A Case for Revising the Court’s Rules on the Review of its Decisions

Abdulmalik Bello, Legal Officer, IHRDA

1. Introduction

Jurisdiction, generally, is the power or authority conferred by law or treaty on a court or quasi-judicial body[1] to adjudicate on a case.[2] There are four broad forms of jurisdiction: subject-matter or material, personal, territorial, and temporal.[3] Accordingly, in determining its competence to adjudicate a matter, a court must ordinarily consider the questions: What is the nature of the case? Who is the complainant, and against whom has the complaint been filed? Where did the relevant events occur? And when did the events take place? The focus of this discussion shall be on the temporal jurisdiction of the Community Court of Justice of the Economic Community of the West African States (ECOWAS Court). The Court has consistently maintained, and rightly so, that based on the principle of non-retroactivity of treaties, its temporal jurisdiction is limited to facts that occurred after 19 January 2005. This is the date of the provisional entry into force of the Supplementary Protocol A/SP.1/01/05, which conferred jurisdiction on the Court in matters of human rights, unless the alleged violation is continuing.[4]

In October 2024, the ECOWAS Court delivered a ruling in the case of Global Justice and Research Project & 3 Others v. Liberia,[5] where it declared that it lacked temporal jurisdiction. Just five months down the line, in February 2025, the Court declared in another ruling that it had temporal jurisdiction in Khalifa Abiola and others v. Nigeria;[6] a case that had almost similar facts to the Global Justice and Research Project’s case. Surprisingly, the Court’s decision in Khalifa Abiola was squarely based on the legal arguments it rejected in Global Justice and Research Project. Similarly, in March 2026, the Court suo motu addressed and accepted temporal jurisdiction in Ebrima Barrow v. Gambia[7], also based on the same legal reasoning it had rejected in Global Justice and Research Project, without any further or more detailed explanation, even though this was a full-blown judgment, unlike the former two cases that were determined by ruling. This raises the question whether the ECOWAS Court has offered conflicting decisions or reviewed its jurisprudence concerning its temporal human rights jurisdiction, which is the crux of this discussion.

2. Summary of the facts, arguments, and decisions

a). Global Justice and Research Project & 3 Others v. Liberia: This case concerned the massacres of over 600 civilians who sought shelter at the St. Peter’s Lutheran Church on 29 July 1990, during the first and second civil wars in Liberia. The Applicants alleged that the massacres were perpetrated by the Armed Forces of Liberia, and that following the tragic incident, the Respondent failed, refused, and or neglected to investigate and prosecute the perpetrators.[8]

Question of temporal jurisdiction: Since the massacre took place in 1990, a year before the Court’s establishment in 1991 and 15 years before the Court was empowered to entertain human rights matters in 2005, the Respondent objected to the Court’s temporal jurisdiction.[9] The Applicants maintained that the violation is continuing as the case concerned ‘the Respondent’s ongoing failure to investigate and prosecute those responsible for the massacre and not any acts or omissions attributable to the State arising out of the massacre itself.’[10]

The Court’s Decision: Applying the principle of non-retroactivity, the Court declined temporal jurisdiction on the basis that the massacre predated its existence and the grant of its human rights mandate.[11] Most importantly, the Court disagreed with the Applicants’ legal reasoning and maintained that the obligation to investigate and prosecute is an ‘ancillary’ right that cannot exist in isolation from established violations of ‘substantive’ rights under the African Charter on Human and Peoples’ Rights (African Charter). In essence, the Court maintained that it cannot determine the failure to investigate the massacre without first finding a violation of the right to life, and ‘[c]onsequently, where the substantive right is not before the Court or where it is expressly not within its jurisdiction as in the instant case, it is utterly impracticable for the Court to delve into an ancillary claim arising therefrom. The obligation to investigate does not arise in a vacuum. It is founded on other rights as prescribed under the Charter. To this end, for the Court to assume jurisdiction over a matter, it must be established that there was a violation of the right upon which the Court can adjudicate over’.[12]

b). Khalifa Abiola and others v. Nigeria: the case concerns the killing of Mrs Kudirat Abiola in June 1996 by unknown gunmen during her campaign for the unconditional release of her husband, Chief MKO Abiola, who was charged with treasonable felony and imprisoned without trial in solitary confinement by the then military regime in Nigeria under the leadership of General Sani Abacha. The Applicants alleged that the Respondent violated Mrs. Abiola’s right to life by causing her death through its agents and by failing to charge and prosecute the perpetrators.[13]

