An Appraisal Of The Role Of Ecowas Court Of Justice In The Protection Of Human Rights

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ABSTRACT

This study examined the role of the ECOWAS Community Court of Justice (ECCJ) in the protection of human rights in the West African sub-region specifically, under the ECOWAS Treaties of 1975 and the Revised Treaty of 1993.

The research focused on the ECOWAS treaties, Conventions and Protocols. However, references were made to similar international, regional and national treaties, conventions and protocols such as the United Nations Charter on Human Rights, European Economic Community and the African Charter on Human and Peoples’ Rights etc.

The work examined the nature and scope of the ECOWAS mandate and its functions towards achieving the implementation of human rights in the ECOWAS Community Court of Justice.

In this premise, the ECOWAS organs responsible for the execution of the treaties, protocols and conventions were discussed with a view to understanding how human rights issues were adjudicated upon in the ECOWAS Community Court of Justice as well as how they solved any noticeable problems in the implementation of these treaties, conventions and protocols.

In this vein, a doctrinal method of research was adopted to achieve this goal by analyzing the nature and scope of not only the human rights concepts, but also examined the nature and scope of the jurisdiction of the ECOWAS Court of Justice. This was done by the use of both primary and secondary sources of information such as the

ECOWAS treaty of 1975, the revised treaty of 1993, ECOWAS protocols and conventions as well as other international and regional community laws as they applied to their respective regions.

Since we were studying the role of the ECOWAS Court of Justice in the protection of human rights under its treaty, we also considered the contributions made by academic scholars on the subject matter, such as in text books, journals, articles in magazines, newspapers and most importantly, some case law reports from the ECOWAS Community Court of Justice’s decisions.

More significantly was the analysis undertaken in respect of the rules of procedure and evidence in the ECOWAS Court of justice and the access to justice for the citizens of the ECOWAS member states. That was why it was considered imperative to examine some of the selected case laws adjudicated by the ECOWAS Court of Justice.

It was based on the above that at conclusion of this work, we brought out the problems inherent in the implementation of the ECOWAS Treaty as it affected human rights protection with a view to solving them by making reasonable suggestions and recommendations. It was hope that this would also contribute to knowledge on this area on significantly benefit Researchers, students, human rights organization all ECOWAS member states, Africa and the world at large.

TABLE OF CONTENTS

Title page…………………………………………………………………………i

Declaration……………………………………………………………………….ii

Certification……………………………………………………………………….iii

Acknowledgement……………………………………………………………….iv

Dedication…………………………………………………………………………v

List of abbreviations……………………………………………………………..vi

Abstract……………………………………………………………………….…viii

Table of Statutes……………………………………………………………… x

Table of Cases…………………………………………………………………xiii

Table of Contents……………………………………………………………. xvii

 

 

CHAPTER ONE

 

 

 

 

 

1.0

GENERAL INTRODUCTION

 

 

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1.1

BACKGROUND TO THE RESEARCH

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1.2

Statement of the Research Problem-

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1.3

Aims and objectives of the research -

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1.4

Scope and limitations of the research -

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1.5

Significance/ Justification of the Research-

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1.6

Research Methodology -

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1.7

Literature Review-

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1.8

Organizational layout

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CHAPTER TWO

 

 

 

 

 

2.0

CONCEPTUAL CLARIFICATION OF KEY TERMS -

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2.1

Introduction

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2.2

Nature and scope of ECOWAS

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2.3

Functions and mandate of ECOWAS

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2.4

Nature and scope of ECOWAS organs

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39

2.5

The Historical Development of Human rights

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2.6

Nature of Human Rights

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58

2.7

The Scope of Human Rights -

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2.8

International Covenant on economic Social and Cultural Rights- 102

2.9

Summary  -

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CHAPTER THREE

3.0    NATURE AND SCOPE OF THE JURISDICTION OF ECOWAS

 

 

