The Court of Justice of the Economic Community of West African States as a Constitutional Court

Front matter

| Kangnikoé Bado The Court of Justice of the Economic Community of West African States as a Constitutional Court

| Member States obligations resulting from the Court’s rulings

Open Access - IG} = http://www.nomos-elibrary.de/agb

Preface

Almost two years after the publication of the first edition in German, I am delighted to be able to present this English edition which aims at meeting the need to reach broader audience. In this respect, I owe my particular gratitude to Birgit Böttner, Leonie Spangenberger und Prof. Dr. Andre Thomashausen who were entrusted with the translation.

Substantially the topical issue remains, in my view, relevant and pertinent as it did in 2015 when I have completed the researches, since the court is always confronted by the problematic at the centre of this reflection and its jurisprudential practice has not really changed until now. The examination at hand broaches the subject of a supra-constitutional function of the Court of Justice of the Economic Community of West African States (ECOWAS). . A particular source of inspiration for this book has been the research project “Constitutional Jurisdiction and Democratisation in West Africa” financed by the German Research Foundation (DFG). Although I became a Member of the project team rather late, the work within the project inspired me to think about the role of the ECOWAS Court of Justice. For example, I refer to the decision in Ameganvi et al vs. Togo and its relevance for the relationship between the regional courts and the courts of the Member States, in particular, the Constitutional Courts. I especially wanted to show the development of human rights jurisdiction since the inception of the additional protocol in 2005 and on this basis the possible individual complaints before the Court of Justice. based on recent developments in international law, my main objective is to clarify all the legal consequences arising from this extension of competence of the Court, in particular with regard to the international responsibility of member states in the event of human rights violations. Moreover, this paper aims to examine the constitutional implications of this reform and the guarded use by the court of its own competence.

Finally, I would also like to contribute to the reduction of the deficit of legal protection within the Economic Community of West African States by strengthening the constitutional role of the ECOWAS Court of Justice. According to my thesis, the declaratory judgments by the Court of Justice should be able to unfold their legal force in the signatory-countries to their fullest extent.

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Preface

During the preparation of this research, which was completed in December 2015 and accepted by the Justus-Liebig-University of Gießen’s Faculty of Law as a dissertation, I have received support from numerous persons and institutions.

Firstly, I would like to thank my mentor Prof. Dr. Thilo Marauhn for his mentorship during this dissertation. I am endlessly grateful for his steadfast trust and patience. The exchange of ideas with him was always effective and constantly resulted in new findings. These exchanges belong to my fondest memories. I would like to thank Prof. Dr. Rainer Grote for contributing a second opinion and for his valuable further inspirations. Furthermore, I would like to thank Prof. Dr. Dres. h.c. Herbert Kronke for his constant support and for being a willing partner for discussion.

I would like to particularly thank Vera Strobel for her support regarding the editorial revision of the German edition.

I would like to thank Prof. Dr. Sven Simon for his tremendous support. I owe my special gratitude to the numerous discussions and professional suggestions. I would further like to extend my sincere thanks to Dr. Ignaz Stegmiller for his critical review of the completed version before the paper went to print.

I would like to sincerely thank professors Adama Kpodar, Joel Aivo, Babakar Kanté and Akuété Santos for their valuable advice during my research trip in West Africa.

Moreover, I would like to thank Dr. Daniel Behailu as well as Katharina Bielka, Dr. Prosper Simbarashe Maguchu, Dr. Wisdom Momodu, Dr. Collins Mbuayang and Dr. Asmin Franziska for the constant exchange of ideas. Similarly, I would like to thank my colleagues Dr. Ayse-Martina Bohringer, Judith Thorn, Joscha Muller, Marie-Christin Stenzel, Dr.Lisa Hemann, Dr. Anne Winter and Chadischa Schöpffer for their collegiality and support. I would like to sincerely thank Ms Ulrike Rein and Ms Susanne Seitz for the friendly environment and their helpfulness within the team of the professorship.

Furthermore, my circle of friends in Germany has contributed considerably to the realisation of this paper. I would like to thank my friends Fabian Kiehlmann, Edem Atsiatorme, Juliane and Cornelia Glinz as well as Vera Bense, Fanny Raisch, Robin Azinovic, Gabriel Noll, the Degbè family (Brussels), the Doglo family and the Tèko family.

This work presented thrilling scientific challenges for me. The handling of these would not have been possible without the support of my family. In particular, I owe my brothers Ekoé Richard and Messanh Nicolas as

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Preface well as my sisters Marie Povi and Ayelevi endless gratitude for giving me strength through their continued support and encouraging words.

