Courts of Regional Economic Communities in Africa and Human Rights Law

Ebobrah, Solomon T.

doi:10.1007/978-3-319-94848-5_8

Solomon T. Ebobrah^4,5

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Abstract

A significant feature of the second wave of regional integration that hit the African continent in the 1990s is the introduction of human rights into integration discourse. While rhetoric has not translated into much in a number of the regional economic communities (RECs) in Africa, in at least two of the more active RECs, this introduction of human rights into the integration discourse has translated into a judicialisation of human rights protection within the integration framework. While judicialisation of human rights protection in West Africa (ECOWAS Court) has occurred with the active endorsement of the region’s political leaders, the process in East Africa (East African Court of Justice) has developed in spite of the reluctance of the region’s political leaders. This contribution argues that the nature of political support that the REC courts enjoy in their human rights work has resulted in different paths and approaches to the protection of rights. This in turn has different consequences for the courts and their relationship with national legal systems and the African regional human rights system.

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Notes

1.
See generally, Weiler (1991), pp. 2403–2483.
2.
For instance, the old ECOWAS Community Court of Justice established under the original ECOWAS Treaty of 1975 was strictly an inter-state court.
3.
The Treaty establishing the AEC was adopted in Abuja, Nigeria in 1991 and entered into force in 1994.
4.
See the UNDP (2011), p. 3.
5.
See generally, Alter et al. (2013), pp. 737–779; Ebobrah (2007), p. 307; Gathii (2013), pp. 249–296.
6.
See Art 27 (1) of the 1999 EAC Treaty (as amended).
7.
See Protocol A/P.1/7/91 on the Community Court of Justice signed 06 July 1991, entered into force provisionally in 1991 and definitely on 05 Nov 1996.
8.
See Supplementary Protocol A/SP.1/01/05 which was adopted on 19 Jan 2005 and entered into force provisionally the same year.
9.
See Akande (1998), p. 437.
10.
Some would argue that this is only the traditional view. See also Paulus (2010), p. 210.
11.
See generally, Steiner et al. (2007), on how the form and function affects the creation of international governmental organisations.
12.
Art 6 of the EAC Treaty.
13.
Art 4 of the 1993 Revised ECOWAS Treaty.
14.
Emphasis mine.
15.
Emphasis mine.
16.
See Braithwaite (2002), p. 47. Braithwaite comparatively describes principles as ‘unspecific and vague prescriptions’.
17.
For instance, the Red Cross and Red Crescent movement considers their fundamental principles to be their values and practices which were ‘at once operational and aspirational’. See IFRC (2017).
18.
See generally, ICJ, Reparations for Injuries Suffered in the Service of the UN (advisory opinion), ICJ Reports 1969, 182–183. See also Akande (1998), p. 443.
19.
EACJ, Katabazi and 21 Others v Secretary General of the EAC & Another, unreported, reference No 1 of 2007. The Katabazi case is discussed more fully infra. The Katabazi case was heard by the EACJ in its original single chamber status, even though in apparent reaction to the earlier decision of the EACJ in Prof. Peter Anyang’ Nyong’o & 10 others v The Attorney General of Kenya & 5 others, reference No 1 of 2006, the EAC Summit of Heads of State had resolved in Dec 2006 to reconstitute the EACJ as a two-chamber court consisting of a first instance division and an appellate division. See generally, Gathii (2013), for a detailed account of the evolution of the appellate division as a consequence of the Nyong’o case. See also Alter et al. (2016), pp. 293–328.
20.
See 23 of the Katabazi judgment.
21.
See 16 of the Katabazi judgment.
22.
