The Njemanze ECOWAS Court Ruling and “Universal” Jurisdiction: Implications for the “Grand African Human Rights System”

–Sègnonna Horace Adjolohoun, Visiting Professor of International Human Rights and Comparative Constitutional Law, Central European University; Extraordinary Lecturer of International Human Rights Law, Centre for Human Rights, University of Pretoria; Principal Legal Officer, African Court on Human and Peoples’ Rights.

Njemanze revives the ECOWAS Court’s jurisdiction paradigm

On 12 October 2017, the Court of Justice of the Economic Community of West African States (ECOWAS Court) delivered a judgment in the matter of Dorothy Njemanze and 3 others v The Federal Republic of Nigeria concerned with abduction and sexual assault on women by police and the military.

Having found that such acts amount to a violation of the Applicant’s human rights, the ECOWAS Court awarded each of the three Applicants damages in the sum of Six Million Naira ($16,500). Even though it was acclaimed among human rights activists and surely does not come as a surprise to those who are familiar with the regional Court,[1] I believe the Njemanze ruling should be interrogated. It is indeed the first judgment ever of any regional adjudicatory body based on the Maputo Protocol on Women’s Rights in Africa. In my view, the judgment revives the debate on whether and how the ECOWAS Court assumed quasi ‘universal’ human rights material jurisdiction and what the related implications are for the African human rights system.

The ECOWAS Court Material Jurisdiction: Granted or Grabbed?

The 2005 Supplementary Protocol was principally aimed at liberalizing access to the ECOWAS Court, which under its 1991 Protocol could only examine individual petitions brought by Respondent states on behalf of their nationals. None of the other counterparts of the Court, such as the East African Court of Justice (EACJ) and the SADC Tribunal, can boast such mandate. For instance, when it was called to examine ‘human rights cases’, the EACJ found, in Katabazi v Uganda, that it lacked such jurisdiction. It is true that the EACJ eventually considered the matter and concluded to the breach of the East African Treaty principle of rule of law.[2] As such, the West African Court cannot be seen to have grabbed what it was not granted by the ECOWAS legislator.

Having said that, the regime appeared to have been delivered unfinished. It provided the ECOWAS Court with no bill of rights where to find the norms against which to vet states’ human rights behaviour. The Court had to fill that gap when a Respondent for the first time challenged its ratione materiae competence in Ugokwe v Nigeria. After agreeing that the regime had no catalogue of rights, the Court observed that by Article 19(1) of its 1991 Protocol, it ‘examines disputes in accordance with the Revised Treaty … and applies, where necessary, the body of laws in Article 38 of the International Court of Justice Statutes’.[3] In a determinative finding, the Court stressed that a cross-reading of the above provisions allowed it to ‘apply general principles recognised by civilised nations’ as well as ‘international conventions, general or particular, … recognised by the contesting states’.[4] Notably, the Court took advantage of the ECOWAS Revised Treaty’s reference to the African Charter on Human and Peoples’ Rights (the Charter) as a standard that shall inform the achievement of community objectives.

In the absence of opposition from Member States, the Ugokwe ruling became what is traditionally referred to as opinion juris communis, that is practice made norm through endorsement by the community.[5] One thing is to ground jurisdiction in an express reference to the Charter in the Revised Treaty and another is to stretch such competence to the international bill of rights and, in Njemanze, to the Maputo Protocol and all other AU human rights instruments by extension.

From the Charter to ‘Universal’ Jurisdiction: Inspiration or Expansion?

Arguably, once it imported the Charter from the Treaty, the ECOWAS Court swiftly stretched the Banjul instrument unlimitedly albeit incrementally. In Koraou v Niger,[6] the Court first expanded its jurisdictional reach to the Universal Declaration of Human Rights (UDHR) (customary law and persuasive soft law) and CEDAW to which it added the International Covenant on Civil and Political Rights (ICCPR) in Hissene Habré v Senegal.[7] Notably, in the post-Ugokwe era, the Court systematically referred first to the Revised Treaty in introducing the operative sections of its judgments.

