THE ECOWAS COURT AS A HUMAN RIGHTS PROMOTER? ASSESSING FIVE YEARS’ IMPACT OF THE KORAOU SLAVERY JUDGMENT Horace S. Adjolohoun* Abstract Th e 2005 reform initiated by the Economic Community of West African States (ECOWAS) had the double eff ect of putting an end to ten years of judicial lethargy and positioning its Community Court of Justice (ECCJ) as a promising international human rights body. One of the most illustrative cases of the Court’s impact is the landmark Koraou (Slavery) judgment in which the ECCJ condemned Niger for failing to protect the complainant from enslavement by a third party. Five years aft er the Koraou decision, this paper uses empirical based theories, case study and factual evidence to interrogate whether the ECCJ’s judgment has had any further eff ect than just restoring the dignity of an individual litigant. Such assessment is important to thousands of other human beings who still live in bondage in the rest of the region. Ultimately, the paper seeks to demonstrate that although it has not reached the irradiating model of the European Court of Human Rights, the ECCJ has the potential of becoming a human rights promoter in the region and beyond. 1. INTRODUCTION In 2004, when the ECOWAS1 Community Court of Justice (ECCJ) heard its fi rst ever individual case, Afolabi v Nigeria,2 many were sceptical about its success as a human * BA, Licence (Université d’Abomey-Calavi & Usam, Benin), LLM (Pretoria), Doctoral Candidate, Centre for Human Rights, University of Pretoria, South Africa. [email protected]. I would like to thank Professor Erika de Wet, Professor Frans Viljoen and Dr Magnus Killander for their invaluable comments on earlier draft s of this article. All shortcomings remain my own. 1 Th e Economic Community of West African States (ECOWAS) was created in 1975 by a treaty signed between 15 States of the region with the initial aim of realising collective self-suffi ciency through economic integration. See Treaty of the Economic Community of West African States (adopted 28 May 1975). In 1993, ECOWAS adopted a Revised Treaty. See Revised Treaty of the Economic Community of West African States (ECOWAS) (adopted 24 July 1993, entered into force 23 August 1995) REFWORLD Vol 2372 I-42835. 2 See Olajide Afolabi v Nigeria (2004) ECW/CCJ/JUD/01/04 in which the Court threw out the case for lack of jurisdiction as the 1991 Court Protocol allowed the Community Court to entertain Netherlands Quarterly of Human Rights, Vol. 31/3, 342–371, 2013. 342 © Netherlands Institute of Human Rights (SIM), Printed in the Netherlands. Th e ECOWAS Court as a Human Rights Promoter? rights protector in West Africa let alone a human rights promoter in the rest of the continent. In fact, the Court had existed on paper for more than a decade,3 its fi rst bench of judges had waited idle for three years,4 and it could not entertain individual human rights complaints other than through Member States. Th e 2005 Supplementary Court Protocol5 literally brought the regional tribunal from the shadows of hypothetical inter-states human rights litigation into the light of promising international human rights adjudication. Articles 9 and 10 of the Protocol empowered the Court to hear individual human rights cases. Th e same year it received such powers, the ECCJ set the scene in Ugokwe v Nigeria6 by anchoring its material jurisdiction in the African Charter on Human and Peoples’ Rights (African Charter), which the Community had chosen as its compass for realising regional integration.7 As a fully-fl edged human rights body, the ECCJ raised much hope in the region and was eulogised in evocative terms.8 In fact, the Court came as a directly accessible judicial forum in an African human rights system with a long operating quasi-judicial African Commission9 and an access-limited nascent African individual complaints only through the States of which the complainants are nationals. 3 Initially envisaged as the Tribunal of the Community under the 1975 Treaty, the Court, in its current form, was created by Protocol A/P1/7/91 Relating to the ECOWAS Community Court of Justice (adopted 6 July 1991, entered into force 5 November 1996). 4 See ST Ebobrah, ‘A Critical Analysis of the Human Rights Mandate of the ECOWAS Community Court of Justice’ Research Paper for the Danish Institute for Human Rights (on fi le with author) (2008) 16 and JA Hessbruegge, ‘ECOWAS Court Judgment in Habré v. Senegal Complicates Prosecution in the Name of Africa’ (2010) 15 Insights 2. 5 Supplementary Protocol A/SP.1/01/05 Amending Protocol A/P1/7/91 Relating to the ECOWAS Community Court of Justice (adopted and provisionally entered into force 19 January 2005). 