Litigating at the ECOWAS Community Court of Justice
Module 6: Litigating Digital Rights Cases in Africa
Example of cases before the ECOWAS Community Court of Justice
A challenge was brought against The Gambian Criminal Code which created criminal offences for sedition, false news, and criminal defamation. Several journalists had been arrested and charged as a result of the Code. They argued that this limited their freedom of expression. The Federation of African Journalists, as well as three nationals of The Gambia who were living in exile due to fear of persecution as a consequence of their work as journalists, approached the ECOWAS Court seeking the following relief:
- Declaratory relief that The Gambia, in enforcing statutory provisions of the Criminal Code, violated the following rights:
- The right to freedom of opinion and expression under article 9 of the African Charter and article 19 of the International Covenant on Civil and Political Rights (ICCPR).
- The right of journalists under article 66(2) of the Revised ECOWAS Treaty.
- The right to liberty and security under article 6 of the African Charter and article 9(1) of the ICCPR.
- The right of Gambian citizens to return to The Gambia under article 12(2) of the African Charter and Article 12(4) of the ICCPR.
- A declaration that in subjecting the fourth applicant to torture or other cruel, inhuman or degrading treatment or punishment, and causing him physical harm, psychological and emotional injury, The Gambia acted in violation of his human rights, the right to freedom from torture and other cruel, inhuman or degrading treatment or punishment under article 5 of the African Charter and article 7 of the ICCPR.
- A declaration that in maintaining the statutory provision The Gambia had continued to act in gross violation of the applicants’ rights and in breach of their obligations under the Revised Ecowas Treaty, African Charter and the ICCPR.
- An order mandating and compelling The Gambia to repeal the relevant statutory provisions immediately or otherwise amend its laws in order to meet its obligations under international law including under the African Charter, the ICCPR and customary international law.
- An order mandating and compelling The Gambia to effectively enact and implement laws, regulations and safeguards in order to meet its obligations under international law prohibiting torture and other cruel, inhuman or degrading treatment or punishment including under the African Charter, the ICCPR and customary international law.
- An order for reparations, including physical, psychological, social and economic rehabilitation in respect of the violations of the second, third and fourth applicant’s human rights.
Amnesty International, Canadian Journalists for Freedom of Expression, the Committee to Protect Journalists, Freedom House, Pen International, Reporters without Borders and the Right2Know Campaign brought an application to join the proceeding as amici curiae.
In 2018, the ECOWAS Court made a finding that it had jurisdiction to entertain the matter, despite a preliminary objection by The Gambia. In its decision on the merits, the ECOWAS Court found that:
- The enforcement of the impugned statute violated rights of the applicants under articles 6, 9 and 12(2) of the African Charter, articles 9, 12(4) and 19(2) of the ICCPR, and article 66(2)(c) of the Revised ECOWAS Treaty.
- Subjecting the applicants to torture, inhuman and degrading treatment violated their rights under article 5 of the African Charter and article 7 of the ICCPR.
The ECOWAS Court reasoned that the imposed criminal sanctions were disproportionate and not necessary in a democratic society where freedom of speech is a guaranteed right, and ordered that the legislation be reviewed. The Criminal Code was found to be overbroad and would “cast excessive burden upon the applicants in particular and all those who would exercise their right of free speech and violates the enshrined rights to freedom of speech and expression under Article 9 of the African Charter, Article 19 of the ICCPR and Article 19 of the UDHR”.
The Gambia was ordered immediately repeal and/or amend the Criminal Code in line with its obligations under international law, especially article 1 of the African Charter, the ICCPR and the ECOWAS Revised Treaty. The Gambia was further ordered to pay damages to the applicants for the violation of their rights.
Overview of the ECOWAS Community Court of Justice
The ECOWAS Community Court of Justice (ECOWAS Court) is the judicial body of the Economic Community of West African States (ECOWAS). The ECOWAS Court was established in terms of the Revised Treaty of the ECOWAS (ECOWAS Revised Treaty). The mandate of the ECOWAS Court includes ensuring the observance of law and of the principles of equity in the interpretation and application of the provisions of the Revised Treaty and all other subsidiary legal instruments adopted by ECOWAS. It serves the ECOWAS member states: Benin, Burkina Faso, Cape Verde, Cote d’Ivoire, The Gambia, Ghana, Guinea, Guinea-Bissau, Liberia, Mali, Niger, Nigeria, Sierra Leone, Senegal, and Togo. The ECOWAS Protocol, the ECOWAS Supplementary Protocol, and the Rules of the Community Court of Justice (Rules) provide guidance on the procedures of the ECOWAS Court.
