Amos O Enabulele
Introduction
The case of ECW/CCJ/JUD/11/26: the State of Cabo Verde v the ECOWAS Parliament evidences the first time in the history of the ECOWAS Community Court of Justice that a member State has filed an Application before the Court to assert a right conferred by Community Law. The other cases – ECW/CCJ/JUD/01/11: Mrakpor v. Authority of Heads of State and Government, ECOWAS and ECW/CCJ/RUL/05/23: Republic of Niger & Seven others & Ors v. The Authority of Heads of State and Government, ECOWAS & Ors – were brought in respect of matters arising from the political situation in the countries at the time.
Although this is not an interstate claim, and its manifest weirdness, notwithstanding, it is significant in many ways in that it does not only evidence that member States are now investing more confidence in the court but also affirms the important place of the Court in the entire integration project. Unfortunately, the State of Cabo Verde allowed the human rights jurisdiction of the court to colour and pervade its case that was purely a matter that fell outside of that jurisdiction thus denying the Court the opportunity to play its role as the judicial forum for the ventilate of Community rights and the consolidation of integration.
It is important to state at the outset that, in recognition of the fact that this case was brought before the adoption of the 2025 Supplementary Act, which abrogated the pre‑existing legal framework of the Court, this discussion shall be based on the 1991 Protocol of the Court as amended by the 2005 Supplementary Protocol, under which it was brought.
The facts of the case
In the case, the Applicant alleged a violation of its rights against discrimination and gross abuse of power by the interim President of the ECOWAS Parliament in the election of the key functionaries of the Parliament.
The basis for the claim was that, on 4 April 2024, during the inaugural session of the Parliament, there was gross abuse of parliamentary power and that the election of the interim president of the Parliament was contrary to the provisions of Additional (Supplementary) Act A/SA.1/12/16 and Rules of Procedure of the Parliament.
It argued that the election that brought in the President and the 1st-4th Vice Presidents was marred by irregularities and flagrant disobedience of the provisions of the Additional Act and the Rules of Procedure of the Parliament. This, according to the Applicant, is because the position of an interim president who conducted the election of the officers as presently constituted is unknown to the law, resulting in a grave violation of due process and democratic ethos championed by ECOWAS.
The Applicant was also aggrieved over the manner the offices were distributed. According to the Applicant, contrary to the established pattern of distribution of offices, the adopted method relegated the Lusophone bloc of the community to the background without any single portfolio by the interim President, contrary to the usual convention of the Parliament. It argued that this resulted in gross violation of the right of Dr. Orlando Pereira Dias, the parliamentarian representing the State of Cabo Verde and the entire Portuguese-speaking countries of the community.
Intriguingly, the State of Cabo Verde relied on Articles 3, 7 and 19 of the African Charter on Human and Peoples’ Rights, and Article 7 of the Universal Declaration of Human Rights to seek the Court’s intervention to redress what it called a gross abuse of power by the Parliament, which it said led to the violation of the human rights of Cabo Verde.
It therefore requested the Court, inter alia, to declare the election of 24 April 2024 null and void for violating the Additional Act and Rules of Procedure in force on the date of the election, for violation of human rights of the ECOWAS Members of Parliament from the Republic of Cabo Verde; to integrate its Head of Delegation, Mr Orlando Pereira Dias into the board of the ECOWAS Parliament as one of the Vice Presidents of that Body, in accordance with the Additional Act; to Order the ECOWAS Parliament to pay the Member of Parliament and Head of Delegation of Cabo Verde to the ECOWAS Parliament the sum of 10,350 USD (Ten Thousand Three Hundred and Fifty US Dollars) as compensation corresponding to the salary, from April 4th to August 4th at the rate of 2070 USD (Two Hundred and Seventy US Dollars/month that he stopped earning until that time of the filling of the lawsuit; and the sum of 150,000 USD (One Hundred and Fifty Thousand Dollars) as lawyer’s fee and other costs of the proceedings.
In its defence, the Respondent raised a preliminary objection to the jurisdiction on the ground, among others, that the action is not properly constituted; and that the Applicant lacks locus standi to initiate and maintain this action.
The Decision of the Court
The Court held that it has jurisdiction to hear the case since it alleges human rights violation. The Court was however of the firm view that the case failed to meet the threshold of admissibility. It held that the State of Cabo Verde was not a proper party in the Application, nor could it be represented by Orlando Pereira Dias – the 2nd Applicant – and that the purported representation of Cabo Verde – the 1st Applicant – by the 2nd Applicant did not cure the fundamental defect of lack of legal capacity.
