The Economic Community of West African States (ECOWAS/CEDEAO) is well known for its military intervention in Liberia and Sierra Leone. ECOWAS was created in 1975 to replace the Customs Union of West African States originally created in 1959 to redistribute customs duties collected by the coastal states of West Africa. The Treaty on the Economic Community of West African States was revised at the Cotonou Summit of July 1993 to replace the inexistent Tribunal originally envisioned with a Community Court of Justice.

Although the revision of the Treaty (including the addition of the Court of Justice) was intended to help the Organization meet its goal of economic union, it was clear that the Member States did not desire the Court to be an engine for realizing this goal. While the Revised Treaty entered into force in 1995, the judges of the Community Court of Justice were not appointed until January 30, 2001. Further, the operationalized Court had one stringent limitation on the impact it could have in the Community: a narrow field of access. Only the Authority of Heads of State and Government (the executive of the Community comprised of all the Member States) and the Member States acting individually were permitted to initiate a contentious case in the Court. The power to request advisory opinions on the Treaty was limited to the Authority, the Council of Ministers, Member States, the Executive Secretary and other institutions of the Community. The effect of this limited standing in the Court was that until 2003, the Court was idle.

The Court is composed of seven judges appointed by the Authority of Heads of State and Government from a list of up to two persons nominated by each Member State. It received its first case in 2004. This landmark first case (Olajide Afolabi v. Federal Republic of Nigeria) was filed by an individual businessman against the government of Nigeria for a violation of Community law in the closing of the border with Benin. The Court ruled that under the Protocol only Member States could institute cases. The Court’s ruling began a discussion, headed by the Judges themselves, over the need to amend the Protocol to allow for legal and natural persons to have standing before the Court.

In January 2005, the Community adopted the Additional Protocol to permit persons to bring suits against Member States. Beyond this monumental change, the Council took the opportunity to revise the jurisdiction of the Court to include review of violations of human rights in all Member States. This language made clear that the sources of law to be applied by the Court under its original Protocol would include not only general principles of international law, but also those in relation to human rights. Additional Protocol A/SP.1/01/05 also adds jurisdiction over any disputes arising under agreements, other than the Treaty, between Member States that so provide.

The Additional Protocol also gave national courts of Member States the right to seize the ECOWAS Court for a ruling on the interpretation of Community law. Previously, the language in the Protocol was unclear as to whether a Member State court could only seize the Community Court of a matter through the auspices of the national government. Further changes are expected, with the Court having been previously scheduled to add an appellate division in January 2007.

Since the adoption of the Additional Protocol, the Court has received several cases from individuals and the institutions of the Community itself. Notably, the Court has been seized by Nigerian politicians complaining of violations of their human rights in the determination of election outcomes. The Court’s handling of these cases has been controversial in Nigeria, as some in the Nigerian legal community believed that the Court should have rejected them immediately, without issuing interim orders. While this increase in the caseload of the Court is encouraging, the Court’s future as an engine for integration across the Community remains in question due to the fact that the cases being brought are from Nigeria alone rather than other Member States.  Further, the President of the Court has noted that the accessibility and cost of  bringing cases to the Court continue to be a barrier to the Court’s success, in addition to its inadequate human, financial and material resources. Nonetheless, between January 2006 and June 2007, the Court received 26 applications and held 63 sessions.

Following the Additional Protocol, the Court underwent further changes to its position within the Community.  In June 2006, the Authority of Heads of State and Government decided to establish a Judicial Council of the Community with responsibility for recruiting judges for the Community Court and handling judicial matters, including a restructuring of the Court.

Reproduced from AICT website