By Innocent Anaba
Socio-Economic Rights and Accountability Project (SERAP) and the Centre for Defence of Human Rights and Democracy in Africa (CDHRDA) have asked the ECOWAS Court of Justice sitting in Abuja,Â to stop the Gambian government and the ECOWAS Commission from amending the laws concerning the jurisdiction and access to the Community Court.
The Gambian proposals, which have been submitted to the (SERAP and which are being discussed by the Commissionâ€™s experts in Abuja, calls for the inclusion of a requirement for a petition for violation of human rights to the Court to exhaust domestic remedies (in individual member country) before the matter is taken to the Community Court of Justice; and to limit the jurisdiction of the Court with regard to human rights to treaties already ratified by the Member State before the Court. The proposals also want the amendment of Article 76(2) of the Revised ECOWAS Treaty to create an appeal procedure for all decisions of the Community Court.
SERAP and CDHRDA in the suit, are challenging the legality and propriety of the Gambian proposal.Â According to the groups, â€œthe proposal to make access to the Community Court of Justice subject to exhaustion of local remedies will limit access of the Community citizens to the Court with respect to the protection of human rights and weaken the ability of the Court of Justice to effectively exercise its jurisdiction and to advance the objectives and fundamental principles of the Community.
The proposal is also retrogressive and inconsistent with the flexible and progressive interpretation of the rule of exhaustion of domestic remedies as reflected in international legal jurisprudence.â€
â€œThe proposal by the Gambia to amend Article 76(2) of the Revised ECOWAS Treaty to create an appeals procedure for all decisions of the Community Court while the decision of the 56th Ordinary Session of the Council of Ministers directing the ECOWAS Commission and Court of Justice to study the proposal is still pending and yet to be implemented, is unlawful in that it undermines the fundamental principles of the Community, and violates the Gambian obligations under the Treaty, including requirements for all Member States to comply with decisions and regulations of the Council, and to refrain from any action that may hinder the objectives of the Community.
It will seriously prejudice the outcome of the study by the Commission and the Court and will undermine and render nugatory the decision and authority of the Council of Ministers, especially under Article 10 of the Revised ECOWAS Treatyâ€, the groups added.
According to the groups, â€œthe proposals by The Gambia amount to a serious breach of the international obligation of good faith, given that The Gambia continues to refuse and/or neglect to comply with the July 2008 judgement and orders of the Community, including the decision ordering the Gambian government to release Chief Ebrima Manneh, a former reporter from the Daily Observer who was arrested in 2006, and to pay him USD 100,000.
Under Article 15 of the Revised ECOWAS Treaty the ‘Judgements of the Court of Justice shall be binding on the Member States, the Institutions of the Community and on individuals and corporate bodies’. Therefore, the persistent failure by The Gambian government to comply with the decisions of the Court is a breach of this provision,â€ the groups further argued.
The groups also contend that â€œalthough amendment of Treaties is a sovereign function, Treaties differ in their context and objectives and as such should be interpreted in the context of the same.Â Furthermore, Article 13 of the Revised ECOWAS, which creates the Community Parliament, implies that the Treaty shall be people-driven and people-centred.
Under international law sovereignty is not unlimited and is not a license to violate regional or international law. Because the Revised ECOWAS Treaty and the Supplementary Protocol are special treaties, states parties surrendered a great deal of sovereignty when they decided to ratify them.â€