Although the Court found the 2nd Applicant a proper party, it held that his claim must fail because the Parliament, as a CommunityInstitution, lacked the capacity to be designated as a Respondent in an action for the violation of human rights.
Discussion
To begin with, it is impossible not to note the perplexing manner in which this case was constituted or what the Court referred to as the “peculiar status of the Parties”.
The core difficulty in this case stems from the manner in which the matter was presented to the Court. Given the way the claim was framed, the Court was right to dispose of it as it did. A court of law cannot assume the role of formulating a case for a party who has failed to appreciate the proper legal basis of its own claim. That, regrettably, was the position in which Cabo Verde placed itself in this matter.
In the first place, and contrary to its earlier jurisprudence in ECW/CCJ/RUL/03/10: Peter David v. Ambassador Ralph Uwechue (paragraph 47), the Court has in recent years consolidated its position that Community institutions cannot be held liable for human rights violations. In ECW/CCJ/JUD/25/18: Khalifa Aboubakar v. ECOWAS Commission, the Court held that the ECOWAS Commission is not a proper respondent for African Charter-based claims, as it is not a contracting party to the treaty. The court maintained the view in ECW/CCJ/RUL/05/25: Prof. Nazifi Abdullah Darma v President of ECOWAS Commission, declaring that as the Respondent was an ECOWAS Institution and not a signatory to the African Charter, it cannot be held liable under a treaty to which it is not a contracting party. As a result, it declared all claims founded on alleged violations of the African Charter inadmissible. This line of authority has become increasingly consistent and leaves little room for argument to the contrary.
Even if it were to be agreed for the purpose of argument that a member State could, in principle, rely on Article 9(4) as a jurisdictional basis for bringing the action, there is no conceivable scope for a member State to invoke article 10(1)(d) of the Court’s Protocol. That provision is expressly and unequivocally limited to “Individuals on application for relief for violation of their human rights.” It does not confer standi on member States, nor can it be expanded by implication or formulation of the claim as a representative action.
The Parties
In the first place, although neither the title of the case nor the Court’s initial discussions indicates the presence of two Applicants, it appears that Cabo Verde’s Head of Delegation, Hon. MP Orlando Pereira Dias, was in fact the 2nd Applicant. It is difficult to understand why this was not reflected in the case heading, and why the Court consistently employed the singular term “Applicant” until the closing sections of the judgment.
One possible explanation is that the Court may have understood Hon. MP Orlando Pereira Dias to be acting in a representative capacity on behalf of the State of Cabo Verde. However, this interpretation seems doubtful. It does not appear from the arguments attributed to Cabo Verde in the judgment that Hon. MP Orlando Pereira Dias was acting in any representative capacity. In fact, the Court’s reproduction of the submissions indicates the contrary.It argued:
The Applicants refuted the above facts, arguing, in summary, that the Applicants in the proceedings brought are the State of Cabo Verde and the Member of the ECOWAS Parliament, Hon. MP Orlando Pereira Dias …[and] that the State of Cabo Verde is also a legitimate party in these proceedings, because the Parliament Members of the Republic of Cabo Verde in ECOWAS Parliament are representatives of the State of Cabo Verde in that Parliament and appointed by the State of Cabo Verde.
Rather than suggest a representative action, what the Applicants seem to have said here was that the two applicants were suing in their own rights.
Whatever view one takes of the representational confusion is ultimately immaterial, because the core problem is that the case was wrongly constituted from the outset. There was no legal or logical basis for the State of Cabo Verde and Hon. MP Orlando Pereira Dias to appear as co‑applicants. As the State of nationality of Hon. MP Orlando Pereira Dias, Cabo Verde had full competence to adopt and espouse his claim as its own. Had it done so, there would have been no need whatsoever for Hon. MP Orlando Pereira Dias to be joined as an applicant.
This conclusion is reinforced by the fact that the parliamentary seat in question did not belong to Hon. MP Orlando Pereira Dias personally. The seat belonged to the State of Cabo Verde, and Hon. MP Orlando Pereira Dias merely occupied it in a representative capacity. The proper claimant, therefore, was the State itself, not the individual who temporarily held the office.
The capacity of Cabo Verde to both adopt Hon. MP Orlando Pereira Dias case and espouse it as its own claim and to bring a direct claim for violation of its own right to be effectively represented in parliament engages two different jurisdictional bases in the Protocol of the Court. It is to these we shall now turn.