Amongst various instutitions which I would like to thank, I owe my thanks first and foremost to the Konrad-Adenauer Foundation which not only financed significant part of my researches in Germany but also covered the costs of translation and publication of the English edition of the manuscript. I must acknowledge my sincere thank to Dr. Arne Wulff who has been available to coordinate the English translation and publication of this work. Moreover, I am genuinely grateful to Ms Anja Berretta’s and Mr. Berthold Gees’ for their understanding during my scholarship period at the Konrad-Adenauer foundation. In the same manner, I owe gratitude to the Max Planck Institute for Social Law and Social Policy and the Max Planck Society for making the Open Access publication of this Book possible. Furthermore, I am also grateful for the German Research Foundation’s (DFG) interest in the legal developments in Africa and for their funding.

I would also like to thank the Max-Planck Institute for Comparative Public Law and International Law (Heidelberg) for making their library available to me. Besides, I would like to thank Mr. Albrecht Gunther of the branch library for Law and Economy for his assistance in trying to locate documents that were not available in Gießen. My sincere thanks go to the library manager, Mr. Vincente Mendes Correia, for giving me access to the ECOWAS-Court of Justice Library and for making numerous official documents by the ECOWAS Community.

This dissertation is dedicated to my sisters Kayi and Tsotso.

Kangnikoé Bado Munich, in the spring of 2019

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Abstract

Whereas the Court of the Economic Community of West African States (ECOWAS) had originally been established to address matters of regional integration only, it has been tasked to rule on human rights violations since 2005. This has led to jurisdictional conflicts between national (constitutional) courts of ECOWAS member states and the Court itself. This study analyses the relationship between the national and the regional level, and develops proposals on how to overcome such jurisdictional conflicts. This thesis is based on the ruling of the Constitutional Court of Togo N °E-018/10 of 22 November 2010 and the position of the ECOWAS Community Court of Justice, N°ECW/CCJ/JUG/09/11 of 7 October 2011 and N °ECW/CCJ/JUG/06/12 of 13 March 2012, concerning the aforementioned ruling of the Constitutional Court of Togo. The thesis is an attempt at finding an answer to the question as to whether the judgments of the Court carry a binding effect within the Member States and particularly on judgments of constitutional courts.

This work explores real and potential tensions within the ECOWAS legal order. The tensions stem from the legal force of judgments of constitutional courts of Member States and the admissibility of individual petitions before the Court according to Art. 9.4 and 10.d of Supplementary Protocol A/SP.1/01/05 Amending the Protocol A/P.1/7/91 Relating to the Community Court of Justice. Since the binding effect of the rulings of the Court is not clearly defined, Member States resist implementing the Court’s decisions particularly in constitutional matters. Pursuant to article 9.4 of the aforementioned supplementary protocol the Court has authority to examine the conformity of the actions of Member States‘ institutions with the African Charter on Human and Peoples’ Rights whether the organ exercises legislative, executive, and judicial or any other similar functions. However, it is interesting to note that the decisions of Constitutional Courts or Supreme Courts of ECOWAS Member States are final and not subject to further appeal. It is true that a Constitution and decisions of Constitutional Courts express the sovereignty of a state. Nevertheless Art. 27 of the Vienna Convention on the Law of Treaties forbids the states to invoke their national law to hinder the implementation of their international obligations. To that extent the res judicata is not a valid argument to hinder the implementation of the Court’s rulings. Then a state party en-

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Abstract dorses the obligation of restitution in integrum according to international customary law and judicial precedents of the International Court of Justice. Moreover, according to international customary law, all organs of the state involved in a case are bound by the rulings of the Court. Constitutional Courts are state organs. Hence, they are also bound by the findings ofthe ECOWAS-Court.

This work also identifies some deficiencies in the current regime of the human rights mandate of the Court. Gaps exist not only at the level of the Member States constitutional order but also at the community level. At the national level, there are no legal provisions in ECOWAS Member States about the legal force and how the rulings of the Court should be domesticated. At the community level, the binding effect of the rulings of the Court is not adapted to its human rights mandate. With regard to its human rights mandate, the Court plays a role of supranational constitutional court. For instance, the Court is empowered to decide on individual petitions and its rulings are final and binding. For a better compliance with the judgments of the Court, this thesis suggests innovative remedies to render national legislation adequate to the human rights mandate of the ECOWAS Community Court of Justice. Some of the key remedies proposed in the thesis include the following: the Court should be empowered to order concrete measures about how its rulings should be implemented. Art. 15 par. 4 of the Revised Treaty should be adapted to extend the jurisdiction of the Court; a Committee should be created to work with the Court about the implementation of its rulings; Member States should provide exceptional provisions that permit a new enrolling of a case after the rulings of the Court, as available in many Member States of the European Council, and particularly kindred to Art. 122 of the Constitutional Process Law of Switzerland.

