Facts
This Application was brought by eighth Applicants: the Republic of Niger; Dr Fatimata Moussa, a national of the Republic of Niger resident in Niamey; la Societe Nigeriene d’Electricite, a semi-public limited company in Niamey, Niger; la Chambre de Commerce et d’Industrie du Niger (Niger Chamber of Commerce and Industry) a professional body in Niger; Le Conseil des Users des Transport Publics (Nigerien Council of Public Transport Users) an industrial and commercial body in Niamey; Le Conseil National de l’Ordre des Pharmacisens du Niger (National Council of the Association of Pharmacists of Niger); La Chambre d’Agriculture du Niger (Niger Chamber of Agriculture); and Le Syndicat des Commercants Importateurs du Niger (Importers and Traders Union of Niger). All these entities have their head office in Niamey, Republic of Niger.
The Respondents were the ECOWAS Authority; the Mediation and Security Council of the Economic Community of West African States (‘the ECOWAS Mediation and Security Council’); the ECOWAS Commission.
The core of the substantive case was for the court to decide on the legality of the sanctions imposed on Niger by the ECOWAS Authority of Head of States and Government (the Authority) in Decisions MSC.A/DEC.05/07/23 (30 July 2023) and MSC.A/DEC.05/08/23 (10 August 2023).
Following the July 26 coup d’etat in
Niger, the Authority met in Abuja on 30 July to consider the situation in
Niger. At the meeting the Authority responded with a barrage of sanctions.
These are:
(i) The closure of land and air borders between ECOWAS countries and Niger.
(ii) The establishment of an ECOWAS exclusion zone for all commercial flights to or from Niger.
(iii) The suspension of commercial and financial transactions between ECOWAS member states and Niger.
(iv) The freezing of all service transactions including utilities.
(v) The freezing of the assets of the Republic of Niger in the ECOWAS central banks.
(vi) The freezing of the assets of the Republic of Niger and those of its parastatal companies held in commercial banks.
(vii) The suspension of Niger from all forms of financial assistance and transactions with all ECOWAS financial institutions, especially EBID and BOAD.
(viii) A travel ban and asset freeze on military officers involved in the coup attempt. These measures also apply to the members of their families and to civilians who agree to be part of any institution or government to be set up by these military officers.
In addition to these, Nigeria withdrew electricity supply to Niger.
Further to this, the ECOWAS Authority had another extraordinary session on 10 August 2023 where it decided:
(a) To reaffirm all measures and principles agreed during the Extraordinary Summit on Niger held on 30 July 2023.
(b) To enforce measures, including those relating to the closure of borders, travel bans and the freezing of assets of persons or any groups of persons whose actions have the effect of impeding peaceful efforts to ensure the speedy and full restoration of constitutional order.
(c) To instruct the Committee of Chiefs of Defence Staff to activate without delay the ECOWAS Standby Force with all its elements.
(d) To order the deployment of the ECOWAS Standby Force to re-establish constitutional order in the Republic of Niger.
The Applicants were also aggrieved by the Authority’s call on the West African Monetary Union (UEMOA) and all other regional bodies to implement its decision. They argued that the decisions of a political, diplomatic, economic, and social nature, not only contravene Community legal instruments and binding norms of international law, both for member States and the organisation itself, but also inflict economic, financial, social, and human suffering on the people of the Republic of Niger, a landlocked member State.
Reliefs Sought
The Applicants prayed the court to prevent excessive, irreparable consequences and damage for the civilian population of Niger. Accordingly, they requested that pending the determination of the main Application, the Court should indicate the following provisional measures:
i. the suspension of all politically and economically binding sanctions against the Republic of Niger and its population resulting from the decision MSC.A/DEC/5/07/23 of 30 July 2023 until the merits of the case are decided;
ii. the suspension of decision MSC.A/DEC.6/08/23 dated 10 August 2023 ordering, especially, the activation and deployment of the ECOWAS Standby Force against Niger until the merits of the case are decided; and
iii. that all ECOWAS Member States and ECOWAS Institutions comply with the provisions of Article 23 of the Supplementary Protocol A/SP.1/01/05 amending Protocol A/P1/7/91 on the Community Court of Justice.
Jurisdiction of the Court and Admissibility of the Claim
On jurisdiction, the Applicants argued that the court has competence to rule on the Application, basing themselves mainly on articles 9(1)(c), (2) and 10 of the Protocol of the court. Article 9(1)(c) underpins the court’s jurisdiction to determine the legality of regulations, directives, decisions, and other legal instruments adopted by ECOWAS. Article 9(2) gives jurisdiction to the court to determine any nono-contractual liability of the Community and order ECOWAS to pay damages or make reparations for official acts and omissions of any Community institution or Community officials in the performance of official duties. Article 10 deals with access.