EACJ, Plaxeda Rugumba v Rwanda, unreported suit, reference No 8 of 2010. In this case, the Applicant brought the action on behalf of her brother, a member of the Rwanda Armed Forces who was detained and held incommunicado by the Rwandan authorities.
23.
See para 37 of the Plaxeda first instance judgment.
24.
EACJ, Democratic Party v The Secretary General of the EAC & 4 Others, unreported suit, reference No 2 of 2012. The Applicant in this case, a Ugandan political party brought all Partner states before the EACJ to challenge the failure or refusal of the states to make the relevant declaration to allow individuals access to the African Court on Human and Peoples Rights against each of those states. By Art 34 (6) of the Protocol establishing the African Court, such a declaration was required before that court can entertain complaints from non-state actors against a given state.
25.
See paras 40–42 of the Democratic Party first instance judgment.
26.
Para 43 of the Democratic Party first instance judgment.
27.
EACJ, Attorney General of Kenya v Independent Medical Legal Unit, unreported, appeal No 1 of 2011.
28.
See 12 of the IMLU Appellate judgment.
29.
Ibid.
30.
EACJ, unreported, appeal No 1 of 2014.
31.
See paras 63–68 of the appellate division’s judgment.
32.
See para 69 of the appellate division’s judgment in the Democratic Party case.
33.
See von Bogdandy and Venzke (2013), pp. 49–72 who argue that the development and stabilisation of expectations is one of the multiple functions that international courts currently undertake.
34.
In some of its judgments, the ECOWAS Court traces the foundation of its human rights work partly to the 2001 ECOWAS Supplementary Protocol on Governance and Democracy.
35.
ECOWAS Court, Ugokwe v The Federal Republic of Nigeria, case No ECW/CCJ/APP/02/05, judgment of 07 Oct 2005. The Applicant in this case brought this action before the ECOWAS Court alleging that the nullification of his election as a federal lawmaker by an election tribunal in Nigeria was in violation of his right to fair.
36.
As will be shown shortly, a 2005 Supplementary Protocol amending the 1991 Protocol of the ECOWAS Court expressly conferred human rights jurisdiction on the court.
37.
Para 28 of the Ugokwe judgment.
38.
Para 29 of the Ugokwe judgment.
39.
Ibid, para 30.
40.
ECOWAS Court, Essien v the Gambia and Another, unreported suit, No ECW/CCJ/APP/05/05, ruling of 14 Mar 2007. The Applicant who was seconded to the University of the Gambia by the Commonwealth Secretariat but was convinced to stay back at the end of the secondment sought a declaration that the failure to pay him in the currency the Commonwealth paid him for the same job amounted to a violation of his human rights to equal pay for equal work.
41.
See para 10 of the Essien ruling.
42.
ECOWAS Court, Ebrima Manneh v The Republic of the Gambia, unreported suit, No ECW/CCJ/APP/04/07; judgment No ECW/CCJ/JUD/03/08, judgment of 05 June 2008. The case was brought on behalf of a journalist who disappeared after he was arrested by the Gambian authorities.
43.
See para 14 of the Manneh judgment.
44.
ECOWAS Court, Tidjani v Federal Republic of Nigeria, unreported suit, No ECJ/CCJ/APP/01/06, judgment of 28 June 2008.
45.
Para 16 of the Manneh judgment.
46.
ECOWAS Court, Koraou v Niger, (2008) AHRLR 182 (ECOWAS 2008).
47.
See para 42 of the Koraou case. The rejection of the African Commission’s procedure is most pronounced in the ECOWAS Court’s insistence that the requirement to exhaust local remedies in the Charter is not applicable to the Court’s process.
48.
See for instance the WHO in ICJ, Legality of the Threat or Use of Nuclear Weapons (advisory opinion), ICJ Reports 1996, 79. See also ICJ, Reparations for Injuries Suffered in the Service of the UN (advisory opinion), ICJ Reports 1969, 182.
49.
See Akande (1998), pp. 443–444.
50.
For instance, see Ebobrah (2015).
51.
Art 27 (2) of the EAC Treaty the reads as follows: ‘The Court shall have such other original, appellate, human rights and other jurisdiction as will be determined by the Council at a suitable subsequent date. To this end, the Partner States shall conclude a protocol to operationalise the extended jurisdiction.’
