A former Chairman of the Governing Council of the National Human Rights Commission of Nigeria says the ongoing blockade of regional trade by Nigeria through the closure of its land borders could be an opportunity for the ‘affected States and organs of the region to fully take advantage of the judicial organ of the Community to test the legality of the measure.”

Delivering the keynote address at the ongoing international conference of the Community Court of Justice in Accra, Professor Chidi Odinkalu said such a recourse by the affected States and organs will enable the regional court determine the compliance of the decision with the country’s ‘Treaty obligations and its proportionality to any possible justification.’

He characterized the attitude of the affected States and organs as “an upshot of the overwhelming informalisation of economic integration in the Community,’ exemplified by the ‘reliance by States and citizens on diplomatic exchanges and good offices while diminishing the judicial and institutional organs of the Community,’ which explains why the Court has in the 18 years of its existence, not received any inter State case of any significance.

Professor Odinkalu, who is Senior Team Manager of the Open Society Justice Initiative said the timing of the conference coincided with a ‘time of multi-faceted crises for regional integration within and beyond the region, notably Nigeria’s joint border security exercise under which the country imposed a blockade of its land border.

“This closure appears to have been one with little regard for the niceties of the obligations of Nigeria under regional integration regimes of ECOWAS, in particular the flagship Protocol on Free Movement of Persons with neither Nigeria nor regional institutions in a haste to bring this measure into compliance with the laws and procedures of ECOWAS.

Whether borne out of the fear of Nigeria or a consideration of the irrelevance of the laws and institutions of the Community, he said the action was not ‘a great advertisement for the project of regional integration in which mass expulsion of Community nationals still take place.’

He also identified other challenges to include ‘coming pressure from accusations of profound democratic deficit and democratic legitimacy,’ illustrated by Morocco’s application for membership which will bifurcate the legal regimes of the Community and result in a two-track ECOWAS in which some members will subscribe to some but not all of the Community standard with the risk of imperiling the Community.

“Consideration could also be given to involving the judicial organ of the Community in decisions on membership by getting the Court to verify whether in fact putative members fulfill the threshold criteria and values for membership of the Community,’ he added.

Professor Odinkalu, who was the Guest Speaker at the conference, described the experience of regional integration in West Africa as mixed with considerable dissonance between the institutions on one hand and sovereign support for integration on the other.

Citing a 2013 study by Karen Alter, Laurence Helfer and Jacqueline McAllister, the guest speaker said that ‘by all accounts, ECOWAS has made little progress towards its professed goal as trade flows among West African nations remain extremely low; tariffs, customs regulations, non-tariff barriers and road blocks hinder cross border trade,’ compounded by a lack of diversity in regional trade and the poor infrastructure.

This, he said, explains why colonial metropoles remain among the biggest trading partners of the countries of the region.

Concluding, he said that ‘the challenge in the near term is to close the gap between the promise of economic integration and the lived experiences of the region’s peoples  and progress in this project will be marked at least in part by how much governments and citizens of the Community not only feel free to utilize the Court of Justice as an aid in protecting and enforcing the legal obligations of the Community but also in how they collaborate in building habits of compliance with these obligations.’

The 2019 international conference is being held on the theme Economic Integration of West Africa: Challenges and Prospects.”