The Time Has Come For Amendment Of Protocols Establishing ECOWAS Court Godfred Dame Speaks
The Attorney General and Minister for Justice, Mr. Godfred Yeboah Dame has emphasized that the time has come for an amendment of the protocols establishing the Economic Community of West African States (ECOWAS) Court to incorporate a requirement for exhaustion of domestic remedies as a precondition for access to the court.
Freeman Koryekpor Awlesu Greater 
The Attorney General and Minister for Justice, Mr. Godfred Yeboah Dame has emphasized that the time has come for an amendment of the protocols establishing the Economic Community of West African States (ECOWAS) Court to incorporate a requirement for exhaustion of domestic remedies as a precondition for access to the court.
The legal luminary stressed that execution of this proposed amendment will realign the practice of the ECOWAS Court with prevailing customary international law and various international treaties supporting litigation before international courts.
Legitimately, he further emphasized that the ECOWAS which is a regional political and economic union of fifteen countries located in West Africa may adopt certain exceptions to the necessity for the exhaustion of domestic remedies.
According to him, these exceptions may be where there is the absence of such domestic remedy, or the same can clearly be shown to be ineffective where the procedure is demonstrably unfair or can be shown to involve undue delays where the available remedy cannot adequately redress the alleged violation.
"As an alternative to the requirement to exhaust domestic remedies (that is, if the Authority of Heads of States is opposed), I will propose the establishment of an appellate division for the Community Court, i.e. another layer for subjecting decisions of the Court to scrutiny," he stressed.
In addition to providing insurance against any serious or grave errors in rulings, he indicated that the creation of an appellate chamber will eliminate the perception of the Court being the “be all and end all” in matters over which it is clothed with jurisdiction.
He urged all member states to support the work of the Court through the institution of a credible procedure for enforcing decisions of the Court in their respective countries.
According to him, by the combined effect of Article 22(3) of the Protocol and Article 24(2) and (3) of the Supplementary Protocol, this ought to be done by the enactment and dissemination of such legislative and statutory texts as are required for the execution of judgments, in order not to render decisions of the court nugatory.
"We have not often fallen foul of the community law, but in one rare instance of the Court awarding judgment for about US$500,000 against her recently, she complied and satisfied same," Attorney General said.
Mr. Dame raised these issues in his remarks when he was addressing the participants in the opening of the External Sitting of the ECOWAS Community Court of Justice held in Accra on Monday, March 21, 2022.
He commended the President of the ECOWAS Community Court of Justice His Lordship Justice Edward Amoako Asante and his distinguished brothers and sisters serving as Justices of the Community Court of West African States for attending the event of the city of Accra, Ghana.
Affectionately christened the “Black Star of Africa”, Ghana - previously known as the Gold Coast, on 6th March 1957, became the first tropical colonial territory both in Africa and the Caribbean in modern times to regain independence from colonial rule and domination.
He pointed out that under the leadership of her first President, Kwame Nkrumah, of whom a leading historian once described as “the star of Africa’s destiny”, the nation lit up a torch of inspiration for the rest of the world still fighting for their independence.
Ever since, he noted that Ghana has been the beacon of the quest for self-government, democracy, good govgovernanceanced generally, the rule of law in Africa.
According to Mr. Dame, the status of the current President, Nana Addo Dankwa Akufo-Addo as the Chairman of the Economic Community of West African States (ECOWAS) and giant efforts by him in ensuring that Ghana preserves her identity as a haven for peace, stability, democracy, and good governance, despite the disturbing wind of coup d’etats blowing around the West African sub-region, highlights the point that the Community Court of Justice could not have chosen a more appropriate venue for its external sittings.
"You are indeed home, and I extend to you, a warm Akwaaba, as we say it in local parlance!
My Lord Justices, I hope that you will, throughout your stay, upon the conclusion of each day’s sitting, find time to enjoy the dynamics of the fascinating and riveting socio-cultural life of our vibrant city as well. I bet you will be spellbound and left in awe.
"Mr. President, this external session of the Ecowas Community Court, the 10th of its kind being held under Article 26(2) of the ECOWAS Protocol establishing the Court, has to value in bringing the operations of the Court to the doorstep of the ECOWAS citizen," he noted.
Essentially, he maintained that it is an outreach exercise for the Court and delivers an opportunity for the ordinary member of ECOWAS states, and indeed lawyers and judges to familiarise themselves with the existence of the Community Court of Justice, its competence, mandate, practice, and procedure.
