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Enforcing ECOWAS Law in West African National Courts

Published online by Cambridge University Press:  14 September 2011

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Abstract

One of the constitutional challenges of regional integration is how to manage the limitation of national judicial sovereignty of member states to ensure that community law is recognized as superior to national law and is accordingly applied and interpreted by national courts at the instance of community citizens. This challenge arises from the national ordering of legal systems and the fact that states are the primary parties to agreements in which they limit their sovereignty in favour of the success of the community. This article examines the enforceability of the law of the Economic Community of West African States in the national courts of the West African states which comprise ECOWAS, with the aim of determining how this affects the integration goals of ECOWAS.

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Type
Research Article
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Journal of African Law , Volume 55 , Issue 2 , October 2011, pp. 181 - 202
Copyright
Copyright © School of Oriental and African Studies 2011

INTRODUCTION

One of the constitutional challenges of regional integration is how to manage the limitation of national judicial sovereignty of member states to ensure that community law is recognized as superior to national law and is accordingly applied and interpreted by national courts at the instance of community citizens. This challenge arises from the national ordering of legal systems and the fact that states are the primary parties to agreements in which they limit their sovereignty in favour of the success of the community as a whole. It appears natural that community judicial institutions should be entrusted with the responsibility of enforcing the intent of member states who are assumed to be eager, ready and willing to bring their actions, inactions, understandings and disagreements over community law to community citizens, so that consistency can support the integration efforts. However, integration takes place in member states and is always an interaction between member states and community citizens, including non-nationals. It is fundamental to allow these citizens to approach community judicial institutions about how the measures that constitute them as community citizens are being implemented. It is also desirable to allow them to approach national courts over how national institutions, including community citizens, have acted or not acted with respect to community law. It is because these national courts are likely to give diverse interpretation to community law that there must be a hierarchical relationship between community and national courts to ensure consistent interpretation. National courts represent another critical layer of community institutional structure to enforce community law. They enable citizens to ensure that, as the primary beneficiaries of the integration process, they are able to engage the community on issues of implementation or otherwise. On the other hand, it is important to understand that enforcing community law in national courts also breeds its own problems because of the constitutional diversity of member states.

34 years after the formation of the Economic Community of West African States (ECOWAS) as a regional economic and social community, not much has been achieved to realize the community's lofty objectives. One plausible reason is the lack of involvement of national courts of member states. This article examines how ECOWAS law can be enforced in West African national courts, on the premise that enforcing such laws in national courts will considerably assist in the realization of the community's objectives. It is interesting to note that the treaty of the Organization for the Harmonization of Business Law in Africa (OHADA) is applicable in national courts of ECOWAS member states. This presents an instructive lesson that the issues discussed in this article already operate in West Africa.

This article first examines the nature of the economic and social integration upon which West African states have embarked. It then explores the sources and applicability of ECOWAS law before West African national courts. It continues by briefly discussing the OHADA system in West Africa as an example of the application of a community law in West African national courts, before offering concluding remarks.

THE ECONOMIC COMMUNITY OF WEST AFRICAN STATES

ECOWAS was formed on 28 May 1975 in Lagos, where Nigeria and 15 other West African countries (Benin, Burkina Faso, Cape Verde, Côte d'Ivoire, The Gambia, Ghana, Guinea, Guinea Bissau, Liberia, Mali, Mauritania,Footnote 1 Niger, Nigeria, Senegal, Sierra Leone and Togo) created the communityFootnote 2 as a regional body with the aim of the economic integration of its member states.Footnote 3 This is evident in article 2 of the ECOWAS treaty which provides that the community's aim is to promote cooperation and development in all fields of economic activity. To achieve this, the community was periodically to ensure the achievement of milestones such as: the elimination of customs duties between member states; the abolition of quantitative and administrative restrictions; the establishment of a common customs tariff and a common commercial policy towards third parties; the abolition of obstacles to the free movement of persons, services and capital; the harmonization of agricultural policies; the implementation of schemes of joint development; the harmonization of the economic and industrial policies of member states; and the establishment of a fund for cooperation, compensation and development. In conclusion the ECOWAS treaty envisioned a free trade area as a step towards an economically integrated West Africa. In 1993, ECOWAS member states revised the ECOWAS treaty (the Revised Treaty),Footnote 4 essentially to move towards deeper integration and to recognize, promote and protect a political and social dimension to the community's economic objectives. The incorporation of political objectives to the ECOWAS mandate can be traced specifically to the Liberian crisis and to 1990, when the Authority of Heads of State and Government (the Authority) established a Standing Mediating Committee, charged with the task of finding a lasting solution to the crisis. A ceasefire agreement was signed and a civilian regime established. A military force (the ECOWAS Ceasefire Monitoring Group) was established to monitor the ceasefire.