COURT OF JUSTICE -

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108

3.1

Introduction

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3.2

Background to the ECOWAS court of justice

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3.3

Scope of the jurisdiction of ECOWAS Court

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117

3.4

Rules of procedure and evidence of the court

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145

3.5

Summary  -

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CHAPTER FOUR

 

 

 

 

4.0

PROTECTION OF HUMAN RIGHTS BY THE ECOWAS

 

 

 

COURT OF JUSTICE -

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4.1

Introduction

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Human rights jurisdiction of ECOWAS Court of Justice -

 

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4.3

Access to the ECOWAS Court of justice for justice as a

 

 

 

Human Right -

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164

4.4

Selected Case law on human rights by ECOWAS Court

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4.5

Summary  -

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212

 

 

 

CHAPTER FIVE

 

 

 

 

 

5.0

CONCLUSION, FINDINGS AND RECOMMENDATIONS -

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5.1

Findings and Observations

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5.2

Recommendations

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5.3

Concluding Remarks

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BIBLIOGRAPHY

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250

 

CHAPTER ONE

 

1.0    GENERAL INTRODUCTION

1.1    BACKGROUND TO THE RESEARCH

The desire towards the establishment of ECOWAS Court of justice and an economic community embracing all the states of the West African region was initiated in the early sixties. The initiative was sought after most of these countries had gained independence from their former colonial powers such as the United Kingdom and France.

 

There are fifteen countries in West Africa that constitute what is called Economic Community of West African States, hereinafter called (ECOWAS) namely: Nigeria, Ghana, Burkina Faso, Mauritania, Togo, Cote d’voire, Mali, Senegal, Niger, Gambia, Sierra Leone, Liberia, Benin

Republic, Chad and Cape Verde.

ECOWAS was founded on 28th May, 1975 by the Treaty of Lagos. We shall divide the basic reasons for the establishment of ECOWAS into two which includes :

 

1. The remote reasons such as:

  1. Equality and inter-independence of member states;

 

  1. Solidarity and collective self reliance;
  1. Interstate cooperation, harmonization of policies and integration of programs;
  1. Promotion of harmonious development of economic activities among member states;
  2. Observance of the legal system of the community;

 

  1. Peaceful settlement of disputes among member states, active cooperation, accountability, economic justice and popular participation in development.

 

ECOWAS is a regional body which has its basis under Article xxiv of the General Agreement on Tariffs and Trades (GATT). This means that all ECOWAS member states are also members of GATT automatically.

 

This Article provides for the promotion of economic, social and cultural development and the integration of economies of the States in order to increase economic self reliance and promote indigenous and self

reliant development.4

 

  1. The immediate reasons which now fall within the aims and objectives of ECOWAS arise because of series of political conflicts, hunger and natural disasters. The ECOWAS mandate or role was extended to include the issues of human rights, maintenance of regional peace and security. The current revised Treaty of ECOWAS made provisions in respect of human rights and maintenance of regional peace and security.5 Hence, in their nascent rise, most of the ECOWAS states focused

 

their attention on consolidating their independence and upholding their national sovereignty tenaciously. Closely linked to this is the unusual suspicion as well as political and ideological differences among the West African States. These however, threatened cordial inter-state relationship among the member States. Hence, this informed the need for the formation of ECOWAS so as to forge closer ties among the countries. As the world gradually reduces into a “global village” due to the various scientific and technological developments, smaller economic blocs in form of small countries are becoming more and more inefficient in relation to resource control. There is the need therefore for the smaller nations to form alliances in order to build economic strength.

 

Also, small economic blocs in some regions are not in a formidable position to compete internationally with larger nation states. Thus, it presents a formidable challenge to create a regional organization such as the ECOWAS.

The ECOWAS which was originally formed exclusively, as an economic organization was later expanded to include human rights issues, in addition to the economic integration issues, such as the harmonization and coordination of their national economic policies as well as:

i. the promotion and integration of socio-economic and political programs, projects and activities which include transportation, information, education policies, culture, science, tourism, environmental health and legal matters.