The Respondents raised preliminary objections to the jurisdiction of the court to hear the application on two grounds. The first ground was that the military government of Niger and all bodies appointed or established by the National Council for the Safeguard of the Homeland (CNSP), or acting on its behalf are illegitimate and not recognised by ECOWAS. Based on this, the respondents argued that the case, having been initiated by the Legal Agent of the State on behalf of the CNSP, cannot be admitted by the court. Also, that since the main application submitted by Niger is inadmissible, the court cannot admit an application for provisional measures that is connected to it.
The Respondents’ second ground was based on article 9 of the court’s Protocol. On this ground, they argued that the interests of the persons and entities suing with the Republic of Niger are directly linked to those of Niger as currently controlled by the junta. They further argued that because the other Applicants in the case share common interests with the military junta of Niger, that admitting the present application based on the standing of the remaining Applicants would indirectly serve the junta’s interests and lend credence to the unconstitutional change of government. They therefore urged the court to declare the substantive application and the request for provisional measures by the Republic of Niger and its co-applicants inadmissible.
It would have been interesting to see how the Applicants responded to the preliminary objections. There is no indication from the judgment that they had the opportunity to respond.
The Decision of the Court
The court declared that it has prima facie jurisdiction under its Protocol to hear the case because the measures imposed on Niger, which the Applicants challenge in this case, are official decisions of ECOWAS taken by its highest organ – the ECOWAS Authority.
As the application before the court at this stage was the request for provisional measures, the court had to determine whether the threshold for the indication of provisional measures set out in article 21 of the Protocol of the court and article 79 of the Rules of the court was met.
In its apparent enforcement of these provisions, the court had laid down the conditions for the indication of provisional measures to be that: (a) the court is competent prima facie to adjudicate on the substantive case, or if it is not manifestly incompetent to adjudicate on the substantive applications filed; (b) the substantive application is prima facie admissible or if it is not manifestly inadmissible; and (c) there is urgency in regard to the circumstances of fact and law invoked in support of the application for interim measures. (Godswill Mrakpor & 5 Others v Authority of Heads of State and Government, ECOWAS & Another [2011] CCJELR 75 and Hissein Habre v Republic of Senegal [2013] CCJELR 287, 300 (paras 34-35))
On the first condition, the court considered the capacity of the Applicants to bring the claim within the context of whether the substantive application is, prima facie, admissible or at least not manifestly inadmissible. Taking the non-recognition of the military junta in Niger (the 1st Applicant) by ECOWAS as its decisive factor, the court concluded that the Nigerien military government “manifestly lacks the capacity to appear before the Court”. In consequence, Niger’s substantive application and request for provisional measures were held to have been brought by an unconstitutional and unrecognised governmental authority and therefore manifestly inadmissible.
Regarding the non-state entities that sued alongside Niger, the court observed that, in appropriate cases, individuals and corporate bodies whose rights have been harmed by acts or omissions of ECOWAS Institutions, or their officers may institute proceedings before the court for remedies. The court however stated that none of the reliefs sought in the application aims to redress any specific injuries that have been pleaded by, and are personal to, the individuals and entities suing alongside Niger. Consequently, the court held that it must hold that the Application is manifestly inadmissible in respect of the non-state Applicants within the meaning of articles 9(c) and 10(c) of the Protocol of the Court.
Having declared that the substantive Application upon which the request for provisional measures was based was manifestly inadmissible, the court excused itself from considering the requirement of urgency.
Matters Arising
This is a very important case, not just for the issues it addressed, but mainly for the fact that it falls within an aspect of the jurisdiction of the court that is rarely invoked. This is the jurisdiction to scrutinise the compliance of the acts of the organs of ECOWAS with the laws of ECOWAS. The rarity of the invocation of this jurisdiction arises from article 10 of the Protocol of the court. Paragraphs (a) and (b) of article 10 reserve the capacity to invoke the jurisdiction of the court for failure by a member State to fulfill an obligation and the legality of an action in relation to any community text to member States, the Council of Ministers and the ECOWAS Commission. Paragraph (c) grants access to individuals and corporate bodies in proceedings for the determination of an act or inaction of a Community official which violates the rights of the individuals or corporate bodies; and (d) individuals on application for relief for violation of their human rights.