By article 3 of the Revised Treaty, member states dedicate themselves to “promote co-operation and integration, leading to the establishment of an economic union in West Africa in order to raise the living standards of its peoples and to maintain and enhance economic stability, foster relations among member States and to contribute to the progress and development of the African Continent”. In order to achieve this union the community is required to ensure in stages:

  1. “(a) the harmonization and coordination of national policies and the promotion of integration programmes, projects and activities particularly in food, agriculture and natural resources, industry, transport and communications, energy, trade, money and finance, taxation, economic reform policies, human resources, education, information, culture, science, technology, services, health, tourism, legal matters;

  2. (b) the harmonization and co-ordination of policies for the protection of the environment;

  3. (c) the promotion of the establishment of joint production enterprises;

  4. (d) the establishment of a common market through [the establishment of] a free trade area … the adoption of a common external tariff and common trade policy … and the removal … of obstacles to the free movement of persons, goods, services and capital and to the right of residence and establishment;

  5. (e) the establishment of an economic union through the adoption of common policies in the economic, social and cultural sectors, and the creation of a monetary union;

  6. (f) the promotion of joint ventures by private sector enterprises [including] the adoption of a regional agreement on cross-border investments;

  7. (g) the adoption of measures for the integration of the private sectors, particularly the creation of an enabling environment to promote small and medium scale enterprises;

  8. (h) the establishment of an enabling legal environment;

  9. (i) the harmonization of national investment codes leading to the adoption of a single Community investment code;

  10. (j) the harmonization of standards and measures;

  11. (k) the promotion of a balanced development of the region…;

  12. (l) the encouragement and strengthening of relations and the promotion of the flow of information, particularly among rural populations, women and youth organisations and socio-professional organisations such as associations of the media, business men and women, workers and trade unions;

  13. (m) the adoption of a Community population policy…;

  14. (n) the establishment of a fund for co-operation, compensation and development”.

A combined reading of a number of provisions of the Revised Treaty makes it evident that the treaty constitutes a legal system within ECOWAS. First, article 88 of the Revised Treaty states that the community shall have an international legal personality. Furthermore, the aims and objectives of ECOWAS envision a community legal system. This is evident from ECOWAS's objectives which create norms or provide for the creation of norms by a number of bodies representing a broad spectrum of executive, legislative and judicial competencies. These include: the Authority; the Council of Ministers; the Community Parliament; the Economic and Social Council; the Community Court of Justice (the ECOWAS Court); the ECOWAS Commission;Footnote 5 the Fund for Co-operation, Compensation and Development; Specialized Technical Commissions; and any other institution established by the Authority.Footnote 6 The requirements that an enabling legal environment should be established, that there is a right of residence and establishment, that national investment codes should be harmonized, leading to a single community investment code, and that standards and measures should be harmonized, all also point to the work of community institutions. It is also arguably that the community legal system involves national institutions, especially the national judicial institutions of member states. The fact that the ECOWAS community legal system is a product of limiting the sovereignty of member states is recognized in the preamble to the Revised Treaty, where member states affirm that: “the integration of Member States into a viable regional community may demand the partial and gradual pooling of national sovereignties to the Community within the context of a collective political will”.

With respect to judicial sovereignty, there is little doubt that national judicial institutions are subordinate to community legal institutions. This article will explore whether and how national judicial institutions are venues for the application and enforcement of ECOWAS community law. The application and enforcement of ECOWAS community law in a national court refers to the ability of a citizen of an ECOWAS state to invoke ECOWAS law in a matter before the national court and for that court to be bound to follow that law. This is the so called direct effect of community law. The principle emerged from the case of Van Gend en Loos v Nederlandse Administratie der Belastingen Footnote 7 where the European Court of Justice (ECJ) established an important principle that provisions of the Treaty Establishing the European Economic Community (EU Treaty) were capable of creating legal rights which could be enforced by both natural and legal persons before the courts of the community's member states. In that case, the ECJ adopted criteria for establishing the direct effect of the EU Treaty: the provision must be sufficiently clear and precisely stated; it must be unconditional or non-dependant; and it must confer a specific right on which the citizen can base his or her claim. The concept of direct effect has been extended to legislation adopted pursuant to the treaty in the form of directives and regulations from the European Commission. However, it should be noted that the concept of direct effect is not found in the EU Treaty but is a creation of the ECJ. Adopting this principle will significantly enhance the integration process within ECOWAS. Applied to the ECOWAS community legal system, direct effect would entail determining part of the provisions of treaties, protocols, decisions and regulations that have direct effect in ECOWAS national courts. Whether direct effect is incumbent on the ECOWAS community legal system cannot be assumed but needs to be proved.