I propose that the ECOWAS Court obtained by case-law what the African Court was granted in the letter of Article 3 of its Protocol. While it could be argued that the language of ‘shall apply as necessary’ used in Article 38 is different from the ‘draw inspiration’ and ‘take into consideration’ of Article 60 and 61 of the African Charter, an Ugokwe-style construction is possible under the latter. The question is then why the African Commission never did so in over three decades of adjudication. Perhaps, the Commission observed the “agent versus principal” principle or adopted judicial virtues by not stepping into the legislator’s domain?[8] Whatever the case may be, if it is considered as settled that the jurisdictional expansion was jurisprudential, the correlative issue of competition and legal disharmony in the African system remains alive.

Towards a Grand African Human Rights System?

Njemanze is evidence that the ECOWAS Court may as well adjudicate on the African Children’s Charter, which is the sole instrument of a sibling in the system, the African Committee of Experts on the Rights and Welfare of the Child. Granted that both the Banjul Commission and Arusha African Court have express jurisdiction over the Maputo Protocol, Njemanze rings the bell of an actual risk of competition between the four bodies. As such, Njemanze should serve the much broader purpose of re-discussing two issues; one being resolved and the other not.

With respect to the Maputo Protocol, the Commission undoubtedly had contentious jurisdiction until the Court started its operation. In other words, before 2004, the Commission was the only competent body – before 2005 for the ECOWAS Court. As far as the African Children’s Charter is concerned, the ECOWAS Court and African Court have concurrent jurisdiction with the Committee within the limit of their respective operations. To date, all three bodies can hear such cases.

What is less clear is what happens to violations that continued after 2004 and 2005. I propose that the Commission and Court would then have concurrent jurisdiction considering the latter’s position in Norbert Zongo and Others v Burkina Faso.[9]

Furthermore, while the ECOWAS jurisdictional ascension is legally acceptable, it poses a number of challenges to the effective operation of what I refer to as “the grand African human rights system”. Issues arising include duplication of forum, negative forum shopping, challenges in observing the principles of res judicata and lis pendens, conflicts of interpretation and problems of enforcement.[10]

Does such formation of a grand system require a more systematic judicial dialogue?

Suggested Citation: Sègnonna Horace Adjolohoun, The Njemanze ECOWAS Court Ruling and “Universal” Jurisdiction: Implications for the “Grand African Human Rights System”, Int’l J. Const. L. Blog, Nov. 16, 2017, at: http://www.iconnectblog.com/2017/11/the-njemanze-ecowas-court-ruling-and-universal-jurisdiction-implications-for-the-grand-african-human-rights-system

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The views expressed in this paper are solely those of the author and do not represent in any manner the position of the African Court.

[1] See ST Ebobrah, ‘A Critical Analysis of the Human Rights Mandate of the ECOWAS Community Court of Justice’ Research Paper for the Danish Institute for Human Rights (on le with author) (2008); K Alter et al ‘A new international human rights court for West Africa: The ECOWAS Community Court of Justice’ (2013) 108 American Journal of International Law 5-7; SH Adjolohoun, ‘The ECOWAS Court as a Human Rights Promoter ? Assessing Five Years Impact of the Koraou Slavery Judgment’ (2013) 31 Netherlands Quarterly of Human Rights 342–371.

[2] James Katabazi & 21 Others v The Secretary General of the East African Community and the Attorney General of the Republic of Uganda, Reference no 01/2007, decided on 1 November 2007, EALS Law Digest 29.

[3] See Hon. Dr. Jerry Ugokwe v Nigeria (2005) ECW/CCJ/APP/02/05 para 29.

[4] See Ugokwe, para 30.

[5] See how the principle is applied by the Inter-American Court in Baena-Ricardo et al v Panama IACHR Series C no 104 para 102.

[6] (2008) ECW/CCJ/JUD/06/08.

[7] (2010) ECW/CCJ/JUD/06/10, paras 59 and 64.

[8] See R Vaubel, ‘Principal-agent problems in international organizations’, 1 (2006) Rev Int Org 125–138.

[9] (Application 013/2011), Judgment of October 2013.

[10] See SH Adjolohoun, ‘Droits, procédures et mécanismes de protection des droits humains au niveau régional africain’ Presentation at the IHRDA Human Rights Litigation Training for Civil Society (Bamako, 5 – 9 October 2015) (on file with author).