Unfortunately, the court appears not to have recognised the role it had the opportunity to play in this case as the highest court of the Community. As a result, the court missed the opportunity to intervene in a deadlock by an assurance to the parties that it has the independence and willingness to uphold the rule of law. Obviously, the court took sides with the ECOWAS Authority in a politically charged atmosphere and by so doing, practically shut out a member State from its jurisdiction thereby alienating the State from the judicial system of the Community.
As we shall show in the following parts, this was a missed opportunity for the court to affirm the supremacy of the constitutional order of the community, represented by the Revised Treaty, over the acts of all organs of the community. We strongly believe that the court did not quite live up to its expectations as a court of justice – the only and supreme judicial organ of the Community.
The Capacity of Niger
Admissibility of applications in the ECOWAS court, as distinct from access, could be assessed through article 10(d)(i) and (ii) of the Protocol of the Court. Having granted access to individuals in human rights cases, the Protocol provides in article 10(d)(i) and (ii) that for an application to be admissible, it shall: (i) not be anonymous; and (ii) be made whilst the same matter has been instituted before another international court for adjudication. As access to individuals is granted only in respect of human rights cases, it necessarily follows that the subject matter of a case brought by an individual must relate to the violation of human rights of the individual.
The approach of the ECOWAS court is to first determine the capacity of an applicant as a proper party to file an action ahead of determining whether a party is a victim or otherwise. The court considered that it is imperative to first examine the capacity of the Applicants in this case to institute an action. (Citing Registered Trustees of Faculty of Peace Organisation & 3 Ors v. Federal Republic of Nigeria, Application No: ECW/CCJ/APP/30/21 Judgment No: ECW/CCJ/JUD/06/22).
It is not clear whether the court treats capacity differently from access. It seems to us that the capacity of an applicant to bring a claim is settled by the provisions relating to access in the Protocol of the Court. An entity that has access to bring a particular category of claim should invariably be held to have capacity to bring that category of claim. Whether the applicant is disentitled from bringing the claim by locus standi, or the anonymity of the claim, or because the claim is pending before another international court, are all questions of admissibility that may deny the court the jurisdiction to hear the application. The point being made is that a matter may rightly be declared inadmissible for several reasons, though brought by an applicant that has the capacity to bring the claim.
Treating capacity as a form of admissibility is likely to create difficulties for the court as it did in this case. The difficulty is that the approach led the court to prematurely affirm that it has jurisdiction to hear the case only to later overrule itself to hold that Niger lacked capacity (access) to invoke the jurisdiction of the court while under suspension from ECOWAS. If it treated capacity as part of access, it would have determined from the outset that Niger lacked access to the court for the time being and that the want of access robbed the court of jurisdiction over the case. The question as to whether a claim falls within the jurisdiction of the court is very different from whether the court has jurisdiction to hear a particular case, notwithstanding that the case falls within the subject-matter of the court’s jurisdiction. It would have been a different thing if the court was merely observing that the claims fall within its jurisdiction without affirming that it has jurisdiction over the matter as constituted, given that the totality of the claim, including the subject-matter and parties must be considered in dealing with jurisdiction.
There are thus legal bases for inquiring into whether the court was right to equate capacity (right of access) to the admissibility of the claims. In our view, capacity precedes admissibility in that it is what is required to be in place to confer jurisdiction on the court. As the ICJ had cause to state in Legality of Use of Force (Serbia and Montenegro v. Belgium), Preliminary Objections, ICJ Rep. 2004, 279, 299, para. 46, the question of capacity is a ‘fundamental question’ which must be decided before any other question; and, if necessary, the court can raise it ex officio. As a result, the ICJ considers itself bound to deal with issues relating to the admissibility conditions laid down in article 36 of its Statute only if it found that the condition for access is fulfilled (Legality of Use of Force (Serbia and Montenegro v. Belgium), Preliminary Objections, ICJ Rep. 2004, 279, 299, p. 299, para. 46)
It would therefore appear the court adopted the wrong approach to this case by affirming its jurisdiction to hear the case from the outset. With all deference to the right of the court to decide its own procedure, it appears the court should have dealt with capacity as part of jurisdiction and on that basis, assuming it was rightly done, strike out Niger from the suit. This was the approach adopted by the court, and rightly too, in Registered Trustees of Faculty of Peace Organisation & 3 Ors v Federal Republic of Nigeria Application No: ECW/CCJ/APP/30/21 Judgment No: ECW/CCJ/JUD/06/22.