Direct effect is to be differentiated from direct applicability, by which a country determines how its treaties become part of its national legal system and therefore binding on its national courts. When a treaty is directly applicable, it is enforced as a national law upon ratification. It therefore follows that a treaty that is directly applicable has direct effect in member states from the time of ratification.

THE SOURCES OF ECOWAS LAW AND THEIR APPLICATION IN NATIONAL COURTS

This part explores the nature of the sources of ECOWAS law in order to determine if and how they may be applicable in national courts

The Revised ECOWAS Treaty

The Revised Treaty constitutes the ECOWAS legal system, a fact which ordinarily should make it directly applicable and of direct effect in West African national courts. Unfortunately this is not the case because, by reason of article 5(2) of the Revised Treaty, its applicability depends on the manner in which it is incorporated into states' national legislation: “[e]ach Member State shall, in accordance with its constitutional procedures, take all necessary measures to ensure the enactment and dissemination of such legislative and statutory texts as may be necessary for the implementation of the provisions of this Treaty.”

This means that it is the constitutional measures, applicable for incorporation in each member state, that will determine the direct applicability and effect of the Revised Treaty. English speaking ECOWAS countries like Nigeria,Footnote 8 Ghana,Footnote 9 Sierra Leone,Footnote 10 GambiaFootnote 11 and LiberiaFootnote 12 are generally regarded as dualist. International law, including treaties, does not have force of law within their territory unless it has been promulgated in national legislation. Without such national legislation, a treaty will not have the force of law in the country. Since there is no evidence that any of the English speaking countries have domesticated the Revised Treaty, it is not applicable within these countries and is less likely to have direct effect in their national courts.

Assuming the Revised Treaty is domesticated, it is also important to determine the status of the treaty. Does domestication make the Revised Treaty superior or inferior to national constitutions? The answer appears to be that the domesticated Revised Treaty is not superior to the constitutions of English speaking ECOWAS countries because these constitutions declare that they are superior to all other law.Footnote 13 For example, in Nigeria this fact has been acknowledged in respect of the African Charter on Human and Peoples' Rights (the African Charter), the domestication status of whichFootnote 14 was examined by the Nigerian Supreme Court in Abacha v Fawehinmi (Abacha).Footnote 15 The court held that the Nigerian Constitution is superior to the African Charter but that the charter is superior to municipal legislation.Footnote 16 Based on Abacha it may be concluded that the superiority of the Revised Treaty to municipal legislation will be a welcomeFootnote 17 principle of Nigerian law within the context of these discussions, since a significant portion of Nigerian law will be subject to the Revised Treaty and its derivatives.

Another means of domestication is through the making or amending of legislation by a national legislature with the ECOWAS treaty in mind. It is also possible for a court to apply a treaty even when it has not been domesticated. An example in this regard is the practice of the Ghanaian Supreme Court to apply the African Charter even when it has not been domesticated. In New Patriotic Party v Inspector General of Police,Footnote 18 Archer J said “Ghana is signatory to this African Charter and Member States of the Organization of African Unity and parties to the Charter are expected to recognize the rights and duties enshrined in the Charter … I do not think that the fact that Ghana has not passed specific legislation to give effect to the Charter, means that the Charter cannot be relied upon”.Footnote 19

In this regard, Nigerian courts have also recognized the fact that the Nigerian state cannot deliberately enact laws in contravention of its international obligations and undertakings.Footnote 20 Drawing on this fact, the Revised Treaty and equivalent legislation, including protocols, will certainly qualify as capable of influencing domestic legislation and the decisions of national courts. How this can and will play out has not yet been the subject of judicial deliberation. However, it would be encouraging if this were the case in practice. The readiness of the West African national judiciaries to regard the Revised Treaty as of persuasive authority in the absence of domestication will greatly enhance the status of the Revised Treaty.

