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Judge concerned by level of enforcement of ECOWAS Court of Justice decisions

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A judge of the ECOWAS Court of Justice, Justice Dupe Atoki has expressed concern at the “unsatisfactory” level of enforcement of the decisions of the Court by Member States.

The level of enforcement reportedly stands at 34 percent, and suggests the involvement of political actors in the enforcement process in order to emulate the best practices from other jurisdictions.

The judge, therefore, recommended in a paper delivered at a virtual panel discussion on Rule of Law Crisis: Enforcement Of Court Judgments And The Fight Against Corruption, that a committee of regional “ministers be constituted to monitor and supervise the enforcement of the decisions of the Court, as is the case in the European court and other international systems.”

In the paper, which was on the Enforcement of judgments of the ECOWAS Court of Justice, Justice Atoki suggested that the President of the Court should also be allowed to provide a report on the Court to the political authorities. This is in an effort to apprise them of the judgments of the Court and their enforcement status, to provide a holistic understanding of the Court.

Justice Atoki cited the provisions of the ECOWAS Treaty and Community Texts on the Court, which cumulatively demonstrated a “clear indication of the purposeful intention of the founders of ECOWAS to establish a court that can deliver enforceable judgments.”

She, however, noted that the non-enforcement of judgment in the ECOWAS court should not be seen as an African syndrome. It should rather be perceived as a global disorder, citing the 2004 report of the European Court of Justice, which showed 144 cases where Member States failed to fulfil its obligations under Community Law and a total of 2 497 since its inception.

In assessing the effectiveness of the enforcement mechanism, the judge noted that gaps were created in leaving enforcement to Member States, in accordance with the rules of civil procedure of the Member State. The rules obligate them to appoint a competent national authority for the purpose of receipt and processing the execution and notification of the Court, as only six states have complied.

However, in order to help change the landscape of impunity by Member States that exhibit outright disregard for the decisions of the Court, Justice Atoki argued in the paper that the time was apt to exercise the powers of the ECOWAS Court. This seeks to impose sanctions in line with the provisions of the 2102 Supplementary Protocol of the Community on sanctions for failure by Member States to fulfil their obligations to the community and consistent with practices of other international courts.

Consequently, she said that the “lacuna in providing the modalities for non-enforcement of sanction by the court calls for urgent attention, which will involve a review of the protocols relating to the Court.” She added that “a systematic process of enforcement akin to the political sanction should be considered.”

She also challenged public spirited individuals and non-governmental organisations (NGO’s) to engage the process provided by Article 15 of the Supplementary Act to hold Member States accountable to domesticate Community Texts.

A statement by the ECOWAS Commission in Abuja on Monday, 14 September 2020, said that the panel discussion was organized by the Socio-Economic Rights and Accountability Project (SERAP), a Nigerian NGO in collaboration with the MacArthur Foundation.




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