We shall now interrogate the reasons given for holding that Niger has no capacity before the court. The main trust of the court’s reasoning was that the Republic of Niger, as currently controlled by the military junta, manifestly lacks standing before the court because it is not recognised by ECOWAS. The court recalled its jurisprudence in Aristides Gomes v Senegal and 3 Others ECW/CCJ/JUD/08/23, para 69, that “an entity may be considered the government of a State, if it is a stable political organisation that objectively has effective administrative control over the territory and generally enjoys obedience from the population.” The court further affirmed that “under rules of general international law, an entity that meets the aforementioned criteria is regarded as the government of the state regardless of whether it ascended to power through unconstitutional or illegitimate means and irrespective of whether other State recognise its legitimacy.” (Aristides Gomes, para 70).
To these general rules accepted by the court, it admitted an exception in the right of States, whether individually or collectively, to decide whether and on what grounds to recognise or deal with governments that ascend to power illegitimately. For this, the court relied on the common prohibition of unconstitutional change of government within ECOWAS and the African Union, and the requirement that the government of member States must obtain or maintain power through constitutional and democratic means. (Aristides Gomes case, para 71). Categorical, the court declared:
“Based on the general position that obtains under public international law, the military junta currently controlling Niger may be considered as the government of the state. However, the rules of collective recognition of governments at ECOWAS and, at the level of the African Union, to which Niger has subscribed qualify that general position. In fact, these rules abhor the attainment or maintenance of power through unconstitutional means”.
We do not believe it was judicially prudent for the court to have dabbled into the realm of recognition, given the highly political nature of that subject. By judicially derecognising the military government of Niger the court inadvertently admitted the political impasse between the government of Niger and the ECOWAS Authority into a legal one with all its attendant consequences. These consequences arise from the fact, as accepted by the court, that the junta is in full and effective control of the territory of Niger and therefore the only sovereign authority there for the time being.
There are good reasons why the British and American courts sometimes refuse to follow the leading of the executive in adjudicating on matters relating to, or arising from, an unrecognised government. Carl Zeiss Stiftung v. Rayner & Keeler Ltd, No 2 (1967) AC 853, Hesperides Hotels v. Aegean Turkish Holidays Ltd, (1978) 1 All E.R., 277, and Tinoco Arbitration, Great Britain v. Costa Rica, 18 Am J Int’l L 147, 154 (1924). These reasons, which may have serious consequences for a treaty based consensual organisation as ECOWAS, stems from the legal status of the acts of the unrecognised government within its territory and vis a vis other member States and nor member States alike. As the non-recognition of the government by ECOWAS has no bearing on the legality of the acts of the unrecognised government nor may the courts of other States, even member States refuse to recognise such acts.
The ECOWAS court tried to minimise the impact of its decision by holding that there are certain exceptional circumstances under which the capacity of a member State whose government did not constitutionally obtain power can appear in proceedings before the court. The court relied on article 25(2) of the African Charter on Democracy, Elections and Governance 2007 (to which Niger is a party), to hold that sanctions did not completely sever Niger from its international obligations, including those owed to ECOWAS or the AU, particularly if they relate to the protection of human rights. Article 25(2) provides that despite the suspension of a member State for an unconstitutional change of government, “the suspended State Party shall continue to fulfil its obligations to the Union, in particular with regard to those relating to respect of human rights.” The court also relied on article 45(3) of the ECOWAS Protocol on Democracy and Good Governance which states that during the period a Member State is suspended for unconstitutional change of government, “ECOWAS shall continue to monitor, encourage and support the efforts being made by the suspended Member State to return to normalcy and constitutional order.”
The court reasoned that, given the continuing obligation of the suspended State to fulfil its international commitments, particularly those relating to human rights, and the responsibility of ECOWAS and the AU to maintain a continuous relationship and take measures to support the return to constitutional rule, the court’s doors cannot be entirely closed to a member State suspended for an unconstitutional change of government. But that instances in which the capacity of a suspended State, like Niger, will be recognised in proceedings before the court would necessarily be limited to the State’s ongoing obligation to respect human rights or matters related to the restoration of constitutional order within the State.
Furthermore, the court admitted that a suspended State, such as Niger, may have capacity before the court as a respondent in cases brought against it and that, once sued as a respondent, the State is entitled to avail itself of all procedures, including post-judgment processes such as request for the interpretation, rectification, or supplementation of judgment on legal issues that the court may have omitted to address. Also, that the suspended State, in fulfilling its ongoing obligation to protect the human rights of its population, may have limited capacity to initiate proceedings before the court for the diplomatic protection of its citizens who have suffered gross violations of human rights perpetrated by a member State or other entities subject to the court’s jurisdiction.