In the French speaking West African countries there is a difference in the manner in which international law is received. This is because these countries are monist in orientation even if they appear to be dualist in practice, to the extent that, in some circumstances, some level of legislative activity (including the revision of the constitution) is required before a treaty takes effect. In these countries, as soon as international law is made, it becomes part of the national laws of that state, subject to the reciprocal enforcement of international law by other states. Examples from Senegal and Benin will suffice. Article 147 of the Constitution of the Republic of Benin 1990 provides that treaties or agreements lawfully ratified shall have, upon their publication, an authority superior to that of national law, without prejudice to each agreement or treaty in its application by the other party. Article 146 of the same constitution provides that, if the Constitutional Court, upon a submission by the president of the republic or by the president of the National Assembly, decides that an international obligation allows a clause contrary to the constitution, the authorization to ratify it may occur only after the revision of the constitution. Similarly, article 98 of the Senegalese Constitution of 2001 provides that treaties or agreements duly ratified shall, upon their publication, have an authority superior to that of national law, subject, in respect of each treaty and agreement, to its application by the other party. Article 97 further provides that, if the Constitutional Court has declared that an international agreement contains a clause contrary to the constitution, the authorization to ratify it or approve it shall only be given after the constitution has been revised. These two examples reveal that two conditions must be satisfied before the treaties have effect. The first condition requires the judiciary to review the constitution and the treaty to enable the constitution to be revised before the treaty is applicable. There is also a requirement for the reciprocal application of the treaty by another state before it is applicable. The reciprocal application of the Revised Treaty must surely refer to national application. If that is the case, it is open to interpretation whether it means that the Revised Treaty is applicable in all other ECOWAS states or that the Revised Treaty is applicable in at least one other state. It appears therefore in French speaking ECOWAS countries that, in practice, the Revised Treaty is not directly applicable.

The Lusophone countries of Cape Verde and Guinea Bissau generally follow the monist tradition. Article 11(2) of the Cape Verde Constitution of 1992 provides that “international treaties and agreements, validly approved or ratified, shall be in force in the Capeverdean legal order after their official publication and their entry into force in the international legal order, and for the time that they are internationally binding on the State of Cape Verde”.

Based on this provision, a treaty such as the Revised Treaty is superior to the national laws of Cape Verde. Thus article 11(4) of the Cape Verde Constitution provides that the rules and principles of general or common international law and of conventional international law, validly approved or ratified, shall prevail, after their entry into force in the international and domestic legal orders, over all legislative and domestic normative acts of an infra-constitutional value.

It is suggested that this aspect of the incorporation of the Revised Treaty reveals one reason why ECOWAS has been of limited effectiveness. If the Revised Treaty is not applicable in member states, it is not difficult to imagine national legislation and other measures that undermine the objectives and the norms which are contained in it. For example, national laws prevent professionals from ECOWAS countries from practising outside their countries. In this regard, section 4(1) of the Legal Practitioners Act 2004 provides that a key requirement for being called to the Nigerian Bar is Nigerian citizenship. Thus, a Ghanaian legal practitioner has no right to practise in Nigeria despite the ECOWAS Free Movement Protocol. If community laws are not part of a national legal system, national courts cannot invoke them as a matter of duty in the issues brought before them.

The treaties and protocols made by the Authority of Heads of State and Government pursuant to the Revised Treaty

Article 7 of the Revised Treaty established the Authority as the supreme institution of ECOWAS and, by article 9(1), enabled it to act by decisions. The Authority's decisions can be promulgated as a protocol, which is the equivalent of a treaty.Footnote 21 In order to discharge its responsibilities, the Authority has made a number of protocols dealing with all kinds of subject matter.Footnote 22 Article 9(4) of the Revised Treaty provides that “[d]ecisions of the Authority shall be binding on Member States and Institutions of the Community”. Such decisions shall automatically enter into force within 60 days of their publication in the community's official journal and shall also be published in the national gazettes of member states.Footnote 23 What is the effect of the provisions of article 9(4)? On one hand, since the protocol is regarded as a treaty, the discussion above on the manner of incorporation will also apply to it. On the other hand, the provisions of article 9(4) can be relied on to argue that the Authority's decisions, including protocols, are directly applicable in member states. It is for this reason that it may be said that the constitutional requirement for incorporation wherever and however it exists is not applicable to decisions of the Authority.

With regard to Cape Verde, it is important to refer to article 11(3) of the Constitution of Cape Verde which provides for the direct effect of community legislation. That article provides that legal acts emanating from the relevant organs of the supranational organizations of which Cape Verde is a member, shall enter directly into force in the domestic legal order, provided that this is so established in the respective constitutive instruments. There is no doubt that decisions and protocols will fall under the rubric of community acts.

An example of direct applicability and the effect of the Authority's decisions: The right of entry, residence and establishment of ECOWAS citizens

A close study of the Revised Treaty and the protocols made by the Authority reveals many areas of community law which have direct effect. This article will now examine one example of community law (the right of entry, residence and establishment) because it confers rights on ECOWAS citizens which can be enforced in their national courts. Article 59 of the Revised Treaty provides that:

  1. “(1) CitizensFootnote 24 of the Community shall have the right of entry, residence and establishment and Member States undertake to recognize these rights of Community Citizens in their territories in accordance with the provisions of Protocols relating thereto.