Question of temporal jurisdiction: Given that the killing of Mrs Abiola took place in 1996, almost 10 years before the Court’s jurisdiction was extended to human rights-related matters, there was apparently the question of the Court’s temporal jurisdiction. However, the Respondent, instead of challenging the Court’s temporal jurisdiction, erroneously attacked the Court’s subject matter jurisdiction by arguing that the subject matter did not fall within the confines of Article 9 of the Protocol of the Court.[14] While ruling on this objection, the Court saw the inevitable need to suo motu address its temporal jurisdiction. The Court had ruled that the objection of the Respondent was erroneous, given that the matter concerned an allegation of human rights violation which the Court apparently has the power to determine in terms of article 9(4) of the Protocol as amended by the 2005 Supplementary Protocol.[15]

The Court’s Decision: On temporal jurisdiction, and relying on its decision in Global Justice and Research Project, the Court stated the non-retroactivity principle to underscore that it lacks temporal jurisdiction to entertain alleged human rights violations that occurred before the critical date of 19 January 2005. The Court, nevertheless, assumed temporal jurisdiction on the basis that, in this case, ‘the crux of the Application is not necessarily the murder of Mrs. Abiola in 1996, an act that was completed before the Court’s human rights jurisdiction became effective in January 2005. Rather, the Applicants’ complaint relates to the Respondent’s failure to fulfil its continuing obligation to hold the perpetrators accountable and provide compensation for the violation, matters over which the Court has jurisdiction’.[16]

3. Conflicting Jurisprudence or Change of Position?

The two cases above share two common facts: first, the substantive act of violation in both cases predated the Court’s human rights mandate. The massacre in the first case happened in 1990, and the killing of Mrs Khudirat Abiola in the second case took place in 1996. Recall that the Court became seized of human rights jurisdiction on 19 January 2005. Second, the issue for determination before the Court in the two cases was neither the massacre in the first case nor the killing in the second case. The subject matter for determination in both cases was the failure of the Respondent States to investigate, prosecute, and punish the perpetrators and provide redress to family members of the victims. In response to the Court’s question of temporal jurisdiction, the Applicants, particularly in the first case, recognized that the substantive act of violation – the massacre – falls outside the temporal jurisdiction of the Court but argued that the continued failure to investigate and prosecute the perpetrators constitutes a continuing violation that triggered the application of the exception instead of the general rule on temporal jurisdiction. The Court decided to apply the general rule in the first case and the exception in the second case.

In Global Justice and Research Project, the Court declined jurisdiction on the analysis that the right to investigate and prosecute is ancillary to the substantive right to life and if the substantive right is not before the Court for determination on the basis that the Court lacks temporal jurisdiction, then it was practically impossible for the Court to determine the ancillary right-related question of failure of the Respondent to investigate and prosecute. Just five months later, the Court accepted jurisdiction in Khalifa Abiola, squarely based on the same legal reasoning it rejected in Global Justice and Research Project. It held that the continuing failure on the part of the Respondent to investigate the violations, prosecute and punish the perpetrators in that case was a ‘continuing violation’ that it has jurisdiction to determine, even though the actual killing, which is the substantive point of violation, was outside its temporal jurisdiction.