It is however unclear why the court failed to attach any importance to the fact that it is the same Protocol that gives the ECOWAS Authority the power to suspend a member State that the Applicants accused the ECOWAS Authority of violating. This begs the question as to whether the court can rely on an unlawful decision taken by the ECOWAS Authority in purported enforcement of the Protocol against a State that is challenging the legality of the decision.
In any event, I believe the court would be laying down too broad a rule in that its decision seems to suggest that an unrecognised government, albeit de facto, cannot approach the court under any circumstances, not related to human rights. What if the entity is seeking to challenge the very fact of unrecognition on some other grounds? The court appears to belief that the only time a State could be suspended for undemocratic assumption of power is when there is a coup. Whereas, the Protocol has not limited undemocratic assumption of power to military takeovers, if only the ECOWAS Authority cares to be faithful to the spirit and letters of the Protocol.
The Capacity of the other Applicants
As stated above, Niger sued alongside one human person and six artificial entities. If the view of the court relating to Niger is curious, it is even more so its view on the other Applicants. As for the other Applicants, the court had to determine whether, prima facie, the substantive Application alleges any distinct legal injuries of the non-state Applicants to pass the test of prima facie admissibility within the meaning of articles 9(2) and 10(c). On this score, the court held that it was entitled to discountenance what it called the “generalized allegations of the sanctions affecting businesses and individuals in Niger” because “the non-state Applicants have not pleaded the exact nature and extent of the harm caused to each of them by the measures imposed on Niger, to distinguish their legal interest in this case from that of the First Applicant” that would meet the provisions of articles 9(2) and 10(a). Also, that “none of the reliefs sought in the Application, aims to redress any specific injuries that have been pleaded by, and are personal to, the individuals and entities suing alongside Niger in this case”. As a result, the court declared that none of the reliefs sought in the Application aims to redress any specific injuries that have been pleaded by, and are personal to, the individuals and entities suing alongside Niger in this case. Consequently, the court held that the Application is manifestly inadmissible in respect of the non-state Applicants within the meaning of articles 9(2) and 10(c) of the Protocol of the court.
It is not clear how this view conforms with the established view of the court in previous cases. In Registered Trustees of Faculty of Peace Organisation v Federal Republic of Nigeria. Application No: ECW/CCJ/APP/30/21 Judgment No: ECW/CCJ/JUD/06/22, for instance, the court stated that the real issue was around the capacity of the 1st applicant, an artificial person to bring human rights claims before the court. Drawing from its earlier decisions on the point, the court decided that the 1st applicant lacked the capacity to bring a claim before the court, except if the claim was brought in a representative capacity for the violation of the human rights of human persons, which the court found not to be the issue in that case. The court’s finding was based its view that the 1st Applicant was a direct beneficiary of the remedies sought from the court. As a result, the court struck out its name and proceeded with the other Applicants who were natural persons and had no impediment to their capacity to litigate human rights violation cases before the court. The court was clear in its view that:
“As indicted in paragraphs 29 and 30 (supra), the first Applicant is a legal person suing on their own behalf and claiming relief for themselves for the sum of $500,000 as compensation “for general damages and/or exemplary damages for the unlawful denial of the rights to association and assembly of the Applicants”…. The principle of representative action in human rights violation envisages that an action instituted on behalf of another does not confer any benefit to the representative applicant from the relief granted under these circumstances. The relief sought above is to compensate all the Applicants which includes the first. Clearly the first Applicant has not demonstrated a representative capacity in the instant application…. [T]he first Applicant not being an individual but a legal person and not falling within the established exceptions, nor suing in a representative capacity is not a proper party to file an action for the violation of their right to association and to assembly. The application of the first Applicant in this regard is declared inadmissible and is therefore hereby struck out”.
The court appears to be saying something different to the NGOs that sued alongside Niger by requiring them to show that the reliefs sought in the application aim to redress any specific injuries that have been pleaded by, and are personal to, the entities. Thus, contrary to its jurisprudence, the court did not hear them because they have not shown any special interest. The issue of representative capacity was not discussed by the court.
Surprisingly, the court took a similar view concerning the 2nd Applicant, who was an individual.
It appears to us from the pleadings that what the 2nd to 8th Applicants were concerned about were the effects of the sanctions on the civilian populations: the inability of Niger to pay salaries to State employees on time due the sanctions and the consequential dire socioeconomic situation for the vulnerable civilian population, etc. The court demonstrated that it understood this, though it downplayed the situation by stating that the Applicants have invoked the alleged human suffering of the civilian population of Niger. The court however refused to reckon with the human suffering because, according to it, “the alleged humanitarian crises are attributable to the junta’s own illegal actions, which it is perpetuating”. The court then went on to say that “different considerations might apply if the junta had agreed to a roadmap with ECOWAS for transitioning to constitutional and democratic order, and the reliefs sought in the present Application were in furtherance of restoring such constitutional rule or protecting the civilian population against human rights violations in which it was not complicit”.