52.
As Amerasinghe argues, traditionally, the jurisdiction of international courts and tribunals is based on the consent of states. See generally, Amerasinghe (2003).
53.
See Ogoola (2012) and cited by the appellate division of the EACJ in the case of Attorney General of Rwanda v Plaxeda Rugumba, unreported, appeal No 1 of 2012, at 9.
54.
Bills passed by EALA require assent by East African heads of state before they can become Community law. The East African bill of rights did not receive assent from any of the Partner States.
55.
See 16 of the Katabazi judgment.
56.
Kenya, Tanzania and Uganda were the three original Partner States of the EAC who subscribed to the 1999 Treaty of the EAC, continuing from where they stopped in 1977 when the EAC founded on a 1967 Treaty collapsed. Based on their colonial history, the national legal systems of all three states generally belong to the British Common Law Family. Burundi and Rwanda acceded to the EAC Treaty in 2007. Both countries can generally be classified as states with civil law judicial culture. South Sudan was also admitted into the EAC in 2016.
57.
Art 39 of the Protocol A/SP1/12/01 on Democracy and Good Governance Supplementary to the Protocol Relating to the Mechanism for Conflict Prevention, Management, Resolution, Peacekeeping and Security.
58.
Art 9 of Protocol A./P1./7/91 on the Community Court of Justice regulated access to the ECOWAS Court and only allowed ECOWAS Member States to bring actions on behalf of their nationals against other states.
59.
ECOWAS Court, Afolabi v Nigeria, unreported suit, No 2004/ECW/CCJ/01/03.
60.
See para 56 of the Afolabi judgment.
61.
At inception, there were 15 member states that made up ECOWAS. These were Benin, Burkina Faso, Cote d’Ivoire, Gambia, Ghana, Guinea, Guinea Bissau, Liberia, Mali, Mauritania, Niger, Nigeria, Sierra Leone and Togo. Cape Verde subsequently acceded to the ECOWAS Treaty of 1975 bringing membership to 16. In 2000, Mauritania withdrew its membership, bringing membership of the organisation to 15 once again.
62.
See Art 10 (d) (II) of the 2005 Supplementary Protocol of the ECOWAS Court.
63.
Katabazi, n 18 above. At the time the Katabazi case was heard, the EACJ was still a single court. It was in the aftermath of the Attorney Gen. of Kenya v Nyong’o case, application No 5 of 2007, at 8 (06 Feb 2007) that the EAC Partner States took the decision to create an appellate division.
64.
The applicants were charged with treason and remanded in custody but were granted bail by the High Court of Uganda but were prevented from perfecting their bail as security forces stormed and surrounded the court, rearrested and took the applicants back to jail. The applicants were then charged afresh with treason before a General Court Marshal even though they were all civilians. All of these were challenged before the Constitutional Court of Uganda which ruled in favour of the applicants. The claim before the EACJ was brought upon the failure of the state to release the applicants in spite of the judgment of the Constitutional Court.
65.
See 3 of the Katabazi judgment.
66.
See 9 of the Katabazi judgment.
67.
See 14 of the Katabazi judgment.
68.
See 16 of the Katabazi judgment.
69.
See 17 of the Katabazi judgment. Emphasis mine.
70.
See 23 of the Katabazi judgment.
71.
EACJ, Independent Medical Unit v The Attorney General of Kenya and 4 Others, reference No 3 of 2010.
72.
See 2 of the IMLU first instance judgment.
73.
See 6 of the IMLU first instance judgment.
74.
This case was thrown out on other technical grounds, but presented the picture of a regional court willing to receive human rights claims.
75.
EACJ, Plaxeda Rugumba v The Secretary General of the East African Community and The Attorney General of Rwanda, reference No 8 of 2010.
76.
See 10 of the Plaxeda Rugumba judgment.
77.
