiusi, is a Belgian national who had resided in Ghana for approximately five years and was serving as the spokesperson for The New Force, a political movement seeking to challenge the prevailing governance structure in Ghana. On the 1st of December 2023, she was invited by the Ghana Immigration Service for questioning regarding her residence permit. She honoured the invitation on 4 December 2023. Upon arrival, the invitation turned into an arrest, and she was detained. On 6 December, she was charged under Section 52(1) of the Immigration Act 2000 (Act 573) for allegedly obtaining a student permit by false declaration and arraigned before the Kaneshie District Court, which granted her bail and fixed the hearing for 19 December 2023.
The Applicant alleged that while on bail, she was subjected to repeated threats of deportation by immigration officers, undermining her right to a fair trial. On the date set for the hearing, the Ghana Immigration Service withdrew the charges but immediately re-arrested her, without informing her of the reasons. She was then taken to the National Investigations Bureau, detained in an undisclosed location for over 12 hours without access to counsel, and deported to Belgium within 24 hours. She claimed that these actions amounted to violations of her rights to liberty, fair hearing, freedom of movement, and non-discrimination under the African Charter and other international instruments. She sought declarations and compensatory damages in the sum of USD 1,000,000.
The Respondent, though duly served with the initiating application and subsequent processes, failed to file its defence within the one month stipulated by the Rules of Court. The Applicant applied for default judgment. At the hearing on 8 July 2024, the Court noted that the Respondent had filed a response to the default judgment application out of time and without a reasoned request for an extension. The Court therefore proceeded to consider the application for default judgment under Article 90 of the Rules.
Issues for Determination
The Court identified and addressed the following issues:
- Whether it had jurisdiction and whether the application was admissible
- Whether the Applicant’s rights to liberty, fair hearing, freedom of movement, and non-discrimination were violated
- Whether the application met the requirements for default judgment; and
- Whether the Applicant was entitled to the reliefs sought, particularly compensation.
Decision of the Court
On the preliminary issues, the Court affirmed its jurisdiction under Article 9(4) of the Supplementary Protocol, which grants competence to adjudicate cases alleging human rights violations by Member States. On admissibility, it held that the application satisfied the conditions under Article 10(d) of the Protocol and relevant provisions of the Rules: the Applicant established victim status, the application was not anonymous, and there was no evidence of concurrent proceedings before another international tribunal. The Court then examined whether the application satisfied the conditions for a default judgment under Article 90(4) of the Rules, which require the Court to ascertain: (a) that the application is admissible; (b) that appropriate formalities, including service on the respondent, have been complied with; and (c) that the application appears well-founded in law and fact. The Court stressed that default judgments are not granted automatically and that the applicant bears the burden of proving the merits of the case even in the absence of a defence.
On the allegation of arbitrary arrest and detention, the Court distinguished between the Applicant’s initial detention on 4 December 2023 and her subsequent re-arrest on 19 December 2023. It held that the initial detention was lawful, as it was based on reasonable suspicion of an offence under section 52(1) of the Immigration Act and fell within the constitutional limit of 48 hours under Article 14(3)(b) of the 1992 Constitution. However, the second detention was deemed arbitrary because the Applicant was not informed of the reasons for her re-arrest at the time of arrest, contrary to Article 14(2) of the Constitution and the African Charter. The Court observed that a notice of removal served after the arrest did not discharge the legal obligation to provide reasons promptly, underscoring that procedural safeguards are essential to prevent arbitrariness.
The court dismissed the claim of breach of the right to fair hearing for lack of substantiation. It noted that while the Applicant alleged that threats of deportation undermined her fair trial rights, she failed to identify which component of the right, such as presumption of innocence, right to counsel, or trial within a reasonable time, was infringed, and provided no concrete evidence beyond general assertions. The claim of infringement on her freedom of movement was also dismissed. The Court clarified that detention alone does not constitute a violation of the right to freedom of movement, which primarily concerns restrictions on movement within a territory or the ability to leave and return to one’s country of origin. In this case, the Applicant’s claim rested solely on her alleged seven-day detention, which was unsubstantiated. The court rejected the claim of discrimination on the grounds that the Applicant did not demonstrate any differential treatment compared to others in similar circumstances. The mere fact of being a foreigner did not, without more, establish a violation of these rights.
Regarding reparations, the Court awarded the Applicant USD 10,000 in damages, which is significantly less than the USD 1,000,000 claimed. It reasoned that compensation must be fair and proportionate to the harm suffered, bearing in mind that full restitution is generally impossible in cases of human rights violations.
Conclusion
The decision in Shalimar Abbiusi v. Republic of Ghana illustrates the ECOWAS Court’s careful approach to default judgments and human rights adjudication. By upholding the lawfulness of the Applicant’s initial detention but declaring her re-arrest and subsequent detention arbitrary, the Court emphasized the centrality of procedural safeguards as an integral part of the right to liberty. At the same time, its dismissal of claims relating to fair hearing, freedom of movement, and non-discrimination reflects the Court’s insistence on clear evidence and specific pleadings.
*Mmesomachukwu Ndubueze-Nduka is a young professional with a strong interest in Public International Law and International Environmental Law. She graduated with a First Class from the University of Benin, where she emerged as the Best Graduating Student of the Faculty of Law.