  2. (2) Member States undertake to adopt all appropriate measures to ensure that Community citizens enjoy fully the rights referred to in paragraph 1 of this Article.

  3. (3) Member States undertake to adopt, at national level, all measures necessary for the effective implementation of the provisions of this Article.”

A similar provision had appeared in article 27 of the ECOWAS TreatyFootnote 25 and led to the adoption of a Protocol Relating to the Free Movement of Persons Residence and EstablishmentFootnote 26 (Free Movement Protocol). Article 2 of the Free Movement Protocol provides that:

  1. “1. The Community citizens have the right to enter, reside and establish in the territory of Member States.

  2. 2. The right of entry, residence and establishment referred to in paragraph 1 above shall be progressively established in the course of a maximum transitional period of fifteen (15) years from the definitive entry into force of this Protocol by abolishing all other obstacles to free movement of persons and the right of residence and establishment.

  3. 3. The right of entry, residence and establishment which shall be established in the course of a transitional period shall be accomplished in three phases, namely: Phase I – Right of Entry and Abolition of Visa Phase II – Right of Residence Phase II – Right of Establishment.”

Article 3 of the Free Movement Protocol implemented the first phase. It provides that:

  1. “1. Any citizen of the Community who wishes to enter the territory of any other Member State shall be required to possess a valid travel document and an international health certificate.

  2. 2. A citizen of the Community visiting any Member State for a period not exceeding ninety (90) days shall enter the territory of that Member State through the official entry point free of visa requirements. Such citizen shall, however, be required to obtain permission for an extension of stay from the appropriate authority if after such entry that citizen has cause to stay for more than ninety (90) days.”

It is important to note the provisions of article 4 of the Free Movement Protocol which permits member states to refuse admission into their territory to any community citizen who comes within the category of an inadmissible immigrant under its laws. The second phase of the Free Movement Protocol is implemented by a Supplementary ProtocolFootnote 27 which grants to “citizens of the Community the right of residence in its territory for the purpose of seeking and carrying out income earning employment”. Article 3 provides that the right of residence includes the right, subject to restrictions by reason of public order, public security and public health, to: (i) apply for jobs effectively offered; (ii) travel for this purpose freely in the territory of a member state; (iii) reside in one of the member states in order to take up employment in accordance with the legislative and administrative provisions governing employment of national workers; and (iv) live in the territory of a member state according to the conditions defined by the legislative and administrative provisions of that state, after having held employment there.Footnote 28 The third phase of the Free Movement Protocol is implemented by a further Supplementary ProtocolFootnote 29 which in article 2 grants the right to a community citizen who is a national of a member state to settle or establish in a member state other than his state of origin, and to have access to economic activities, carry out these activities as well as set up and manage enterprises, and in particular companies under the same conditions as defined by the legislation of the host member state for its own nationals.

The implementation of the Free Movement Protocol has been ridden with allegations of abuse.Footnote 30 In particular Agyei and Clottey state that:

“In spite of ratifying the protocol which ushered in the free movement of persons in the sub-region impeded by the colonial powers; several border checks continue to exist. This has resulted in severe harassment and extortion of money from travelers by security personnel at the numerous checkpoints. Free movement is also hampered by different official languages at border posts. There are reports of torture and killings by security personnel in countries like Senegal and Gambia. The killing of 44 Ghanaians in The Gambia by security agencies in 2005 constitutes an example of harassments and difficulties faced by citizens of member states in exercising their right to free movement within the sub-region.”Footnote 31

Continuing, the authors point out that:

“It has been argued that implementation of the protocol coincided with a period of economic recession in many member states; and this resulted in large influx of nationals of West Africa to Nigeria. When the economic situation became unbearable for the government of Nigeria, it revoked article 4 and 27 of the protocol and expelled 0.9 and 1.3 million non-national residents most of them Ghanaians in 1983 and 1985 respectively. … Besides Nigeria, other member states which have expelled immigrants of West African origin since the operationalisation of the protocol include the Côte d'Ivoire (1999); Senegal (1990); Liberia (1983) and Benin (1998).”Footnote 32

In effect, community citizens have alleged that their rights of entry, residence and establishment have been breached and that member states have breached obligations which were undertaken under the Free Movement, Right of Residence and Right of Establishment Protocols. It is contended that these citizens can proceed to the appropriate national court to lodge a complaint and that the Free Movement Protocol provisions which are directly applicable in the member states are enforceable in these courts. It is instructive to remember the complaint on the implementation of the Free Movement Protocol made to the ECOWAS Court in Olajide v Federal Republic of Nigeria Footnote 33 where Mr Olajide, a Nigerian businessman, complained of a breach of the Free Movement Protocol. Even though a preliminary objection of a lack of individual access to the ECOWAS Court was upheld, it was established that the ECOWAS Court would hear the matter. It is contended that an aggrieved community citizen such as Mr Olajide can proceed to a Nigerian court and allege that the Nigerian government has, by an act or omission, breached the Free Movement Protocol.