See paras 20–22 in 14–16 of the Plaxeda Rugumba judgment.
78.
EACJ, Mwakisha and 74 Others v AG Kenya, reference No 2 of 2010, decision of the first instance division wherein the applicants, nationals of Kenya and former employees of the defunct EAC claimed that Kenya’s non-payment of some of their entitlements amounted to a violation of the fundamental principles of the EAC. Although, the first instance division rules that it had jurisdiction to hear the case, it struck out the case on grounds that the 2000 EAC Treaty could not be applied retrospectively.
79.
See para 23 at 16 of the Plaxeda Rugumba judgment.
80.
As above.
81.
EACJ, Attorney General of Kenya v Independent Medical Legal Unit, appeal No 1 of 2011.
82.
See 10 of the IMLU appeal judgment.
83.
As above.
84.
EACJ, Mohochi v Attorney General of Uganda, unreported, reference No 5 of 2011, judgment of 17 May 2013. Applicant was prevented from entering Uganda and deported to Kenya even though he was part of group visiting the Chief Judge of Uganda. He challenged this as an infringement of the EAC Treaty.
85.
See para 32 of the IMLU appeal judgment.
86.
EACJ, Democratic Party v The Secretary General of the East African Community and 4 Others, appeal No 1 of 2014. This appeal arose out of an action by the Uganda based Democratic Party against the Secretary General of the EAC and four Partner States—Burundi, Kenya, Rwanda and Uganda—over the failure of the four states to make declaration on the platform of the African Union necessary to grant non-state actors direct access against those states before the African Court of Human and Peoples’ Rights.
87.
See para 55 at 18 of the Democratic Party appeal judgment.
88.
Para 64 at 21 of the Democratic Party appeal judgment.
89.
Although, the ECOWAS Court is established in the 1993 revised ECOWAS Treaty, ECOWAS Member States sign-up to and ratify a separate treaty (Protocol) that establishes the Court in order for that Court to have jurisdiction over such states.
90.
Supra n 35.
91.
Para 19–20 at 10 of the Ugokwe judgment.
92.
Para 28 at 14 of the Ugokwe judgment. The amended Art 9 (4) in the 2005 Supplementary Protocol provides that ‘The Court has jurisdiction to determine cases of violation of human rights that occur in any Member State’.
93.
Para 9 at 7 of the Essien ruling.
94.
Para 10 at 8 of the Essien judgment.
95.
ECOWAS Court, Registered Trustees of the Socio-Economic Rights and Accountability Project (SERAP) v President of the Federal Republic of Nigeria & 8 Others, unreported suit, No ECW/CCJ/APP/08/09; ruling No ECW/CCJ/APP/07/10.
96.
See para 64 of the SERAP Oil Coy ruling.
97.
For instance, in ECOWAS Court, Mba v Republic of Ghana, unreported suit, No ECW/CCJ/APP/01/03, judgment of 06 Nov 2013, the applicant’s claim that Ghanaian authorities interfered with his business and confiscated his property based on allegations of money laundering was framed as a violation of his right to property when it could easily have been dealt with as a violation of Ghana’s economic integration obligations under ECOWAS.
98.
See Fitzmaurice (1951).
99.
The two divisions of the EACJ have not shown a common approach to treaty interpretation, as the first instance Division has occasionally appeared to be more flexible.
100.
At 15 of the Katabazi judgment.
101.
See para 23 of the Plaxeda-Rugumba first instance judgment.
102.
As above.
103.
Para 41 of the Plaxeda-Rugumba first instance judgment.
104.
Para 26 of the Mohochi judgment.
105.
As above.
106.
Para 23 of the Plaxeda-Rugumba appellate judgment.
107.
Para 24 of the Plaxeda-Rugumba appellate judgment. See also 12 of the IMLU appellate judgment.
108.
See para 33 of the Plaxeda-Rugumba appellate judgment.
109.
Para 35 of the Plaxeda-Rugumba appellate judgment.
110.
As above. Emphasis mine.
111.
EACJ, Attorney General of Uganda v Omar Awadh & 6 Others, unreported, appeal No 2 of 2012.
112.
Para 48 of the Awadh appeal judgment.
113.
Ibid.
114.
ECOWAS Court, Pinheiro v The Republic of Ghana, unreported suit, No ECW/CCJ/APP/07/10.
