Political surveillance and judicial sanctions, panacea to low enforcement of judgments of ECOWAS Court- LAW LECTURER

A law lecturer in a university in Ghana says ECOWAS Member States should consider the adoption of a mix of judicial sanctions and political “naming and shaming”  as a panacea to improve the low level of enforcement of the decisions of the regional court so that the court can effectively play its role in the West African integration project.

Delivering a paper at the 2022 international conference of the Court in Praia, Cabo Verde, Mr. Christopher  Yaw Nyinevi said that with only about 30 per cent of its decisions enforced, there was a demonstrated lack of political will by Member States of the 15-member Community to enforce decisions of the 20 year old Court despite the provisions of Article 24 of its Protocol on the method of enforcement.

Mr. Nyinevi, who lectures at the Kwame Nkrumah University of Science and Technology in Kumasi lamented that despite this provision, which requires the Registrar of the Court to issue a writ of execution to the concerned Member State for execution under its rule of civil procedure, only six Member States have designated the competent national authority required to receive and process such judgments for execution.

In the paper which was on “Regional Integration and protection of human rights: an examination of the human rights mandate of the ECOWAS Court of Justice”,  Mr. Nyinevi told participants at the four-day conference that by this action, the Member States that have not appointed such an authority have simply extended to the ECOWAS Court their attitude to their own domestic courts.

Mr. Nyinevi also contended that some Member states are using the alibi of non-domestication of the Court’s Protocol to oppose the execution of judgments of the ECOWAS Court.  

Lastly, the presenter cited the principle of non-exhaustion of local remedies as a pre-condition to seizing the ECOWAS Court in human rights cases as a probable reason for non-execution of its judgment.

International human rights jurisdiction rests on the twin principles of subsidiarity and complementarity. What this means is that the jurisdiction of an international human rights body is designed and intended to complement the role of domestic courts in enforcing human rights rather than to supplant them.”, he said. 

He argued that a state against whom a charge of human rights violation is laid must be afforded the opportunity to redress it before it is hauled before an international court, adding that feeling bypassed by their own citizens, Member States may decide to ignore decisions of the Court.

Consequently, he suggested a combination of two generally independent measures mainly a penalty for repeated infringements similar to that of the EU court under which the Commission is empowered to bring action against a member for failure to comply with a judgment of the European Court of Justice.

Secondly,  he called for the introduction of a political surveillance mechanism on compliance with the decisions of the ECOWAS Court’s decisions citing the Protocol of the African Court, which requires the Court to communicate its judgments to the Council of Ministers of the African Union (AU) who ‘shall monitor its execution’ on behalf of the AU Assembly. 

Moreover, he noted that in the annual reports of the Court  to the AU Assembly, which has the power to impose sanctions on non-compliance States,  the African Court is also required to report states that have not complied with the Court’s judgments.

Mr. Nyinevi suggested that, for greater effect, the political surveillance be deployed together with the judicial sanctions.  

He also urged the Court to take a second look at its jurisprudence on unrestricted access to the Court in order to accommodate the exhaustion of local remedies.

He noted that the enthusiasm of the Court to achieve high standards was understandable as the performance and effectiveness of international courts are considered to be a function of “the compliance rates of their decisions, their usage rates, as well as their overall success or lack thereof”. 

But he argued that while there is a school of thought that believe that the impact of a court is felt through the rate of compliance with its decisions by governments, there was another school that believes that  international courts are effective if they can achieve a change in the behavior of Member States.  

However,  he urged the Court not to “ not to measure its success mainly by the number of cases decided and judgments delivered,” as such an  “approach comes with the risks of an unsustainable caseload and tensions between national judicial and political authorities who may view the Court unfavourably for trying to supplant national jurisdiction”.

Some 150 participants, mainly academics, jurists, lawyers, representatives of Member States and international partners attended the hybrid conference which was held on the theme ECOWAS integration model: the legal implications of Regionalism, Sovereignty and Supranationalism.