It is clear from the judgment that the political view taken by the court that the junta did not agree to a roadmap was not part of the evidence before it. This may then mean that the court decided to take judicial notice of that fact. If that is correct, such a statement betrays the judicial character of the court and the impartiality expected of it, even if we were to agree that such was a fact susceptible to judicial notice. It is even more disturbing that the court sought to minimise the suffering of the people of Niger by its choice of “alleged suffering”. It is difficult not to criticise the court for its seeming denial of the suffering the sanctions are capable of inflicting, and did inflict, on a population that already was suffering from serious poverty and insecurity before the sanctions kicked in. If there was anything the court was entitled to take judicial notice of, it was the suffering of the people and not the non-agreement to a roadmap.
It is not pleasant to note that the court ignored the fact that the closure of land and air borders is depriving the Nigerien citizens of the freedom of movement and trade guaranteed to all Community citizens by ECOWAS legal instruments. Could the court not have given appropriate weight to the fact that, perhaps, the unintended effects of the sanctions are exacerbated by the geographical disadvantage of Niger? In fact, the Applicants informed the court that being a landlocked country, the sanctions denied Niger the use seaports of neighbouring member States for shipment of essential goods into the State. Also, that the sudden cut of electricity supply by Nigeria, as part of the sanctions, has deprived hospitals of electricity and is precariously impacting the living conditions of the population. Would it not have been safer for the court, as a court of justice and human rights, to act on the fact presented before it that these measures, together with an embargo on basic necessities, such as food, pharmaceutical products and medical equipment are having an extremely damaging impact on ability of the people of Niger to access healthcare? These far-reaching consequences for Niger, its citizens, and its business community, were facts that were not disputed and facts of which the courts could even have taken judicial notice.
If these were the situation of things in Niger, as they really were and still are, could it have been correct for the court to hold that all the other Applicants had no interest in the subject matter of the suit. Or that the corporate entities, even if they were incapable of having personal interest in the matter, the people of Niger whose cases they put forward did not have sufficient interest?
What the law requires, and the court has always affirmed, is sufficient interest as against a mere interest. In Gnassingbe Kpatcha v. Republic of Togo, ECW/CCJ/APP/15/14, ECW/CCJ/JUD/08/15, for instance, the court stated that “a mere interest in a problem, no matter how qualified an individual or group is in the evaluation of the problem, it is not of itself sufficient for the Community Court of Justice to render such an individual or group adversely affected or aggrieved for the purpose of giving it standing to obtain judicial decision.” It has never been the case in law that an interest is vitiated or tainted by the mere fact that it is commonly shared by a party that lacks capacity to bring a claim. This is a very novel innovation of the ECOWAS Court.
It is of very little comfort that the court sought to ameliorate its harsh view by seeking to preserve access to it by Nigeriens in human rights cases against Niger. And it begs the question to say that the sanctions against Niger are not affecting human rights, especially those that are potentially unlawful. Having shut the State out at the preliminary stage, how has the court determined that the human rights of the nationals are not being violated by, for instance, the opportunistic decision of the ECOWAS Authority to cut electricity supply to Niger? It is, in our view, no excuse to say that because the situation was a reaction to the coup, the de facto government lacks the right to complain. Should the court shut its eyes to any and every consequential suffering of the people, on that basis, on whose behalf (benefit) is ECOWAS acting against the junta, then, if it does not matter whether the people live or die? This is thus a court that is determined to support the decisions of an arrogant ECOWAS Authority to reverse the gains of ECOWAS of people in favour of a state-centric ECOWAS. I am sure the court is aware of the international outcry that followed Israeli’s denial of power to Gaza, following the October 7, Hamas attack against Israel. If such was an acceptable response to provocation, it could have been said that Israel was entitled to do that. The world rose up to condemn it because it was inhuman, yet our human rights court described the suffering arising therefrom as “alleged”.
Even if the position taken on Niger was tenable, the court had the option of striking out Niger from the case and continuing with the other Applicants.
