Halifa Sallah On The Urgency To Stop The Experts Meeting From Deliberating On Gambia Government Proposals On The Ecowas Protocol

PEOPLE’S CENTRE FOR SOCIAL SCIENCE RESEARCH CIVIC AWARENESS AND COMMUNITY INITIATIVE 30 PAPA SARR STREET, CHURCHILLS TOWN, P.O.BOX 2306, SERRREKUNDA, THE GAMBIA, TEL: (220) 4393177/4394536/9902864 FAX: (220)4393177 Email: [email protected] September 27, 2009 The President ECOWAS Commission Secretariat Building 60 Yakubu Gowon Cresent Asokoro Abuja Nigeria

Re: The Urgency to Stop The Experts Meeting from Deliberating on Gambia Government Proposals It has been brought to my notice that a meeting of the Technical Committee on Judicial and Legal Affairs is to take place in Abuja from 28 September to 3 October 2009. This meeting is reportedly convened by the ECOWAS Commission to review proposals made by the Government of the Gambia in 2008, for amendment to the ECOWAS Treaty (1993) and the Supplementary Protocol A/SP.1 /01 /05 relating to the Community Court of Justice. As a political leader in West Africa I would like to draw the attention of the Commission in particular and representatives of civil society organisations in West Africa at large to the procedural lapses which has occasioned the handling of this proposal from the Gambia and further question the merits of the proposals with a view to promoting a substantive debate on them by all stakeholders. Allow me to begin by asserting that the Community of West African States is borne out of the conglomeration of principles, instruments, institutions and normative practices which have accorded it an internal and external personality. A substantive debate among all stakeholders on the likely impact of any major proposal for an amendment of Community instruments should predicate such an eventuality. In short, the principles, objectives, instruments, institutions and normative practices of the Community of West African States are connected with, dependent on and determined by each other. Any flaw

in the amendment of an instrument can have negative impact on the viability of the institutions of the Community and further deter the attainment of its objectives. This is why State parties have the primary right and responsibility to receive all proposals for amendments and should be given adequate time to engage in national consultation to prepare the ground for debate by the Authority on the matter. The proposals which is reported to have been made by the Government of The Gambia, which the proposed experts meeting had put in the public domain, touch on the nerve centre of the Community and need the widest and most vigorous of debates and dialogue by civil society especially bar associations and Human Rights associations, the National Parliaments and the ECOWAS Parliament before an enlightened consensus could be built around it. I will prove beyond any shadow of doubt that to amend the provisions mentioned would tantamount to re-writing the whole text of the Treaty establishing the Community. However, my purpose for writing is not merely to state an opinion on the merits or demerits of the proposed amendments as featured in the public domain. We will be consulting with our parliamentary colleagues in the Gambia for the necessary questions to be initiated and the relevant debates to be initiated right at home, on this score. Notwithstanding this, in passing, I will still rely on what is available in the public domain to initiate the debate via this open letter to the Commission. At this instance what is of major importance is the need to focus on the procedural lapses of the commission and call upon it not to deliberate on any agenda during its expert meeting which deals with the Amendments proposed by the Gambia Government regarding the Community Treaty and the protocol on the Community Court of Justice. The ECOWAS Commission has no mandate to convene an expert meeting to discuss on the proposed amendments prior to their consideration by the State parties. The Treaty establishing the Community of West African States and the protocol establishing the Community Court of Justice have stated with clarity and without equivocation what the Commission should do when a proposal is submitted for amendment. Article 90 of the Treaty does focus on the issue of amendments and revisions of the Treaty. It states that: 1. Any Member State may submit proposals for the amendment or revision of this Treaty. 2. Any such proposal shall be submitted to the Executive Secretary who shall notify other Member States thereof not later than thirty (30) days after the receipt of such proposals. Amendments or revision shall not be considered by the Authority unless Member States shall have been given at least three months notice thereof. 3. Amendments or revisions shall be adopted by the Authority in accordance with the provisions of Article 9 of this Treaty and shall be submitted for