Stage 1: Application to the Tribunal
Cases are to be filed before the Court through written applications addressed to the Registry. Article 11 of the ECOWAS Protocol requires that an application addressed to the Registry must set out the subject matter of the dispute, the parties involved, and a summary of the argument. Rule 33 specifically requires:
- The name and address of the applicant.
- The designation of the party against whom the application is made.
- The subject-matter of the proceedings and a summary of the pleas in law on which the application is based.
- The form of order sought by the applicant.
- Where appropriate, the nature of any evidence offered in support.
Stage 2: Standing
The ECOWAS Court has fairly broad standing provisions. Article 10 of the Revised Treaty provides that the following litigants may approach it:
- Member states.
- The Executive Secretary (now the President of the ECOWAS Commission).
- The Council of Ministers.
- Community Institutions.
- Corporate Bodies.
- Staff of any Community Institution.
- National Courts of ECOWAS Member States.
Despite this covering a wide range of potential litigants, adherence to the standing provision is strictly applied by the ECOWAS Court. In Ocean King v Senegal, the ECOWAS Court found that “an applicant will lack the requisite standing to bring a claim to the Court for determination if the issue raised does not fall within those over which they have been granted the right of access.”
Note on amici curiae at the ECOWAS Court
The ECOWAS Protocol and the Rules do not explicitly provide for amici curiae briefs. However, as discussed above, in Federation of African Journalists, interveners were accepted as amici curiae. In that matter the Court granted an application in terms of article 89 of the Rules, allowing the NGOs to join the suit as interveners/ amici curiae.
Accordingly, a party interested in being admitted as amicus curiae should follow the rules applicable to interveners before the ECOWAS Court per Chapter III of the Rules. Rule 89, in particular, notes that an application to intervene must be made within six weeks of the publication of the notice of an application initiating proceedings. The application must contain:
- The description of the case.
- The description of the parties.
- The name and address of the intervener.
- The intervener’s address for service at the place where the ECOWAS Court has its seat.
- The form of order sought, by one or more of the parties, in support of which the intervener is applying for leave to intervene.
- A statement of the circumstances establishing the right to intervene.
The application must be served on the parties. The President will give the parties an opportunity to submit their observations before deciding on the application, whereafter the President will refer the application to the Court to determine if the application to intervene should be granted.
Stage 3: Jurisdiction
Article 9(4) of the ECOWAS Protocol, as amended by the ECOWAS Supplementary Protocol, formally recognises that the ECOWAS Court “has jurisdiction to determine cases of violation of human rights that occur in any Member State”. Article 10(d) of the ECOWAS Supplementary Protocol states that access to the ECOWAS Court is open to “[i]ndividuals on application for relief for violation of their human rights.”
The ECOWAS Court can exercise jurisdiction in the following ways:(1)
- Ratione personae: Any individual alleging a violation of human rights committed in any member state may bring a case before the ECOWAS Court. Applications from organisations acting on behalf of a group of people whose rights have been violated can also be accepted.
- Ratione temporis: Human rights cases must be brought within three years of the cause of action arising. In instances where violations are ongoing, it will give rise to a cause of action die in diem (day in and out) and postpones the running of time.
- Ratione materiae: The ECOWAS Court has jurisdiction over all human rights violations that occur in the jurisdiction of members of ECOWAS.
Stage 4: Admissibility
Admissibility at the ECOWAS Court is not as strictly applied as it is in the other courts; however, it is important to note that applications that are brought cannot be pending before another court of similar status. The ECOWAS Court does not require the exhaustion of domestic remedies but will neither hear matters that have been determined on the merits by domestic courts nor does it hold appellate jurisdiction over domestic courts.
Stage 5: Proceedings
Rule 35 prescribes that once an application has been filed, the defendant has a month to lodge his or her defence. The ECOWAS Court will then, per rule 39, issue a preliminary report containing recommendations as to whether a preparatory inquiry or any other preparatory step should be undertaken. The ECOWAS Court may, per rule 43, either at its discretion or on application by a party, order that witnesses prove certain facts. Once the ECOWAS Court is satisfied with all the preliminary inquiries the matter will go to oral proceedings.
Cases that need to be dealt with as a matter of urgency
Chapter IV of the Rules provides for expedited procedures. Cases can be determined pursuant to an expedited procedure derogating from the provisions of these Rules, where the particular urgency of the case requires the ECOWAS Court to give its ruling with the minimum delay. An urgent application needs to be lodged in a separate application along with the application initiating proceedings. The ECOWAS Court will provide all parties with an opportunity to present their arguments and will then deliver its ruling.