Allowing the Justices of the Court to interact with senior political authorities of host Member States, he stressed that it portends the ability to deepen relations between the Community Court and member states with the ultimate result of encouraging obedience to decisions of the Court.
"May at this point, and I think it is very apt, say a hearty congratulations to the ECOWAS Court of Justice for winning the Global Freedom of Expression Prize in 2022 awarded by the Columbia University," Mr. Dame said.
He stated that the prize is primarily on account of the Court’s landmark ruling in the Amnesty International versus the Republic of Togo, in which which which the Court held that access to the internet is a derivative right and requires the protection of the law.
He said the shutting down of the internet by the Government of the Republic of Togo during demonstrations by its citizens constituted an interference with the right to freedom of expression.
"Indeed, it is correct to say that the Court is rapidly carving a solid niche for itself in the protection of rights. We congratulate you, my lords," he said
He asserted that the jurisdiction of the ECOWAS Court of Justice originally fashioned the Court out as an engine for integration, as Article 9 of the 1991 ECOWAS Protocol which established the Court, charged the court to “ensure the observance of law and the principles of equity in the interpretation and application of the provisions of the Treaty.
In this regard, he stated that the Court was required to adjudicate disputes relating to the integration project contained in the ECOWAS Treaty, reduce trade barriers, harmonize national economic, financial, social, and cultural policies and build a common market and monetary union.
He mentioned that by a 2005 Supplementary Protocol, which codified an earlier decision of the Court in which it construed its original jurisdiction under Article 9 of the 1991 Protocol to cover human rights cases, the jurisdiction of the Court was significantly expanded, with the consequence that the Court can now assert jurisdiction over four general types of disputes.
He stated that these were centered on those relating to the interpretation, application, or legality of ECOWAS regulations those arising between ECOWAS and its employees those relating to liability for or against ECOWAS, and those involving a violation of human rights by a member state.
"Whilst commending the expansion of the jurisdiction of the ECOWAS Court, a rather downside to this development is that the future of the Court as an instrument for integration across the ECOWAS Community remains in doubt because dockets of the Court contain few cases, if at all, involving tariffs, trade barriers or other integration law issues. Instead, they are dominated by suits by individuals and non-governmental organisationsorganizationsan rights violations," he noted.
According to Mr. Dame, there ought to be a strategy for boosting the number of cases invoking the court’s jurisdiction on account of migratory issues, non-tariff, and other unfair trade measures adopted by countries in the West African Community as part of a broader strategy to enhance the court’s originally conceived role as an engine for integration.
He noted that both the 1991 Protocol and the 2005 Supplementary Protocol omitted the requirement to exhaust domestic remedies before invoking the jurisdiction of the ECOWAS Court.
According to him, this is a marked departure from the practice and procedure adopted by other international judicial and quasi-judicial human rights bodies, to the extent that exhaustion of local remedies is a foundational element of the three major regional courts around the world – the European Court of Human Rights which sits in Strasbourg, the Inter-American Court of Human Rights in San Jose, Costa Rica and the African Court of Human Rights based in Arusha, as well as the UN treaty bodies.
He said the omission of this requirement from the Protocol establishing the Court, in my humble view, poses a grave danger to the survival of the Court as it brings the Court into potential political conflict with domestic courts of member states.
He added that the omission of a requirement to exhaust local remedies is undoubtedly, also responsible for the ever-recurring difficulties in securing enforcement of decisions emanating from the ECOWAS Community Court of Justice.
According to him, the legitimate questions about the sovereignty of nations and the supremacy of a Republic’s Constitution are raised when a citizen of one country sidesteps all the avenues for resolution of a dispute available under the Constitution of his own country and directly accesses the ECOWAS Community Court.
"Respectfully, I find this design feature of the ECOWAS Court quite curious as the ECOWAS States have been reluctant to grant similar authority to the judicial authority of the African Charter on Human and People’s Rights for instance.
"In my view, there is no justification for member states with strong human rights record and formidable judicial institutions, like the Republic of Ghana, to be denied the opportunity to redress an alleged wrong within the framework of its domestic legal system before international responsibility may be called into question," Mr. Dame said.
Mr. Godfred Yeboah Dame used the opportunity to wish the Honourable Justices of the Community Court a successful session in Ghana, adding that looks forward to seeing all the justices at the reception to be organized by him on Wednesday, Mach 23, 2022.