ratification by all Member States in accordance with their respective constitutional procedures. They shall enter into force in accordance with Article 89 of this Treaty. Article 89 adds that; “This Treaty and the Protocols which shall form an internal part thereof shall respectively enter into force, upon ratification by at least nine signatory States, in accordance with the constitutional procedures of each signatory State.” It is clear from this that the role of the Secretariat is to receive and forward proposals for amendments to State parties and give notice for their consideration by the member States. This role of the Commission is further buttressed by Article 33 of the Protocol establishing the Community Court of Justice. Article 33 of the Protocol deals with the issue of amendments It States that: 1. “Any Member State or the President of the Court may after Consultation with the other Members, submit proposals for the amendment of this Protocol. 2. All proposals shall be submitted to the Executive Secretariat which shall forward them to Member States within thirty days of receipt. Such amendments shall be examined by the Authority on the expiration of the thirty days notice to Member States.” It is abundantly clear that the role of the Commission is simply to forward proposals to Member States within 30 days of receipt. Three months notice is given to Member States according to the Treaty before a date is scheduled for the Authority to consider the proposals. The Protocol gives 30 days notice at the expiration of which the proposals can be tabled for consideration by the Authority. Hence the legal experts have no locus standi to give any advice to member states regarding the proposals. This is the first point. Allow me to move on to open up the debate on the merits or demerits of what is reported as the proposal emanating from the Government of the Gambia which is currently being discussed in the public domain. It is in the public domain that the Gambia Government is proposing for the amendment of Article 76 (2) of the Revised Treaty which states among other things that the decision of the community court is final and shall not be subject to appeal. The amendment which is reported to be proposed by the Gambia Government calls for the establishment of an appeals procedure that allows parties to a case to appeal against the decision of the Court. At first glance this appears to be an uncontroversial proposition. However if the reported proposal is examined from a holistic point of view one is bound to see the unsettling and inconclusive effect it will have on Community institutions and businesses which the principle of giving the Community Court final jurisdiction to decide on the outcome of

cases aimed to overcome. In short, properly drafted provisions are made for a purpose. They are not made willy-nilly to satisfy the whims and caprices of fickle minds. Thorough thinking is given to them before they are engraved in Treaties, Charters and Protocols. Allow me to look at Article 76 more closely. It deals with the settlement of disputes. Article 76(1) states that: "Any dispute regarding the interpretation or the application of the provisions of this Treaty shall be amicably settled through direct agreement without prejudice". Article 76(2) adds that: "Failing this, either party or any other Member States or the Authority may refer the matter to the Court of the Community whose decision shall be final and shall not be subject to appeal". The provision provides for settlement of disputes by direct negotiations failing which the parties may refer the matter to the Court of the Community. It goes without saying that if Court decisions are inconclusive one could never bring a dispute to a close. The objective of the Community is to ensure that the Community Court of Justice will carry on the same functions of the International Court of Justice when it comes to the settlement of disputes regarding the interpretation and application of the provisions of the Treaty. Any proposal for the creation of an Appeal Court for International and Regional Adjudicating authorities should be considered to be more cosmetic than relevant to the issue of substantive justice. The International and Regional Courts are usually established to serve as courts of last resort. They are by nature and design appeal Courts. It is obvious that there must be an end to litigation and courts must exist which give final decisions. Without the finality of decisions of a particular court justice will never be done and will never be seen to be done. Article 76 is simply designed to ensure conclusiveness in matters of settlement of disputes regarding the implementation or application of the provisions of the Treaty. The provision providing for the state parties to refer disputes to the Community Court of Justice, if direct negotiation fails, is consistent with the fundamental objective of making the court the Final arbiter on all legal matters affecting the community and its members. The finality of the decision of the court expressed in article 76 does not stand as an Island onto itself. It is an offshoot of Articles 15 and 16 of the Treaty. Article 16 provides for the establishment of an Arbitration Tribunal. Hence the Court would have served as an Appeal Court to the Arbitration Tribunal. This is why Article 76 gave it final Jurisdiction to settle disputes. Suffice it to say that Article 15 intended to make the Community Court the Principal Judicial Instrument of ECOWAS. In short, the issue of the finality of the decision of the Community Court is not only featured in Article 76, it is in fact more brazenly engraved in Article 15 of the Treaty. Article 15 which establishes the Community Court of Justice states that:

1. There is hereby established a Court of Justice of the Community. 2. The status, composition, powers, procedure and other issues concerning the Court of Justice shall be as set out in a Protocol relating thereto. 3. The Court of Justice shall carry out the functions assigned to it independently to the Member States and the institutions of the Community. 4. Judgements of the Court of Justice shall be binding on the Member States, the institutions of the Community and on individuals and corporate bodies. Hence it is very clear that the State parties wanted the Community Court of Justice to be a final Court of Justice for matters affecting the Community and the People. This is further buttressed by Article 7 which gives the following powers to the Community court of Justice. 3. Pursuant to the provisions of Paragraph 2 of this Article, the Authority shall: g) refer where it deems necessary any matter to the Community Court of Justice when it confirms, that a Member State or institution of the Community has failed to honour any of its obligations or an institution of the Community has acted beyond the limits of its authority or has abused the powers conferred on it by the provisions of this Treaty, by a decision of the Authority or a regulation of the Council; h) Request the Community Court of Justice, as and when necessary, to give advisory opinion on any legal questions; Article 10 also empowers the Council of Ministers to request the Community Court of Justice, where necessary, to give advisory opinion on any legal questions; The Community Court is therefore the Principal Legal authority of the Community of West African States. Hence a proper reading of Articles 76, 16 and 15 would reveal that the Treaty sought to prepare grounds for direct negotiation to settle disputes failing which the parties would resort to an Arbitration Tribunal. If that fails the dispute could be referred to the Community Court for final decision. Hence the Community Court is designed to be the last jurisdiction for the final settlement of disputes. Hence any proposal for the powers of the Court to be negated so that it will not have final jurisdiction is an invitation to rewrite and re-negotiate the Treaty establishing the Community of West African States. This is why Article 19(3) of the Protocol on the Community Court of Justice states among other things that the decisions of the Community Court “…shall be final and immediately enforceable.” Hence, to call for the amendment of Article 76 of the Treaty without amending Article 19 of the Protocol which constituted the Court is to introduce inconsistency and ambiguity in the instruments which is not the purpose of amending instruments. The Community Court is accorded its mandate because of the intention to establishing a West African Community with functioning Institutions which are being maintained by the taxes of the citizens of the Community. ECOWAS has an Authority of Heads of State, a Parliament, which is moving towards direct election and being converted into a legislative authority and a Community Court of Justice which should be relevant to the people of the region. What determines the Competence of the Community Court as a

Final Court of arbitration is its composition. Hence the State Parties need to interrogate what type of Community they intended to create when they established a Community Parliament and Community Court of Justice? In my view, the objective is to accord mandate to Community Institutions where they comparatively have greater capacity to deliver justice, liberty and prosperity to the population in West Africa so as to promote greater integration. The mandate given to the Community Court of Justice is apt and another Court with appellate Jurisdiction is neither in line with the standards of best practice for Regional or International Courts nor cost effective. I am not sure what the accompanying explanatory memorandum states regarding the rationale for the proposed amendment. Civil society representatives and political leaders like my very self should request to get access to the details. I would however suggest that State parties and their civil society segments should examine the proposed amendments objectively. Old institutions are not discarded and new institutions built just for the sake of administrative convenience. The only way to justify the need for an Appeal Court is to provide a dossier detailing the practices and demonstrated incapacities of the Community Court which warrant the need for an Apex Court. A proposal to amend instruments must aim to show defects which one aims to remedy. Furthermore, it is not sufficient to simply point out defects, it must also give concrete expression to the remedy sought. The proposal for the transfer of Jurisdiction to an Appeal Court should be accompanied by a proposal on the status, composition and powers of such a court. A simple indication of the need for an appeal court does not satisfy the essential ingredients of an amendment. At most this is an opinion which could be expressed during meetings of the organs of the Community. In my view that is the rightful place of the proposed amendment. It should be withdrawn by the Gambia Government and scaled down to the level of a concept paper prepared by the Attorney General’s Chambers for national debate in workshops before it is proposed as an amendment, to avoid wallowing in puddles of controversy. Let me move to the second point. I have also been informed that the proposed amendment deals with The Supplementary Protocol A/SP.1/01/05 amending the Protocol relating to the Community Court of Justice, especially Article 9 which deals with the Jurisdiction of the Court and Article 10 which deals with access to the Court. It is in the public domain that the Gambia Government has raised objections against Articles 9(4) and 10(d) of the Supplementary Protocol which enables aggrieved parties to file their cases directly to the Community Court in case of violation of Human Rights irrespective of local jurisdiction and local remedies for redress that may exist in Member States. Now one may ask: What is fundamentally wrong with the Community Court sharing original jurisdiction with national courts to determine violations of human rights that occur in any member state as stipulated in article 9 (4) of the supplementary protocol? What is fundamentally wrong with Article 10 (d) of the Supplementary Protocol? It states that:

"Access to the Court is open to individuals on application for relief for violation of their human rights, the submission of application for which shall: i) Not be anonymous, nor ii) Be made whilst the same matter has been instituted before another International court for adjudication" Given its grammatical and ordinary meaning the provision is simply saying that the person who brings a case before the Community Court cannot be anonymous and must not do so while his or her case is pending before another international Court for adjudication. In my view, there is nothing fundamentally wrong in the Community Court sharing original jurisdiction with national courts on matters provided for by the instruments of the Community. For ease of comprehension let me make reference to the fact that the Supreme Court of the Gambia is the final court of appeal. However it has original Jurisdiction in matters of interpretation and enforcement of the constitution other than the fundamental rights provisions. It also has original jurisdiction in determining whether any law has been made in excess of the powers conferred by the constitution. The ECOWAS also deemed it fit to give West African Citizens direct access to the Community Court to seek redress for violation of Human Rights because of its aim to promote West African Citizenship by making Community institutions relevant to the people. The call for a negation of Jurisdiction of National and Regional institutions where they matter most is to regress in to narrow nationalism and eschew regional integration. The ECOWAS instruments have gone beyond the doctrine of narrow nationalism and non-interference in internal affairs. No Country was compelled to ratify the Treaty and its protocols. No Country is compelled to retain membership. ECOWAS is a Community with Principles. The provisions of the Supplementary Protocols are derived from those Principles which cannot be re-negotiated without reducing the whole architecture of the Community into rubbles. For the avoidance of doubt let me give prima facie evidence. Article 15 of the Treaty established the Community Court of Justice and then instructed that “the status, composition, powers, procedure, and other issues concerning the Court of Justice shall be as set out in a protocol relating thereto.” Suffice it to say that Article 89 states that the Treaty and the Protocols shall form an integral part of the Instruments of the Community. Protocol (A/P1/7/91) On the Community Court of Justice indicated the competence of the court under Article 9 and its advisory capacity under Article 10. Hence the Court has both judicial and advisory capacities. In 2001 The Community came up with a Protocol on Democracy and Human Rights which has been ratified by the Gambia . Article 1 deals with the Constitutional Convergence Principles. Paragraph (h) states in no uncertain terms that “the rights set out in the African Charter on Human and Peoples’ Rights and other International Instruments shall be guaranteed in each of the ECOWAS states; each individual or organisation shall be free to have recourse to common or civil law courts, a court of special jurisdiction, or

any other national institution established within the framework of an international instrument on Human Rights, to ensure the protection of his or her rights. In the absence of a court of special jurisdiction, the present supplementary protocol shall be regarded as giving the necessary powers to common law or civil law judicial bodies”. It is clear from this that all signatories to the Supplementary Protocol have accepted the applicability of regional and international Human Rights Instruments whether they have formally ratified them or not. Hence the Community Court of Justice could draw inspiration from such instruments. In fact Article 60 of the African Charter on Human and Peoples’ Rights has dealt with the issue of applicable principles in matters of human Rights adjudication. It reads: “ The Commission shall draw inspiration from international law on Human and Peoples’ Rights, particularly from the provisions of various African instruments on Human and Peoples’ Rights, the Charter of the United Nations, the Charter of the Organisation of African Unity, the Universal Declaration of Human Rights, other instruments adopted by the United Nations and by African countries in the field of Human and Peoples’ Rights as well as from the provisions of various instruments adopted within the Specialised Agencies of the United Nations of which the parties to the present Charter are members.” The issue of drawing inspiration from International Human Rights instruments in the adjudication of Human Rights cases should not be a concern to warrant the amending of instruments of the Community. At best, they could form the basis of submission of litigants before the court to enhance equity in the delivery of judgment by the Community Court . Their discussion in the abstract would not enhance any clarity on the legitimate jurisdiction of the courts. Finally, the key motive for the proposal of an amendment on the Supplementary Protocol dealing with the jurisdiction of the court is the question of admissibility of cases on human rights before local remedies are exhausted. The simple question to be asked is: Who is to determine whether local remedies have been exhausted or not? The answer is obvious. It must be the Community Court. This it can do only if it has parallel jurisdiction to hear cases. This is why the Supplementary Protocol did not tie the hands of the Court to receive cases by mentioning the exhaustion of Local remedies. This is to be raise and proven or disproved by the litigants since the desire for the exhaustion of local remedies are all ready mentioned in other protocols. They do not however serve as a bar to file cases before the court. Article 39 of the supplementary protocol on democracy and Good governance indicates the need to do everything necessary to resolve the problem of human rights locally. However it proposed an amendment which will confer jurisdiction to the Community Court to hear cases on violation of human rights. “Protocol AP1791 Adopted in Abuja on 6th July 1991 relating to the Community Court of Justice, shall be reviewed so as to give the court the power to hear, inter alia, cases