Jurisdictional Bases
Rather than articles 9(4) of the Court’s Protocol, the appropriate jurisdictional bases were article 9(1)(a), (b), (f) and (g). These provisions grant Cabo Verde the right to bring a case against the community or any of its institution for: (i) The interpretation and application of the Treaty, Conventions and Protocols of the Community; (ii) The interpretation and application of the regulations, directives, decisions and other subsidiary legal instruments adopted by ECOWAS; (iii) against the Community and its officials; and for (iv) action for damages against a Community institution or an official of the Community for any action or omission in the exercise of official functions.
From the pleadings before the Court, it is clear that the dispute related to the interpretation and application of the provisions of Additional Act A/SA.1/12/16 and Rules of Procedure of the Parliament. The dispute therefore engaged article 9(1)(a), (b), (f) and (g) of the Court’s Protocol. And as the case was against a Community Institution – the Parliament – the State of Cabo Verde was competent to invoke the jurisdiction of the Court for the ventilation of the dispute under article 10(b). This article clothes member States with the competence to being “proceeding for the determination of the legality of an action in relation to any community text”.
By virtue of these provisions, the State of Cabo Verde would have been well within its rights to ask the Court to determine whether the election that brought in the President of Parliament and the Vice Presidents was done in consonance with the provisions of the Additional Act and the Rules of Procedure of the Parliament.
In our considered view, the Court would certainly have assumed jurisdiction over the case and determine its merit had the State of Cabo Verde invoked the jurisdiction of under article 9(1)(a), (b), (f) and (g) of the Court’s Protocol and hinged its competence on article 10(b).
Interestingly, this point was not completely lost on the Applicants, hence they argued that as the MP’s are not elected directly by the people, unlike members of the European parliament, “the State of Caho Verde has a legitimate interest in initiating proceedings against the ECOWAS Parliament for alleged human rights violations against its representative, particularly where there is non-compliance with democratic rules”. This was a clear acknowledgement of the direct overall interest of Cabo Verde in the dispute.
The state of Cabo Verde would have been able to fully subsume the claims of Hon MP Orlando Pereira Dias, including the compensation sought under its own competence as its own claim.
If for the sake of argument, it felt it was yet necessary to add Hon. MP Orlando Pereira Dias as an applicant, the appropriate provisions to base his competence upon was not article 10(d) but article 10(c) of the Court’s Protocol. This article allows individuals and corporate bodies to bring proceedings for the determination of an act or inaction of a Community official that violates the rights of the individuals. See ECW/CCJ/JUD/05/25: Zadi Philipe v. The Authority of Heads of State and Government of ECOWAS & Anor
Conclusion
The case of the State of Cabo Verde v the ECOWAS Parliament is significant because it illustrates the recognition by ECOWAS member States of the Community Court as a mechanism for resolving disputes arising within the institutional framework of ECOWAS. The case demonstrates a growing recognition of the Court’s relevance in safeguarding Community legality and democratic governance.
Although it is not the first time a member State is bringing an Application before the Court, it is the first time such an application is brought to assert rights bestowed on a member State by the ECOWAS normative framework. The two other Applications brought by member States were not based on rights vested on the member States by Community law. Unfortunately, like the previous cases, the State of Cabo Verde v the ECOWAS Parliament, met a premature end without pronouncements on merits.
Importantly, State of Cabo Verde v the ECOWAS Parliament exposes the critical importance of proper legal characterisation and procedural framing before supranational courts. Cabo Verde’s claims were not inherently incapable of adjudication; rather, the application failed because it relied on inappropriate jurisdictional provisions and an incoherent party structure. By grounding the action primarily in human rights jurisdiction against a Community institution, the Applicants overlooked the more suitable Treaty-based and institutional jurisdictional avenues available under the Court’s Protocol.
Had the case been properly constituted as an action by a Member State challenging the legality of the conduct of a Community institution under Articles 9(1)(a), (b), (f) and (g), and 10(b) of the Court’s Protocol, the Court would likely have been in a position to engage fully with the substantive issues raised concerning parliamentary procedure, institutional legality, and equitable representation within ECOWAS.
Ultimately, the case serves both as an important milestone in the evolution of ECOWAS judicial practice and as a cautionary reminder that the court’s jurisdiction over a particular set of grievances, no matter how well established, may yet be truncated by inadmissibility arising from the manner the claim was presented and the choice of parties.
Amos O Enabulele is a professor of Public International Law and Executive Director, Centre for Community Law
.