Regulations of the Council of Ministers

Article 10 of the Revised Treaty establishes the Council of MinistersFootnote 34 and article 12 provides that the Council of Ministers shall act by regulations. Regulations of the council shall be binding on the institutions under its authority, which include the executive secretary of the community and other staff, the Economic and Social Council,Footnote 35 the Fund for Co-operation Compensation and Development,Footnote 36 and technical commissions established by article 22 of the Revised Treaty. If the regulations made by the Council of Ministers are approved by the Authority they become binding on member states. It is clear that regulations are not directly applicable and do not have direct effect until they have become decisions of the Authority.

Judgments of the ECOWAS Community Court of Justice

Article 15 of the Revised Treaty establishes the ECOWAS Court.Footnote 37 As the judicial organ of the community, the ECOWAS Court has a significant role in the enforcement of ECOWAS law in national courts through the enforcement of its judgments by national courts. In particular, article 15(4) of the Revised Treaty states that the judgments of the court shall be binding on member states, the institutions of the community, and on individuals and corporate bodies. It appears that “member states” include the judicial bodies in these states. This will mean that decisions of the ECOWAS Court will be of precedential value in these countries. The nature of judicial power in modern constitutions is essentially territorial, with each constitution creating a hierarchy of courts with a final appellate court beyond which there is no appeal. To limit the authority of the highest national court by treaty would entail the clear surrender of judicial sovereignty.

Where the Revised Treaty is directly applicable, as in the French speaking countries and Cape Verde, it is clear that the ECOWAS Court is superior to the national appellate courts and its judgments are of precedential value. Where, as in the English speaking countries, the Revised Treaty is not directly applicable, it is not certain whether the decisions of the ECOWAS Court are applicable and, if applicable, are superior to judgments of the highest national courts. As with decisions of the Authority, it may well be argued that decisions of the ECOWAS Court should be directly applicable in member states and should carry superior weight to decisions of national courts because they are founded on community law. If ECOWAS law is directly applicable, it may subsequently confer a direct effect on ECOWAS citizens who bring actions before national courts since they can rely directly on the law which is declared or clarified by the judgment. This point seems to be strengthened by the fact that national courts are the means by which judgments of the ECOWAS Court are enforced.

Article 19(2) of the 1991 ECOWAS Court Protocol makes the decisions of the court immediately binding, subject to the provisions for review contained in article 25 and further specified in articles 92–94. Article 22(3) requires both member states and ECOWAS institutions to take all measures necessary to ensure execution of the court's judgments. Article 24 of the 1991 protocolFootnote 38 requires the execution of ECOWAS Court judgments to be in the form of a writ of execution which the chief registrar is required to submit to the relevant member state, which is then required to execute the judgment according to the civil procedure of that state.Footnote 39 That state is in turn required by article 24(4) to determine the competent national authority to execute the judgment. It is desirable that the highest national court of a member state should be this authority. There is no evidence that the ECOWAS Court has been notified of the competent national authorities in this regard. What is certain is that the civil procedure rules of ECOWAS states recognize the registration and enforcement of foreign judgments. For example, in Nigeria the Foreign Judgments (Reciprocal Enforcement) ActFootnote 40 enables the registration of judgments of courts of certain foreign countries which are then enforced as judgments of the registering court. Section 3 of this act designates that court as the High Court of the 36 states and the federal capital territory of Nigeria. It appears however that there must be a sum of money payable by the terms of the judgment. If this act is applicable to the judgments of the ECOWAS Court, it will be at the High Court that the judgments will be registered. Since it is a judgment of a High Court, it presumably should be subject to appeal to the Court of Appeal and then ultimately the Supreme Court.

However, it should be noted that the ECOWAS Court is unique and its judgment is not that of a foreign court but a court whose judgment is immediately binding on member states. Accordingly, execution of its judgment by the highest courts of member states reinforces the fact that the judgment becomes automatically part of the national law and of the highest precedential value. This is also further reinforced by the fact that, by article 24(5) of the 1991 ECOWAS Court Protocol, only the ECOWAS Court can suspend the execution of its own decisions. It should be noted as pointed out above that, since the protocols that define the execution of the judgment of the ECOWAS Court are not directly enforceable in some member states, those states may well ignore the judgments of the court. Again it is to be noted that article 77(1) of the Revised Treaty provides that the Authority may impose sanctions against states which do not fulfil their obligations regarding ECOWAS; this would certainly include a refusal to comply with the decisions of the ECOWAS Court.

