ECOWAS COURT DECLINES TO GRANT REQUEST FOR INTERIM MEASURES IN SUIT BROUGHT BY NIGER AGAINST THE ECOWAS AUTHORITY OF HEADS OF STATE AND GOVERNMENT

The ECOWAS Court of Justice has, on 7th December 2023, dismissed a request by the Republic of Niger for the Court to suspend sanctions imposed by the ECOWAS Authority of Heads of State and Government on Niger. 

The request for interim measures is part of a broader case brought by the Republic of Niger and 7 other Applicants challenging the legality of sanctions imposed by ECOWAS following a military coup in the West African country in July 2023 that overthrew the government of President Mohammed Bazoum.

In the ruling delivered by Justice Edward Amoako Asante, the Court acknowledged that it has jurisdiction over the substantive application. However, the Court ruled that it could not grant the request for interim measures since the additional requirement for the case to be prima facie admissible had not been met.

The Court explained that the Republic of Niger, as currently controlled by the military junta, lacked capacity before the Court, making the substantive application prima facie inadmissible. The substantive application was also held to be prima facie inadmissible in respect of the rest of the Applicants within the meaning of Articles 9(2) and 10(c) of the Protocol of the Court.

At the hearing held on 21 November, 2023 the Applicants represented by their lawyers Mr Moukaila Yaye and five others argued that the sanctions imposed by the Authority of Heads of State and Government of ECOWAS have had adverse effect on the Nigerien people including shortage of food, medicine and electricity, due to the closure of borders and suspension of electricity supply by Nigeria. They asked the Court for interim orders that will compel the Authority of Heads of State and Government to immediately suspend the sanctions.

They said that ECOWAS overreacted by imposing the sanctions and that Niger was unequally and unfairly treated compared to three other ECOWAS member states (Mali, Burkina Faso and Guinea) that have experienced coup d’états in recent years.

Mr François Kanga-Penond who represented the ECOWAS Authority and other respondents in the case told the Court that the Republic of Niger is currently controlled by a military junta which seized power unconstitutionally in violation of ECOWAS legal instruments. He argued that such an unconstitutional government which had been denounced by ECOWAS and the international community could not be legally deemed to represent the country, both the substantive application and request for provisional measures were inadmissible. He therefore urged the Court to decline the request for interim measures.

In the substantive application, the Applicants -the Republic of Niger, six Nigerien organisations and a Nigerien national –asked the Court to declare illegal the measures taken by the ECOWAS Authority of Heads of State and Government of ECOWAS during its extraordinary sessions of 30 July and 10 August 2023, to restore constitutional order in the Republic of Niger. They requested the Court to nullify all decisions of these ECOWAS organs imposing sanctions, including the decision to resort to military intervention in the Republic of Niger.

In its ruling, the Court held the view that an entity resulting from an unconstitutional change of government, and not acknowledged by ECOWAS as a government of a member state, inherently lacks the capacity to initiate a case before the court with the aim of obtaining benefits or reprieve.

Consequently, the substantive suit and the request for interim measures presented in the name of Niger, by an unconstitutional and unrecognized governmental authority, were prima facie inadmissible.

Concerning the seven non-state Applicants suing alongside the Republic of Niger, the Court held that they failed to provide specific details regarding the nature and extent of the harm suffered by each of them from the measures imposed on Niger. This lack of specificity made it challenging to differentiate their legal interests in this case from those of the Republic of Niger. Given these circumstances, the Court concluded that the Application was prima facie inadmissible relative to the non-state Applicants as per the provisions of Articles 9(2) and 10(c) of the Protocol of the Court.

Having concluded that the substantive application before the Court was prima facie inadmissible, the Court held that the request for interim measures could not be granted. It accordingly dismissed it.

The panel of judges who delivered the ruling were Justice Edward Amoako Asante, President of the Court and judge rapporteur for the case, and Honourable Justices Gbéri-bè Ouattara and Dupe Atoki.