6 See Hon. Dr. Jerry Ugokwe v Nigeria (2005) ECW/CCJ/APP/02/05 para 29. In the case, the Court decided that it has no jurisdiction to entertain the complainant’s principal claim relating to domestic electoral matters. However, the Court held that ‘by article 4(g) of the ECOWAS Revised Treaty, Member States are enjoined to adhere to the principles including (…) human rights in accordance with the provisions of the African Charter’. Such inclusion in the view of the Court ‘behoves on it to bring in the application of those rights catalogued in the African Charter’. 7 While it had very few human rights issues on its agenda under the 1975 founding Treaty, ECOWAS embarked on a substantive treaty reform in 1991 following which the Community erected the African Charter as the main human rights instruments to guide its action towards the realization of socio-economic development. In the words of the Community, such a move ‘arose from the need to adapt to the changes on the international scene’. See ECOWAS Revised Treaty (1993), art 4(g). 8 See for instance ST Ebobrah, ‘A rights-protection goldmine or a waiting volcanic eruption? Competence of, and access to, the human rights jurisdiction of the ECOWAS Community Court of Justice’ (2007) 2 African Human Rights Law Journal 328. 9 Created under the African Charter in 1981, the African Commission on Human and Peoples’ Rights operated from 1987. Its main problems have been its subordination to the African Union, its lack of express powers to make binding decisions and poor state compliance with its recommendations. On these issues see F Viljoen, International Human Rights Law in Africa (Oxford 2nd edn 2012) 339–343; R Murray, Th e African Commission on Human and Peoples’ Rights and International Law (Oxford 2000) 54–55; F Viljoen and L Louw, ‘State Compliance with the Recommendations of the African Commission on Human and Peoples’ Rights’ Th e American Society of International Law (ed) reprinted from (2007) 1 American Journal of International Law; GM Wachira and A Ayinla, Netherlands Quarterly of Human Rights, Vol. 31/3 (2013) 343 Horace S. Adjolohoun Court.10 Actually, the West African Court represents an alternative, if not a competitor, to its two senior continental counterparts, at least for West African litigants. First, the three bodies share the African Charter as the basis for their material jurisdiction. Second, the ECCJ’s personal jurisdiction extends to 15 ECOWAS Member States which also adhere to the African Commission and African Court’s regime. Finally, as opposed to the two other bodies, the sub-regional Court does not demand that local remedies be exhausted prior to receiving a case. Endowed with such advantages the ECCJ did not belie the promises vested in it. Since the rise of individual complaints due to the 2005 reform, the Court has received more than 140 cases11 and delivered 59 judgments12 of which at least 44 were in respect of human rights. Proceedings before the Court have involved a variety of litigants ranging from common ECOWAS citizens to former heads of states.13 Depending on the case, the Court ordered states to pay monetary compensation or take other actions for violating African Charter rights. Remedies granted have ranged from US$ 200,000 compensation for tortured Gambian journalist Ebrimah Manneh,14 to a declaration, in the Socio-Economic Rights and Accountability Project (SERAP) Education case,15 that socio-economic rights are justiciable in Nigeria. In 2011, the ECCJ was not shy to declare the enactment of blanket amnesty laws in Niger in violation of eff ective remedies by referring to international criminal law in the Ibrahim case.16 Finally, a ground-breaking judgment of the ECCJ is the December 2012 decision in the SERAP Environment case in which the Court ordered Nigeria to ‘ensure restoration of the environment of the Niger Delta, prevent the occurrence of ‘Twenty Years of Elusive Enforcement of the Recommendations of the African Commission on Human and Peoples’ Rights: A Possible Remedy’ (2006) 6 AHRLJ 471. 10 Established in 1998, the African Court on Human and Peoples’ Rights had its fi rst bench of judges appointed in 2004 and heard its fi rst case in 2009. Under its Protocol, the Court may receive cases from individuals and non-governmental organisations only aft er the state against which the case is brought has fi led a declaration allowing such complaints. See Protocol to the African Charter on Human and Peoples’ Rights establishing an African Court on Human and Peoples’ Rights (adopted 10 June 1998, entered into force 25 January 2004) art 34(6). As of July 2013 seven of the 54 African Union Member States had made the declaration and the Court had received and decided a handful of cases. 11 As of June 2013 according to statistics obtained at the Court Registry. 12 Ibid. 13 Both former presidents Mamadou Tandja of Niger and Laurent Gbagbo of Côte d’Ivoire resorted to the Court to protect their rights aft er the former was toppled by a military coup and the latter was removed by a coalition of domestic and international forces.