The establishment of ECOWAS common market, protection of the environment, joint production enterprises, liberalization of trade and distribution of tariffs, promotion of balanced development, and establishment of a fund for cooperation, compensation and development.

 

1.2          STATEMENT OF THE RESEARCH PROBLEM

The problems of ECOWAS began with the political groupings and their orientation which culminated to lack of commitment to its policy implementation particularly between the Anglo-phone and Franco-phone countries. Some of these problems are highlighted below.

1.2.1  Problem of lack of development

The basic problem of ECOWAS includes corruption leading to lack of economic development in the sub-region.

The issues of extortion at the border crossings by the personnel of the agencies concerned such as the customs, immigration officials, coastal guards and police etc, is creating a stumbling block to achieving the desired ends of abolishing the trade obstacles within ECOWAS regional trading relationships.

But, West African (WA) countries are yet to attain the economic maturity attained by most European countries in economic development. There is about three hundred years difference between the economic take off of most European countries and West African countries, most of which are even yet to take off economically. Examples abound in countries like Togo, Burkina Faso, Gambia, Chad, Liberia and Mauritania, to mention but few.

However, it was thought by the leaders of ECOWAS countries that, if the region is to be developed, the countries in it must develop together in unison. It was believed that no country of ECOWAS can develop without the others. The necessity of the world economic order today requires neighboring countries to cooperate in order to develop together. For example, Nigeria cannot develop meaningfully and sustainably if other neighbouring countries remain poor. The impact of those non developed neighbouring countries could have a profound effect on the development of Nigeria in a negative way.

The adage is that, no individual is an island, ipso facto, no country is an island. All ECOWAS countries need one another in order to develop economically, and meaningfully. It was the popular view that the formation of a regional group, like ECOWAS, is the solution to the problem of economic under development of the member countries of ECOWAS. If it were so, how is it that since the establishment of the ECOWAS in1975 there has been no solution to the economic and legal development of most of the countries that formed ECOWAS? This is the problem that we will struggle to find out later in this work.

 

1.2.2 The Problem of colonialism and the practical application of the

Treaty

A serious problem of ECOWAS is how to eradicate all forms of colonialism and defend the countries sovereignty and territorial integrity.

This problem of colonial legacy left by Britain and France, the former colonial rulers of ECOWAS member States constitutes a fundamental drawback to ECOWAS integration. For instance, while Britain practiced the direct and indirect rule, France on the other hand, practiced the policy of assimilation where in all Franco-phone states’ citizens were made to behave like African Frenchmen in all ramifications. This had devastating effects on ECOWAS legal integration policy. Also there is the problem in the application of economic legal provisions of the ECOWAS Treaty into a working instrument that will achieve results similar to those achieved by similar provisions of the European Union Treaty. An example is how the legal provisions of the ECOWAS Treaty could be amended to suit all member countries. In fact, this was part of the reason the ECOWAS Treaty of 1975 was revised in 1993.

The European Economic Union (E.U) Treaty, which ECOWAS followed suit and reproduced, reflects substantially, the economic realities of Europe and this has made the E. U to succeed largely. How can the ECOWAS Treaty which reflects the African continent’s reality be made to work in an environment that is different from Europe? This is another problem of this research.

To further elaborate on the problem, how can there be efficient application of the ECOWAS legal and Economic Treaty, in a situation where no single country within the organization has the common basic legal and economic needs which the others don’t have?

For instance, if Ghana can manufacture cars, televisions and fridges etc, whereas, Nigeria or any other member of the ECOWAS states cannot but, they go and buy from Ghana. This will stimulate economic integration. Unfortunately, none of these countries manufactures any of the essential and basic needs of the other countries. This impedes the practical application of the ECOWAS Treaty and its realization.

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