The Legality of the Sanctions
The main issue brought before the court by the Applicants was to request the court to declare that the decisions of the ECOWAS Authority to impose sanctions on Niger are manifestly irregular, illegal, and unjustified. The Applicants disputed the legality of some of the sanctions imposed on Niger by ECOWAS. They specifically argued that the closure of land and air borders violate the freedom of movement of persons and goods under article 59 of the ECOWAS Revised Treaty. Also, that it violates article 45 of the Protocol on Democracy and Good Governance, since such are not among the sanctions that may be imposed for unconstitutional changes of government. They also argued that the drastic and unprecedented sanctions (especially the embargo on essential foodstuffs and pharmaceutical products violate Regulation MSC/REG.1/08 relating to the ECOWAS Conflict Prevention Framework 2008, the objective of which is to eliminate pervasive threats to people’s rights, livelihoods, and safety. They further argued that the financial sanctions taken against Niger are only applicable in the event of a breach by a member State of its obligations towards the Community and do not apply in the event of a breach of the democratic order and so does not fall within the proper interpretation of article 77 of the ECOWAS Revised Treaty. They also questioned the validity of the immediacy of the sanctions, arguing that this violated article 9(6) of the ECOWAS Revised Treaty, under which sanctions imposed on member States are “automatically enforceable sixty days (60) after the date of their publication in the Official Journal of the Community”. Furthermore, they argued that the decision of the ECOWAS Authority to authorize a military intervention to restore deposed President, Mohamed Bazoum, as illegal as it violates Article 46 of the Protocol on Democracy and Good Governance, Article 1 of the ECOWAS Protocol on Non-Aggression 1978 (as amended), and articles 53 and 59 of the Revised Treaty deal with free movement.
For the avoidance of doubt, article 45 of the ECOWAS Supplementary Protocol on Democracy and Good Governance (A/SP1/12/01) permits ECOWAS to impose sanctions on a member State if democracy is abruptly ended by any means or where there is massive violation of Human Rights in the Member State. The ECOWAS Authority is saddled with the power to impose in increasing order of severity the following sanctions: (a) refusal to support the candidates presented by the Member State concerned for elective posts in international organisations; (b) refusal to organise ECOWAS meetings in the Member State concerned; (c) suspension of the Member State concerned from all ECOWAS decision making bodies.
As far as we can see, the article leaves no room for sanctions not specified therein. It is even also clear from the language that the article did contemplate a situation where all the sanctions contained therein are not imposed. This is perhaps, in recognition of the community nature of the States comprising ECOWAS, as very harsh measures, such as were imposed on Niger are also injurious to the Bloc, as an institution, and to its citizens both within and in other member States, especially those bordering Niger. Also, contrary to the view taken by the court in support of the action of the ECOWAS Authority, no ECOWAS law permits the suspension of a member State from ECOWAS. What the law, as clearly stated in article 45, permits, is suspension from all decision-making bodies of ECOWAS. How that translates to suspension from access to the ECOWAS Court remains to be demonstrated. The decision could even be said to have potentially contravened article 7(3) of the Revised Treaty by rendering that provision nugatory in that it potentially makes it impossible for the Authority to refer a member State, such as Niger, that is in violation of its obligations, to the court as required by the article, once suspended.
Provisional Measures versus Jurisdiction over the Substantive Case
We earlier mentioned that the provisions relevant to the indication of provisional measures by the court are article 21 of its Protocol and article 79 of its Rules. Article 21 states “the Court, each time a case is brought before it, may order any provisional measures or issue any provisional instructions which it may consider necessary or desirable.” Article 79 of the rules of court provides that “An application under article 20 [now 21] of the Protocol shall state the subject-matter of the proceedings, the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measures applied for” and that the application shall be made in accordance with the provisions of articles 32 and 33 of the Rules of the court. We also mentioned that the court has so far developed the following conditions: (a) the court is competent prima facie to adjudicate on the substantive case or if it is not manifestly incompetent to adjudicate on the substantive applications filed; (b) the substantive application is prima facie admissible or if it is not manifestly inadmissible; and (c) there is urgency in regard to the circumstances of fact and law invoked in support of the application for interim measures.
The practice of the court shows that it considers that the first two requirements must be cumulatively satisfied and that it is only after those are satisfied that the court may consider the merits of the request for provisional measures, guided by whether “there is urgency in regard to the circumstances of fact and law invoked in support of the application for interim measures.” The court relied on its previous decisions in Godswill Mrakpor v Authority of Heads of State and Government [2011] CCJELR 75, para 17) and Hissein Habre v Republic of Senegal [2013] CCJELR 287, 300 (paras 34-35).