To understand the extent to which a judgment of the ECOWAS Court can influence matters before national courts, it is important to refer to the court's mandate. Article 9 of the 2005 ECOWAS Protocol states the court's mandate to be:

  1. “1. The Court has competence to adjudicate on any dispute relating to the following:

    1. a. The interpretation and application of the Treaty, Conventions and Protocols of the Community;

    2. b. The interpretation and application of the regulations, directives, decisions and other subsidiary legal instruments adopted by ECOWAS;

    3. c. The legality of regulations, directives, decisions, and other subsidiary legal instruments adopted by ECOWAS;

    4. d. The failure by Member States to honor their obligations under the Treaty, Conventions, and Protocols, regulations, directives or decisions of ECOWAS;

    5. e. The provisions of the Treaty, Conventions and Protocols; regulations; directives or decisions of ECOWAS Member States;

    6. f. The Community and its officials; and

    7. g. The action for damages against a Community Institution or an official of the Community for any action or omission in the exercise of official functions.

  2. 2. The Court shall have the power to determine any non contractual liability of the Community to pay damages or make reparation for official acts or omissions of any Community Institution or Community officials in the performance of official duties or functions.

  3. 3. Any action by or against a Community Institution or any Member of the Community shall be statute barred after three (3) years from the date when the right of action arose.

  4. 4. The Court has jurisdiction to determine cases of violation of human rights that occur in any Member State.

  5. 5. Pending the establishment of the Arbitration Tribunal provided for under Article 16 of the Treaty, the Court shall have power to act as arbitrator for the purpose of Article 16 of the Treaty.

  6. 6. The Court shall have jurisdiction over any matter provided for in an agreement where the parties provide that the Court shall settle disputes arising from the agreement.

  7. 7. The Court shall have all the powers conferred upon it by the provisions of this Protocol as well as any other powers that may be conferred by subsequent Protocols and Decisions of the Community.

  8. 8. The Authority of Heads of State and Government shall have the power to grant the Court the power to adjudicate on any specific dispute that it may refer to the Court other than those specific in this Article.”

One important context that illustrates the potential of the court's mandate is the fact that it is open to the ECOWAS Court to recognize the principle of direct effect. Given the nature of its mandate and the provisions of the Revised Treaty, the Protocols and Decisions of the Authority, if the court were to assert that community law has authority which can be invoked in national courts, the prospects of regional integration would be greatly enhanced because, as pointed out above, it would follow that ECOWAS citizens may invoke community law in their national courts. The nature of issues which individualsFootnote 41 can raise before the ECOWAS Court can significantly affect the jurisprudence of national courts in matters brought before them. In particular, the competence of the ECOWAS Court over allegations of human rights violations is important in this regard.Footnote 42 It is this mandate to enforce human rights that very clearly illustrates the significance of direct effect.

The crucial question is whether decisions of the ECOWAS Court can have precedential value in national courts of the individuals who bring a matter before the court and in other national courts. A practical demonstration of this issue has arisen in the aftermath of the recent decision of the ECOWAS Court in SERAP v Federal Republic of Nigeria Footnote 43 (SERAP) on two crucial issues affecting the Nigerian legal system. The first is that Nigerians have a right to education as provided for in section 17 of the 1999 Constitution of the Federal Republic of Nigeria (1999 Constitution); the second is the principle that standing to sue in the enforcement of public rights is no longer tenable. With respect to the right to education, the importance of this case lies in the fact that the decision has altered what had been the orthodoxy in the enforcement of socio-economic rights in Nigeria. By Nigeria's human rights scheme, the right to education does not form part of chapter IV of the 1999 Constitution which sets out those constitutional rights which are enforceable. The right to education is contained in chapter II, which contains the fundamental objectives and directive principles of state policy and is declared by section 6(6)(c) of the 1999 Constitution to be unenforceable. Nigerian courts have long confirmed the principle that the provisions of chapter II of the 1999 Constitution are unenforceable.Footnote 44