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List of Abbreviations Introduction

A. The ECOWAS Court of Justice as an International Court B. The Jurisdiction of the Court of Justice

C. In particular: the Jurisdiction of the Court with regards to Human Rights since the Inception of the Additional Protocol of 2005

D. Reason for the Study: The Case of Ameganvi et al vs. Togo I. Decision by the Togolese Constitutional Court II. Declaratory Judgment by the ECOWAS Court of Justice III. Interpretation of the Declaratory Judgment by the ECOWAS Court of Justice

E. Binding Force of the Decision by the ECOWAS Court of Justice I. Contractual Foundations II. Teleological Interpretation II. The Problem of National Implementation

A. The Initial Case under Municipal Law

I. Formal Legal Force 1. The Binding Force of Internal Proceedings of the Constitutional Court a. Irrevocability of the Decision in Principle b. Interdiction of deviation c. Possibility of a Rectification of Material Errors d. Resumption due to gross miscarriage of justice

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24 25

41 42

46 46 47

59 59

59 59 61 62 63 e. Delimitation with regard to future disputes

2. The Non-appealability of the Decision a. The principle of non-appealability b. Justification of non-appealability c. Need for legal protection as an exception

II. Substantive Res Judicata

1. Object of Substantive res judicata

2. Elements of Substantive res judicata a. Extent of legal force b. Limits of legal force

3. Consequences of Substantive res judicata a. Substantive res judicata as an obstacle to proceedings b. Admissibility in the presence of new causes of action

C. The Binding Effect of the Decision I. Erga-omnes-Effect II. Inter-omnes-Effect 1. The impact of the decision on the facts of the case 2. The material impact of the decision

I. Preliminary Question regarding the Object of the Dispute II. The prohibition of the imperative mandate and declaration of renunciation

B. Role of the ECOWAS Court of Justice as a Constitutional Court I. Articulations of the Constitutional Role of the ECOWAS

Court of Justice

1. Status of the ECOWAS Court of Justice, in particular, its independence

2. Exclusive and ultimate power of decision-making competence

II. Objections with regard to sovereignty

I. Admissibility of the Individual Complaint before the ECOWAS Court of Justice

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86 87

99 109

115 120

II. Object ofthe complaint and those entitled to complain

1; 2.

Those entitled to complain Object ofthe complaint (breach of primary duty, compare Art. 1 ECHR)

I. Declaratory Judgment II. Judgment granting Reparation (Compensation)

1. 2;

Standards of a Judgment granting Reparation Enforcement Procedure

II. Interpretative Judgments IV. Not a Court of Cassation V. Appeal proceedings (de lege ferenda)

E. Legal Force According to Art. 15 of the Amendment Agreement I. Rule of Interpretation of Art. 31 VCLT

1. . Systematic Interpretation

. Historical Interpretation

. Teleological Interpretation

. Principle of effectiveness and evolutive/dynamic nA PP» © D

Literal Interpretation interpretation

IL. Effects of Legal Force of other Regional Human Rights Courts

1. 2. 3. 4.

F. Manifestations of Legal Force of the Judgements of the ECOWAS

East African Court of Justice SADC Tribunal

ECtHR

The Inter-American Court

Court of Justice

I. Formal Legal Force II. Substantive res judicata

1. 2; 3.

Extent of the Legal Force

Objective limit of the legal force

Subjective limit of the legal force

a. Inter-partes-legal force

b. Erga-omnes impact of the legal force in practice Time-boundary of the legal force

III. Legal consequences of the legal force for the convicted signatory state

1:

The obligation to cease and desist

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128 128

145 147 147 150 152 154

162 162 167 170 176

193 193

2. The obligation of compensation a. Order to reinstate the initial proceedings in the operative part ofthe judgement b. Justification of the order to reinstate 3. Obligation to take preventative measures