Stage 6: Remedies
The ECOWAS Court will issue a judgment once it has finalised the matter, it shall include the grounds for the decision and the operative part of the judgment, including the decision as to costs. This is done in terms of rule 60 of the Rules. The remedies available to the ECOWAS Court are similar to those offered at a domestic level. Remedies can include declarations and mandatory orders. The ECOWAS Court does not have scope to create remedies and is accordingly limited to base the remedy on what was put before it by the parties.
Stage 7: Enforcement
The judgments of the ECOWAS Court are binding. Member States are required to take immediate steps to comply with the remedy. Despite this, concerns have arisen regarding the legitimacy of the enforceability of the ECOWAS Court. Olisa Agbakoba Legal has noted that:
“[E]nforcement of judgments of the ECOWAS Court has been a major problem and this relates to the fact that neither the ECOWAS Revised Treaty, Supplementary Protocols or other legal instruments make provisions regarding the means of enforcing the issued writ of execution where Member States fail to voluntarily comply with the terms of the judgments of the Court. However, Article 77 of the ECOWAS Revised Treaty empowers the authority of heads of state and government of ECOWAS to impose certain sanctions on any member state who fails to fulfil its obligations to the community through suspension of new community loans or assistance, suspension of disbursement on on-going community projects or assistance programmes, exclusion from presenting candidates for statutory and professional posts and suspension from participating in the activities of the community.
This power is however yet to be exercised by the apex organ of ECOWAS. Thus, unless Member States are compelled to comply with the judgments of the ECOWAS Court, the confidence in the Court will completely be eroded so much so that the Court may be unable to entertain any applications from any person in respect of the violations of the fundamental rights of the citizens of ECOWAS.”
Practicalities of litigating before the ECOWAS Court
There are two notable challenges that ought to be taken into account by potential litigants:
- Establishing jurisdiction at the ECOWAS Court.
- Competing competencies between the ECOWAS Court and national courts appear to have also caused some concern.
The expanded jurisdiction that accompanied the Supplementary Protocol seems to have created some tension between the ECOWAS Court and its domestic counterparts. Despite seeking to make the ECOWAS Court more accessible, it has to some extent complicated the jurisdictional requirements that ultimately create access.(2)
Impactful cases on digital rights at the ECOWAS Court
In recent years, the ECOWAS Court has become more outspoken on issues of digital rights and has made a number of ground-breaking judgments in this area:
In August 2017, Togo cut off internet access in an effort to disrupt planned protests about the President’s seeking a third term in office. A number of NGOs based in Togo, and a local journalist, applied to the ECOWAS Court alleging that the internet shutdown was a violation of the right to freedom of expression contrary to Article 25 of the Togolese Constitution and Article 9 of the African Charter on Human and People’s Rights. As described by the Columbia Global Freedom of Expression case law database,
“The Court found that access to the internet is a “derivative right” as it “enhances the exercise of freedom of expression.” As such, internet access is “a right that requires protection of the law” and any interference with it “must be provided for by the law specifying the grounds for such interference.” [p. 11] As there was no national law upon which the right to internet access could be derogated from, the Court concluded that the internet was not shut down in accordance with the law and the Togolese government had violated Article 9 of the African Charter on Human and Peoples’ Rights. The Court subsequently ordered the Respondent State of Togo to take measures to guarantee the “non-occurrence” of a future similar situation, implement laws to meet their obligations with the right to freedom of expression and compensate each applicant to the sum of 2,000,000 CFA (approx. 3,500 USD)”.
In a prominent recent example of content blocking, the federal government of Nigeria in 2021 suspended social media site Twitter after it removed content posted by President Muhammadu Buhari threatening to punish regional secessionists, prompting telecommunications companies to block access to users in Nigeria. The ban was in place for seven months before Twitter agreed to several of the government’s demands, including opening a local office in Nigeria.
The ban was declared unlawful by the ECOWAS Community Court of Justice in a case brought by the Socio-Economic Rights and Accountability Project (SERAP) and joined with other similar cases. The Court held that access to Twitter is a “derivative right” that is “complementary to the enjoyment of the right to freedom of expression” and, therefore, that the ban violated the right to freedom of expression, access to information and the media, and ordered the government to prevent such a repetition. Media Defence and Mojirayo Ogunlana-Nkanga represented the applicants.