The question is, what is the reason and justification for treating the two cases differently, even though they present strikingly similar questions on temporal jurisdiction?  It is grossly insufficient to state the same reason advanced by the Applicants but rejected in Global Justice and Research Project as justification for accepting and exercising temporal jurisdiction in Khalifa Abiola. The Court could have taken the liberty, particularly in the second case, to throw light on how the situation in the first case was different from that in the second case to justify the application of the exception in the second case after applying the general rule in the first, despite similarities. This is especially given that the relevant rulings in both cases were just five months apart, and the Court even cited part of its decision in Global Justice and Research Project in Khalifa Abiola to reiterate its general rule concerning temporal jurisdiction. Regrettably, the Applicants in Global Justice and Research Project are left with the eternal question of how their case differed from Khalifa Abiola’s case to warrant and justify the differences in the Court’s decisions. 

Alternatively, if in the Court’s reasoning the decision in Global Justice and Research Project was made per incuriam or erroneously on any other ground, and the Court decided to exercise its right of review in the Khalifa Abiola’s case and to overrule its previous position in Global Justice and Research Project, the Court could have stated that very clearly and provided reasons and detailed analyses for its change of position, as it did in the Federation of African Journalists and Others v. The Gambia[17] concerning the question of application of statute of limitation in human rights cases.

In Federation of African Journalists and Others, the Respondent argued that the 3^rd Applicant’s action was statute-barred, not having been brought within the three-year limitation period provided by article 9(3) of the Supplementary Protocol 2005. The Court, while examining this objection, referred to the original French version of article 9(3) of the Supplementary Protocol, which did not include actions against member states as being statute-barred after three years. The Court decided that the English interpretation was erroneous and ruled that the French version aligns with international best practices and the practices obtainable in the fundamental rights enforcement procedures of most states, that claims for the enforcement of human rights are exempted from limitation statutes. Accordingly, the Court concluded: ‘Thus the Court holds that the previous decisions of this Court relating to limitation of actions against Member States in human rights cases after three years that the cause of action arose were decided per incuriam, including the recent case of Dorothy Njemanze & 3 ors v. Federal Republic of Nigeria (2017) on this point and are hereby overruled’.[18]

The foregoing lines are particularly golden as the Court eternally laid to rest the question of application of statute of limitation in cases of human rights, having expressly conveyed its decision to overrule its position based on detailed analysis. This approach is efficient and should have been adopted in the cases at hand concerning the temporal jurisdiction question, should the Court’s intention have been to overrule itself.

While rulings are understandably shorter than actual full-blown judgments, only focusing on operative parts of the decision, especially if the Court is not proceeding to the determination of the merits as in Global Justice and Research Project and Khalifa Abiola, the Court had another bite at the question of its temporal jurisdiction very recently in its judgment in Ebrima Barrow v. Gambia (2026)and still proceeded to adoptthe reasoning it earlier rejected in Global Justice and Research Project, without acknowledging the analytical problem in Global Justice and Research Project or explaining better the factual or legal differences that justify the differences in the holdings.The jurisprudence in Ebrima Barrow endorses the Court’s position in Khalifa Abiola. The Ebrima Barrow judgment is yet another missed opportunity to offer clarification as to the shift from the position in Global Justice and Research Project.

4. Concluding reflections

The Court’s decision in the cases of Khalifa Abiola and Ebrima Barrow to recognize the failure of the Respondent States to investigate, prosecute and punish perpetrators, and provide redress to victim(s) as a ‘continuing violation’ that qualify as an exception to the general rule of non-retroactivity of the Court’s temporal jurisdiction, regardless of the date that the substantive violation took place, is progressive, rights-centered, fair and a welcome development. The failure to investigate itself continues to constitute a default of obligation on the part of a State, especially in terms of Article 1 of the African Charter. It should therefore be actionable at any point regardless of the date of the substantive violation, until the obligation is fully discharged through investigation, prosecution, and punishment of perpetrators and provision of redress for victim(s), as the Court has rightly held. Hence, that is not the point of concern at all.