G. Justification for Breaching the Legal Force: Function to Close Loopholes I. Entry Barriers for individual complaints according to

national law

1. Inadmissibility of a national human rights complaint

2. Strict prerequisites for admissibility for the human rights complaint

3. The ECOWAS Court of Justice as guarantor of the effective protection of human rights

II. Possible Conflict of Interest of the Constitutional Court of

a Member State

1. Elements of the complaint of a conflicted court

2. Conflicted judges as a violation of the positive obligation of the Member State

III. Foreseeable problems of the ECOWAS jurisdiction

1. Challenge to legal certainty

2. Overburdening of the Court of Justice and proposed solutions a. Landmark and pilot judgments as a possible solution b. The solution from the perspective of the national

legal system 3. Dialogue between both levels

A. Preliminary Question: Binding Force of International Law and the ECOWAS Judgments I. Binding Force of the International Law in francophone Member States 1. Question of rank 2. Principle of reciprocity II. Binding Force in Anglophone Member States III. Principle of the convergence of constitutions

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195 196

199 200

203 205

215 215

218 219 219

220 221

224 225

229 229 233 236 240

B. National Articulation of Legal Force I. National procedural binding force 1. Resumption of the initial proceedings a. Prerequisites for a resumption b. Justification of the obligation to resume 2. Declaratory judgment by the ECOWAS Court of Justice as a prohibition of enforcement 3. Effects Transcending the Individual Case 4. ECOWAS Court of Justice Decisions as the basis for QPC II. Effect on all state powers 1. Indirect legal force for all state organs 2. Special binding effect of the Constitutional Court a. The Constitutional Court as a state organ b. Role Model Function of the National Constitutional Court c. The possibility of a judgment in violation of human rights

C. Consequences of Contempt of Judgments of the ECOWAS Court of Justice I. State liability due to a breach of the obligation to

implement

1. Introduction of a new complaint procedure due to a breach of the obligation to implement

2. Enforcement of general state liability law a. Applicability of the general rules of customary

International law b. Sanction mechanisms in the ECOWAS legal order II. Monitoring and Implementation of the Decisions by the

ECOWAS Court of Justice

1. Monitoring of the implementation

2. Status of the implementation according to previous practice by the ECOWAS Court of Justice

Chapter 5 Result and Concluding Comment A. Criticism of the Self-Restraint of the ECOWAS Court of Justice in the Ameganvi et al vs. Togo Case

I. Criticism of the Self-Restraint 1. Legal basis of the self-restraint

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244 244 245 251

253 254

255 262 263 268 269 270

279 280

281 282

284 284

287 287

2. Implied authority 288 3. Development of the law by International Courts 292 II. Criticism from a Constitutional Perspective 294 1. Object of dispute and party to the dispute before National and the ECOWAS Courts of Justice 294 2. Confusion in the Excercise of Jurisdiction 296 3. Confusion regarding the applicable law 298 III. Marge Nationale d’appreciation as a possible Limit to the Empowerment Authority? 301 1. The term marge Nationale d’appreciation 301

2. Appreciation of reverting to the discretion of the state 303 a. Procedural guarantees as a basis for other human rights 304

b. Non-existence of a collision with National interests 317

c. Procedural Guarantees as the resulting obligation 318

B. Concluding Comment 320 Bibliography 335

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List of Abbreviations

ANC AU BVerfGE

CDRF CEDEAO CEDH CHARTA CIJ

CJ CEDEAO CJEU CPJI

ders.

DÔV EAC EAC] ECCJ ECOWAS ECtHR ECHR EuGH EuGRZ EuR

FS

ICJ

ILC

OAU PCY R.Q.D.I SADC UFC VRÜ ZaöRV

Alliance Nationale pour le Changement

African Union

Decisions by the Federal Constitutional Court of the Federal Republic of Germany

Centre de Recherche pour les Droits Fondamentaux Communauté Economique des Etats de l’Afrique de l'Ouest Cour Européenne des Droits de l'Homme

African Charta for Human Rights and Peoples’ Rights Cour Internationale de Justice

Cour de Justice de la CEDEAO

Cour de Justice de l’Union Européenne

Cour Permanente de Justice Internationale

By the same author

Die Offentliche Verwaltung (Legal Journal)

East African Community

East African Court of Justice

ECOWAS Community Court of Justice

Economic Community Of West African States European Court of Human Rights

European Convention on Human Rights

European Court of Justice

European Magazine on Fundamental Rights

Journal on European Law

Commemoratice Publication

International Court of Justice

International Law Commission

Organisation of African Unity

Permanent Court of International Justice

Revue Québécoise de Droit International

Southern African Development Community

Union des Forces du Changement

The Journal “Law and Politics in Africa, Asia and Latin America” Journal for Foreign Public Law and International Law

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