This is not the place to speculate on whether the court synthesised these conditions from the governing provisions above or whether it obtained them from elsewhere. Such discussion is outside the purview of this review. It suffices to just doubt whether the requirement that the court must definitely establish its jurisdiction over the substantive case at the point of preliminary measures does not betray the preliminary character of the request. If we draw from the practice of the ICJ on provisional measures, we will find that the court needs not satisfy itself that it has jurisdiction on the merits of the case. The ICJ has repeatedly said that it “may indicate provisional measures only if the provisions relied on by the applicant appear, prima facie, to afford a basis on which its jurisdiction could be founded, but it need not satisfy itself in a definitive manner that it has jurisdiction as regards the merits of the case” (see Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation), Provisional Measures, Order of 16 March 2022, I.C.J. Reports 2022 (I), pp. 217-218, para. 24); and Application of the Convention on the Prevention and Punishment of the Crime of genocide in the Gaza Strip (South Africa v. Israel) Request for the Indication of Provisional Measures, 26 January 2024, para 15. This is because, at this stage, the court is not making any definitive findings on rights and entitlements, as the court is not entitled to make any comment on the merit at that stage. It is therefore possible for the court to subsequently decline jurisdiction over a case in which it had earlier granted interim measures. Nuclear Tests (Australia v. France), above, note 125, p. 272, para. 60; Nuclear Tests (New Zealand v. France), ICJ Rep 1974, 457, 477. The court will, however, not indicate interim measures unless the provisions invoked by the applicant appear prima facie to afford a basis upon which the jurisdiction of the court might be founded. Similarly, the court would have no legal basis, whatsoever, to indicate interim measures at the application of, or against, a State that obviously has no access to the court.
While we acknowledge and respect the fact that the ECOWAS court has power to set its own procedures, we would urge the court to reconsider its practice in future, especially as its current practice drags it into the merit of the case. We believe it was possible for court to have deferred the consideration of the request for provisional measures to the merit stage and order expedited hearing. That would have given it the opportunity to take a more robust view of the matter. It would still have been able to rule against some of the Applicants without alienating an entire population from the judicial system of the community.
Conclusion
As earlier mentioned, this case is greatly significant, not only for its potential contribution to the jurisprudence around ECOWAS’ legal texts, but also as a test of the court’s ability to reason independent of the political organs of ECOWAS in a manner that reflects the rule of law. This, no doubt, is in the league of the rare hard cases that give the court the opportunity to instil the rule of law in the governance of the Community. Human right cases, which form the bulk of the cases that come before the court, have a more individualist effect compared to a case of this nature that is of a constitutional interpretation nature and has a global effect on the governance of the Community. Unfortunately, the court has not decided this case in a manner expected of it as a court of law and justice.
Given that there were serious triable issues of law and legality raised in the application, our considered view is that the court would have been able to defer the plea for interim measures and jurisdiction for the merit. It is also our considered view that such would have given the court the opportunity to sieve the reliefs sought based on admissibility, rather than on capacity, at the merit stage of the case. There were serious issues of legality that were raised against ECOWAS, which the court should not have refused to rule on in the guise of capacity.
It cannot be stressed enough that the court needs to be conscious of the need for it to always strive for independence of thinking that would expand the frontiers of the rule of law within the Community and avoid the way municipal courts have allowed technical rules to become bulwark against justice.
This was not a proper case for the court to shut out a State at the preliminary stage of the proceedings. The court missed or rather denied itself the opportunity of playing a critical role in the promotion of reconciliation and the rule of law. The court should have assumed jurisdiction to determine the lawfulness of the sanctions – upholding those that fall within the ambit of the rule of law – a major plank of ECOWAS fundamental principles – striking down those, if any that are unlawful. The court would have used the opportunity to affirm that it does not accept the legality of the government of Niger with a deliberate language that would encourage the parties to re-engage. But these can only be done at the merit stage. Indeed, some of the determinations made by the court are too weighty to be made at the preliminary stage.
It is important to recognise that the court must be very careful not to be seen as supporting coups in the region, but the court must also show courage when the need arises – the courage to rule against any form of illegality, whether arising from a coup or from dictatorial decisions of any organ of ECOWAS. There is also the fear of political repercussions from the ECOWAS Authority that the court may want to be conscious of. Obviously, the reasoning and conclusions of the court in this matter, when situated within its precedents, offer fertile grounds to speculate that the court decided as it did for fear of political repercussions and not because its duty not to encourage coups within the region.
©Centre for Community & Oceanic Law , February, 2024
Pingback: ECOWAS court affirms its article 9(1)(g) jurisdiction against the Authority of Heads of State and Commission of ECOWAS at the suit of the individual Applicant, Mr. Zadi Philipe. - Center For Community Law