relating to violations of Human Rights, after all attempts to resolve the matter at the national level has failed” This is explicit. The Community aimed to confer jurisdiction to the Community Court to hear cases relating to violation of human rights after all attempts to resolve the matter at the national level has failed.” This means that it is the Community Court which will decide from the facts presented whether all attempts to resolve the problem at the national level has failed or not. In 2005, the Supplementary protocol ASP.10105 states in article 4 the “the court has jurisdiction to determine cases of violation of human rights that occur in any member state” Article 10 (d) adds that access to the court is open to individuals on application for relief for violation of their human rights, the submission of application for which shall i. not be anonymous ; nor ii. Be made whilst the same matter has been instituted before another international court for adjudication.” “ The Commission shall draw inspiration from international law on Human and Peoples’ Rights, particularly from the provisions of various African instruments on Human and Peoples’ Rights, the Charter of the United Nations, the Charter of the Organisation of African Unity, the Universal Declaration of Human Rights, other instruments adopted by the United Nations and by African countries in the field of Human and Peoples’ Rights as well as from the provisions of various instruments adopted within the Specialised Agencies of the United Nations of which the parties to the present Charter are members.” The issue of drawing inspiration from International Human Rights instruments in the adjudication of Human Rights cases should not be a concern to warrant the amending of instruments of the Community. At best, they could form the basis of submission of litigants before the court to enhance equity in the delivery of judgment by the Community Court. Their discussion in the abstract would not enhance any clarity on the legitimate jurisdiction of the courts. Finally, the key motive for the proposal of an amendment on the Supplementary Protocol dealing with the jurisdiction of the court is the question of admissibility of cases on Human Rights before local remedies are exhausted. The issue of exhausting local remedies has been a subject of debate in human rights jurisprudence. Article 56 of the African charter on Human and Peoples’ Rights is quite explicit on this. It states that communication received shall be considered by the Commission “if they are sent after exhausting local remedies, if any, unless it is obvious that this procedure is unduly prolonged” It is obvious that the Community Court does have powers to determine admissibility and may consider any evidence that deals with the possibility of exhausting local remedies. What the community has done is not to make it obligatory to the court to wait for the exhaustion of local remedies to hear cases as long as a particular case is not before any national adjudicating authority. This is in line with article 34 of the Supplementary

Protocol on Democracy and Good Governance which states that “ member States and the executive Secretariat shall endeavour to adopt at the national and regional level, practical modalities for the enforcement of the rule of law, Human Rights, Justice and Good Governance.” Needless to say, in coming up with the supplementary protocol to give the Community Court power to hear cases relating to violation of Human Rights, the latest instrument which is what is applicable, does not restrict the jurisdiction of the Court by making reference to exhaustion of local remedies which is too vague to be given concrete nature and form. In this respect any proposal for an amendment of the supplementary protocol would amount to an exercise in futility. Allow me to recall that the Gambia Government is a signatory to the Supplementary Protocol ASP.10105 in 2005. It states in Article 9 (4) that “the court has jurisdiction to determine cases of violation of human rights that occur in any member state” Article 10 (d) adds that “access to the court is open to the following individuals on application for relief for violation of their human rights, the submission of application for which shall i. not be anonymous ; nor ii. be made whilst the same matter has been instituted before another international court for adjudication.” This is the will of the Community of West African States. This provision should not be amended unless the Community Court is shown to have abused its powers. To conclude allow me to reiterate that if any Government is aggrieved by any decision of the Court it should apply on time to the Court for a review. I hope the views expressed will open up a debate on the future of the West African Community and restore the long held Pan African view that Government should exist for the people and not the people for the Government. All amendments to Community instruments should be in the enlightened interest of the people of West Africa and Africa in particular and the World at large. History is recording the events and posterity shall be the judge. Yours in the Service of the People Halifa Sallah Director