By Bassey Udo
The quest for integration in the Economic Community of West African States (ECOWAS) will be impossible without the enforcement of Community’s Court judgments, the National Council of Human Rights (NCHR) has said.
A trainer in Human Rights, National Council of Human Rights (NCHR), Côte d ‘Ivoire, Hassane Diane, stated this in a a paper he delivered at the International Conference of ECOWAS Court of Justice in Praia, Cape Verde.
The theme of the conference was “ECOWAS Integration Model: The Legal Implications of Regionalism, Sovereignty and Supra-nationalism”.
Diane lamented the high rate of non-enforcement of the ECOWAS Court’s judgments by member states, noting that this constituted a serious violation of its treaty obligations.
He, however, advocated dialogue and cooperation between the regional court and national courts to resolve any form of disagreement.
“The enforcement of court decisions is a performance indicator for any judicial system. It is a criterion for assessing the effectiveness of the system, both within a state and within a regional grouping.
“This is the case of ECOWAS member states which, without questioning, the jurisdiction of the Community Court of Justice, are reluctant to diligently execute its decisions.
“Thus, as of September 30, 2020, at least 77 judgments delivered by the Court remained unenforced, the majority of which concern the Federal Republic of Nigeria where the Court is seated.
“The enforcement of decisions of regional courts is an acute challenge in all regional integration processes,” he said.
One solution to this problem, he said, was dialogue, which he said, must necessarily exist between the regional courts and the national courts.
The mechanism for dialogue and close cooperation between national courts and the ECOWAS Court exists in Article 10(f) of the 19 January 2005 Supplementary Protocol, through the preliminary ruling procedure.
The dialogue, he said, would not only strengthen the authority of the Community Court in the West African regional integration process, but also ensure the involvement of the national courts in the process.
Besides, Diane said regional integration would not be successful without the national authorities in the member states playing their part as local relays for the Community institutions and the implementation of their decisions.
He said it must be admitted that no real integration policy was possible without the primacy of Community law and a certain degree of supranationalism, as it was clear regional courts were essential to the success of regional integration processes, since they were the institutions that regulate relations within community spaces.
To be effective and efficient for integration, Diane said it was necessary to address the challenges regional courts face, which could otherwise constitute major obstacles to true regional integration.
Participants at the conference organised by the Community Court of Justice to examine the ECOWAS model of integration also urged the Community to establish a mechanism for monitoring the implementation of Community Laws and strengthen its regulatory functions and commonality, to achieve the higher degree of supranationalism necessary for the full integration of the region.
At the end of the four-daybconference, recommendations were made on the need to establish a monitoring and evaluation mechanism for the continuous appraisal of the preparedness of each Member State towards set targets, with a view to assisting those not committed, or making good progress to meet their targets.
Participants challenged Member States and ECOWAS to create the opportunity for the region’s citizens to play a greater role in the integration process, by ensuring political stability and creating the legal environment conducive for the implementation of economic integration policies.
They called for the review of the current legal regime in the Community to ensure the direct applicability of Community Texts in Member States, while Community citizens should be empowered to invoke Community Laws before national courts.
The participants consisted mainly academics, jurists, lawyers, Chief Justices of Member States, representatives of national Bar Associations and ECOWAS national offices.
They urged Member States to establish a peer review mechanism similar to that of the African Union, to monitor compliance of Member States with their Community obligations.
Also, they stressed the need for Member States and the ECOWAS Commission to take steps to harmonise the legal and judicial systems of the Community in accordance with the extant provisions in the Revised Treaty, to promote synergy between the ECOWAS and national courts.
As part of the process, participants suggested that the national courts of the Member States should be encouraged to make referrals to the regional court on Community Law and cite the judgments of the Court in their jurisprudence. Despite the supranational features of the Community through successive Treaty instructions, participants said ECOWAS was still run on the intergovernmental model.
They recommended the strengthening of its supranational features, by enhancing the powers of the Commission, in addition to granting the Court’s jurisdiction to hear cases filed by individuals in respect of ECOWAS Laws.
In addition, they encouraged Member States, host communities and investors to explore the dispute resolution mechanism of the regional court in compliance with the ECOWAS Investment Code to enhance Foreign Direct Investments (FDIs) into the 15-member Community.
Again, participants urged Member States to ensure the smooth implementation of the regional Investment Policy and Codes as a single economic legal framework to promote, facilitate, protect and sustain cross border investment.
Member States were also urged to support the ECOWAS Business Council (EBC) in its desire to promote economic development and create jobs through capacity building of Small and Medium-scale Enterprises (SMEs) as well as implement the ECOWAS Common Investment Code, adopted in December 2018 at the 54th Ordinary session of the Authority of Heads of State and Government of ECOWAS while the policy as adopted during 56th ordinary session of the Authority in 21st December 2019.
In order to address the pervasive poor knowledge of the Court and its work in the region, the participants urged the Court to undertake regionwide advocacy in collaboration with Civil Society Organisations (CSO’s) and relevant stakeholders in Member States as well as make its Protocols, Law Reports and Rules of Procedure to national judiciaries and bar associations.
Additionally, they urged the Court to engage municipal judges of Member States through regular judicial dialogue as well as encourage frequent interaction between the Bar Associations of Member States and the Academia for information and experience sharing on how to ensure the integration of Community Laws into the domestic legal system.
In order to deepen the involvement of citizens in the integration process, they called for wider participation in such conferences and the creation of breakout sessions for students, women groups and civil society. Member States were also encouraged to include Community education; objectives, goals and norms of ECOWAS at all levels of schools’ curriculum to create a sense of Community identity while the Universities should also include Community studies and Community law in their curriculum.
Moreover, the Court was urged to sustain its training programmes for lawyers, judges and the academia in the Member States while the remaining nine Member States that are yet to appoint their competent national authorities for the enforcement of the judgments of the Court were advised to do so without further delay.
The participants expressed concern at the reduction in the size and tenure of the judges of the Court because of its negative impact on its effectiveness and requested Heads of State and Government of the Community to restore the composition and tenure of the judges in line with the provision of its 1991 Protocol by increasing their number to seven from the present five and their tenures from four years non renewable to five years renewable for another term of five years.
Among the other recommendations were that Member States should domesticate the Revised Treaty and Protocols on the Court and enact implementing legislation to facilitate the enforcement of judgments of the Court by national courts.
They also urged the Community to establish a mechanism for the effective implementation of the Protocol on Free Movement to ease the mobility of Community citizens and remove all barriers and obstacles. In addition, Member States should ensure compliance with the provisions of the Protocol on Free Movement and play their coordinating role including implementing the provisions regarding the right of residence and establishment, while ensuring the removal of all discriminatory practices.
Moreover, they urged the States to recognize the ECOWAS National Biometric Identity Card (ENBIC) as a travel document in accordance with the Protocol, and integrate into the ENBIC regime, to facilitate the unfettered mobility of ECOWAS Citizens, and enhance the security architecture of the Community.
Member States yet to adopt the ENBIC were encouraged to do so as soon as possible.
To ease communication with immigration officials and aid the free movement of Community citizens between borders, participants urged Member States to train immigration officials on basic communication in the three Community languages, while undertaking advocacy and sensitization for Community citizens, Judges, critical stakeholders in ECOWAS Institutions and in Member States about the provisions of the ECOWAS Protocol on Free Movement and other key ECOWAS Community texts.
They urged the ECOWAS Commission to take necessary steps to trigger the sanctions mechanism in relation to Member States that fail to fulfil their Community obligations.
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