115.
Para 49 of the Pinheiro judgment.
116.
ECOWAS Court, Falana & Another v the Rep of Benin & Two Others, unreported suit, No ECW/CCJ/APP/10/07; judgment No ECW/CCJ/JUD/01/12, judgment of 24 Jan 2012.
117.
Para 45 of the Koraou decision.
118.
ECOWAS Court, Incorporated Trustees of Fiscal and Civil Rights Enlightenment Foundation v Government of the Federal Republic of Nigeria, unreported suit, No ECW/CCJ/APP/02/14; judgment No ECW/CCJ/APP/JUD/18/16, judgment of 07 June 2016.
119.
See 16 of the Fiscal and Civil Rights Foundation judgment.
120.
ECOWAS Court, SERAP v President of the Federal Republic of Nigeria and Another, unreported suit, No ECW/CCJ/APP/12/07; judgment ECW/CCJ/JUD/07/10, judgment of 30 Nov 2010.
121.
Para 52 of the Awadh appeal judgment for instance.
122.
Para 11 of the Mohochi first instance judgment.
123.
Para 30 of the Mohochi first instance judgment.
124.
Para 3 of the Democratic Party first instance judgment.
125.
For instance, see para 55 of the Awadh appeal judgment.
126.
Para 71 of the Democratic Appeal judgment.
127.
Para 73 of the Democratic Appeal judgment.
128.
Supra n 35, para 29.
129.
See ECOWAS Court, Essien v The Gambia, unreported suit, No ECW/CCJ/APP/05/05 ruling of 14 Mar 2007, paras 23 and 27; see also the Koraou case, para 42.
130.
Para 41 of the Koraou case.
131.
For instance, on the Fiscal and Civic Rights foundation case, the ECOWAS Court referred to the jurisprudence of the United Nations Human Rights Committee and to no less than 5 judgments of the European Court of Human Rights.
132.
ECOWAS Court, Alade v Federal Republic of Nigeria, unreported suit, no ECW/CCJ/APP/05/11; judgment No ECW/CCJ/JUD/10/12, judgment of 11 June 2012 in which the applicant alleged that his detention in prison custody without trial was a violation of his rights.
133.
See para 25 of the Alade judgment.
134.
ECOWAS Court, Williams & Another v Republic of Liberia & 4 Others, unreported suit, No ECW/CCJ/APP/06/14; judgment No ECW/CCJ/JUD/25/15, judgment of 30 Nov 2015.
135.
The UDHR is invoked or referred to in cases such as ECOWAS Court, Keita v Mali, unreported suit, No ECW/CCJ/APP/05/06; the Essien case; the Koraou case; see also ECOWAS Court, Djelou & 2 Others v The Republic of Togo (Djelou case), unreported suit, No ECJ/CCJ/APP/18/13; judgment No ECW/CCJ/JUD/17/15/Rev, judgment of 06 Oct 2015 and the Williams case.
136.
See for instance Djelou case above and the Fiscal and Civic Rights Foundation case.
137.
See the Essien case for instance.
138.
Invoked in the Koraou case for instance.
139.
As above.
140.
Djelou case and Fiscal and Civic Rights Foundation case.
141.
A perusal of the jurisprudence seems to suggest that express reference to other international instruments is more when the bench handling the given case tilts more to the civil-law (francophone) side.
142.
Para 24 of the Plaxeda-Rugumba first instance judgment. Emphasis mine.
143.
As above.
144.
See 23 of the Katabazi judgment.
145.
Para 9 of the Mohochi first instance judgment.
146.
Para 130 of the Mohochi first instance judgment.
147.
Para 28 of the Koraou judgment.
148.
Para 67 of the Alade judgment.

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Niger Delta University, Amassama, Nigeria
Solomon T. Ebobrah
CHR University of Pretoria, Pretoria, South Africa
Solomon T. Ebobrah

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Faculty of Law, Goethe University, Frankfurt am Main, Germany
Stefan Kadelbach
Faculty of Law, Augsburg University, Augsburg, Germany
Thilo Rensmann
Faculty of Law, Radboud University, Nijmegen, The Netherlands
Eva Rieter

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Ebobrah, S.T. (2019). Courts of Regional Economic Communities in Africa and Human Rights Law. In: Kadelbach, S., Rensmann, T., Rieter, E. (eds) Judging International Human Rights. Springer, Cham. https://doi.org/10.1007/978-3-319-94848-5_8

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