However, the Court has an obligation to make detailed clarification whenever it decides to move away from a position it formerly held in any case, especially where, as in Global Justice and Research Project and Khalifa Abiola, the facts and circumstances are strikingly similar. This is to ensure fairness to all Applicants in terms of Article 3 of the African Charter, which guarantees equality of all before the law and equal protection of the law. This is also important in view of the finality of the decisions of the ECOWAS Court, as there is no provision for an appeal procedure. It is encouraging when the Court decides to overrule itself and adopt a more progressive position, but this must be done in a clear way so as to avoid conflicting jurisprudence, or even the perception of it. The principle of judicial precedent demands that there be clarity.

For the Applicants in Global Justice and Research Project, the immediate recourse point would have been to apply for review of the Court’s decision in that case. However, this is practically difficult, if not impossible, given that applicants are only allowed to approach the ECOWAS Court for review under Article 27 of the ECOWAS Court’s Protocol in very limited circumstances. According to the provision, such an application may be made ‘only when it is based upon the discovery of some fact of such a nature as to be a decisive factor, which fact was, when the decision was given, unknown to the Court and also to the party claiming revision, provided always that such ignorance was not due to negligence.’ In this regard, the subsequent developments reflected in Khalifa Abiola v. Nigeria and Ebrima Barrow v. The Gambia would not satisfy the requirements for revision. At most, those decisions constitute a shift or evolution in the Court’s jurisprudence concerning temporal jurisdiction rather than the discovery of a new fact within the meaning of Article 27. Consequently, these decisions might not serve as a basis for the Applicants in Global Justice and Research Project to seek review of the ruling.

Nevertheless, this situation exposes a significant limitation in the Court’s procedural regime and raises legitimate questions regarding fairness, consistency, and legal certainty. It may therefore be worth considering whether the scope of the review procedure should be expanded to permit revision where the Court subsequently adopts a materially different legal position in strikingly similar cases, particularly where such occurs within a relatively short period after an adverse decision. Such a reform could help mitigate the risk of unequal treatment between litigants whose cases turn on substantially identical legal questions.

About the author:
Abdulmalik Bello is a Legal Officer at the Institute for Human Rights and Development in Africa (IHRDA). He holds an MSc in International Human Rights Law from the University of Oxford and an LLM in Human Rights and Democratisation in Africa from the University of Pretoria, and has extensive experience in strategic litigation before regional human rights mechanisms.

[1] Especially in the context of the African regional human rights system including the African Commission of Human and Peoples’ Rights and the African Committee of Experts on the Rights and Welfare of the Child.

[2] Isaac Mensah and Others v. Ghana (2024) Judgment No. ECW/CCJ/JUD/30/24, para 46.

[3] Incorporated Trustees of Prince and Princess Charles Offokaja Foundation, Nigeria and Another v. Nigeria, ECW/CCJ/JUD/09/24, para 66.

[4] Alhaji Hammani Tidjani v. Nigeria and others (2007) Judgment No ECW/CCJ/JUD/04/07, para 16 – 18; SERAP V Federal Republic of Nigeria (2012) Judgment No. ECW/CCJ/JUD/18/12 para 58-60; Mado Fidegnon Frederic V. State of Togo, ECW/CCJ/JUD/21/22 @ PG. 24 para 131-132.

[5] Ruling No. ECW/CCJ/RUL/04/24.

[6] Ruling No. ECW/CCJ/RUL/01/25.

[7] Judgment. No. ECW/CCJ/JUD/09/26.

[8] Paras 8 & 9.

[9] Paras 20 and 26.

[10] See paras 27 and 42.

[11] Specifically, paras 28 – 41.

[12] Para 52.

[13] Para 4 of the Ruling.

[14] Para 29 of the Ruling.

[15] Para 31 and 32 of the Ruling.

[16] Para 33 of the Ruling.

[17] Judgment No ECW/CCJ/JUD/04/18, pg. 22

[18] As above