The ECOWAS Court of Justice dismissed as ‘ill founded,” an application by the leader of the Togo’s main opposition party, Jean-Pierre Fabre,  alleging the violation of several of his rights during the country’s February 2020 presidential election which conferred an unfair advantage on the incumbent President.

Delivering judgment of the Court in the suit brought by Mr. Fabre, the leader of the Alliance Nationale pour le Changement (ANC), Justice Gberi-Be Ouattara said the applicant had not proved any of the three allegations- the violation of his right to equality as a citizen; non-discrimination and right to fair trial. It therefore dismissed the suit and ordered the applicant to bear the costs.

Mr. Fabre, president of the Togo’s ANC had alleged that these three rights were violated by the country’s National Assembly and Constitutional Court after both institutions approved a revision of the law abolishing presidential term limits.

In documents filed before the Court, the applicant narrated how the Togolese citizens voted in October 1992 for a new constitution which limited presidential terms to two in order to promote democracy and the rule of law, adding that through a constitutional revision law enacted in December 2002, the National Assembly abolished this provision putting a cap on presidential terms.

According to the documents, following political agitations and civil disturbances in August 2006, an agreement known as the Global Political Accord (APG), was signed between political and civil society stakeholders which recommended the reintroduction of presidential mandates limits.

However, the Applicant claimed that the Togolese authorities did not implement this recommendation, leading to new major demonstrations in August 2017 after which the  53rd Conference of Heads of State and Government of ECOWAS took up the matter and requested the modification of articles of the Togolese constitution in order to implement the limitation of the presidential mandate.

In the process, Fabre contended that the Togolese authorities violated the dispositions regulating a constitutional revision, in particular article 144 which provides that the revision could only be initiated by the President of the Republic and at least one-fifth of the Members of Parliament. He also alleged that the National Assembly instead inserted favorable dispositions to Faure Gnassingbe, the incumbent president, in particular by adding a clause canceling the mandates already served.

In addition, the Applicant stated that he submitted two unsuccessful applications before the Constitutional Court, the first of which was declared inadmissible on grounds of eligibility  although a candidate in the election in the election which should have automatically qualified him for the action. He added that the second suit before the court was struck out by the Court which ruled that Decision No EP-002/20 of January 27, 2020, confirming the candidacy of the incumbent president was indisputable.

The Applicant alleged that the various refusals by the Constitutional Court amounted to denial of justice because it had abdicated its mission as the institution responsible for settling disputes over the candidatures of the presidential election. The Applicant considered that the Constitutional Court violated the principle of equality of citizens by refusing to hear the merits of his case.

Fabre submitted that he was a victim of discrimination in favor of the incumbent president by the National Assembly because the new adopted articles gave an unfair advantage to the incumbent president.

He therefore sought for a declaration of the Court acknowledging that his rights were violated by the Constitutional Court and the National Assembly and an order of the Court for the  organization of new presidential elections in accordance with international human rights instruments and the Togolese Constitution.

In its response, the Togolese government said it had engaged with the stakeholders to douse political tensions and also undertaken institutional and constitutional reforms with the support and involvement of international organizations and other countries.

Unfortunately, the Respondent added, some of the reforms have been delayed by some members of the country’s political class who have been blocking the reforms. The respondent also contended that none of the qualified persons seized the Constitutional Court on issues related to the new constitution during the process preceding the conduct of the presidential election of February 22, 2020.

The Respondent further stated that having seen his applications dismissed by the Constitutional Court, Mr. Fabre seized the ECOWAS Court of Justice to rule on the decisions already decided by a national court.  It further argued that Mr. Fabre’s request was related to the country’s electoral system and the principle of constitutionality of acts taken by Togolese institutions, matters outside the jurisdiction of the Court and prayed the Court to declare itself incompetent and the application inadmissible.

The three member panel of the court on the case include Justices Edward Amoako Asante and Ricardo Cláudio Monteiro Gonçalves.