The ECOWAS Court dismissed the Nigerian government's objection that the right to education is a mere directive policy of the government and not a citizen's legal entitlement. It based the decision on the African Charter which has been ratified and domesticated by Nigeria and which provides a justiciable right to education. On the question of locus standi [right to bring an action], Nigerian courts have also held in a long line of casesFootnote 45 that private persons had to show a personal connection to a public issue to enable a court to assume jurisdiction over the issue. The ECOWAS Court held that in public interest litigation a plaintiff need not show any personal connection to a case before a court will assume jurisdiction. All that needs to be done is for the plaintiff to establish that a public right exists. On these two issues, the decision of the ECOWAS Court is of fundamental import. If a decision of the ECOWAS Court has precedential value in the Nigerian legal system, as it rightly should, a large section of Nigerian law may change as a result of SERAP. Unfortunately this cannot be stated with utmost certainty. It is instructive to recall an earlier decision of the African Human Rights Commission in Social and Economic Rights Action Centre v Nigeria Footnote 46 (SERAC) that a number of socio-economic rights are enforceable in Nigeria by virtue of the African Charter, and the fact that this decision did not change the jurisprudence on the enforcement of socio-economic rights in Nigeria. It is therefore important to be cautious as to what SERAP would mean for the Nigerian legal system, even if the case is registered at the Supreme Court of Nigeria. If the decision is of direct effect it will clearly amount to an amendment of the 1999 Constitution overruling important landmark decisions such as Adesanya and Okogie.Footnote 47 It would also affect the jurisprudence of West African national courts. This interpretation of the effect of SERAP will also extend to another decision of the ECOWAS Court in Hadijatou Mani Koraou v The Republic of Niger Footnote 48 that the Republic of Niger did not sufficiently protect the applicant's right against slavery and that the applicant had suffered physical, psychological and moral harm for which compensation was awarded. The recognition of the direct effect of ECOWAS Court judgments, especially in human rights cases, will greatly influence the development of the principle of direct effect for regional and continental human rights courts such as the African Court of Human Rights.Footnote 49

To illustrate further the contention that there is direct effect of an ECOWAS Court judgment on member states, this article will examine the nature of the access to the ECOWAS Court granted to national courts by article 10(f) of the 2005 ECOWAS Court Protocol. This article provides that “[w]here in any action before a Court of a Member State, an issue arises as to the interpretation of a provision of the Treaty, or the other Protocols or Regulations the national Court may on its own or at the request of any of the parties to the action refer the issue to the Court for interpretation.” The intention of this provision has been interpreted as follows:

“Article 9(6) [sic] of the Amended Protocol of the Court provides for a reference to be made either by the national Court, or a party to the ECOWAS Court for interpretation of a Community text. The reason behind this may be the desire for a uniform interpretation of the various Community texts for an eventual emergence of a Community legal order. This will be of immense benefit to the lawyers and community citizens and at the same time allow for relationship [sic] between the ECOWAS Court and the national courts.

The ECOWAS Courts' role here is to give preliminary ruling as to the interpretation or validity of the Treaty provision or community Act, while the National Courts shall apply the ruling to the facts of the case. In other words, the Court's role is to interpret, while the National Court's role is to apply.

Where the Court rules on a preliminary reference it is binding on the National Court which referred the question for consideration. If the same issue arises again in a latter [sic] case, then under the doctrine of [acte] clair [a legal question is clear], there is no need to make a further reference and if the National court is unhappy with the previous ruling, it can make an additional reference, even if the matter is [acte] clair.”Footnote 50

The preliminary reference procedure enables a uniform interpretation of ECOWAS law and may also imply that ECOWAS law can be raised in a national court. A national court may prefer to rely on ECOWAS law even if it is not bound by the law. The fact that the duty to make the preliminary reference is optional and a national court may deal with a matter without seeking a reference goes to show, it can be argued, that the relationship between the ECOWAS Court and the national court is not hierarchical but cooperative.Footnote 51 On the other hand, article 10(f) of the 2005 ECOWAS Court Protocol can also be additionally invoked to recognize the principle of direct effect. Article 177 of the EU Treaty, similar to article 10(f), was enough to enable the ECJ to recognize the principle of direct effect. The essence of article 10(f) of the 2005 ECOWAS Court Protocol is to ensure uniform interpretation either before the ECOWAS Court or before national courts. Recognizing the direct effect of ECOWAS law will oblige, rather than the present optional position, national courts seized of a matter involving ECOWAS law to suspend the matter in order to seek interpretation from the ECOWAS Court, where there is none already. In this way, the ECOWAS Court can ensure uniform interpretation. It has been argued that it is the highest court of the land in the member state that should seek an interpretation.Footnote 52 This is correct because, when such an interpretation is handed down, it becomes part of the decision of the highest court of the land and therefore becomes of the highest precedential value in that member state.

DIRECT APPLICABILITY AND DIRECT EFFECT IN WEST AFRICAN NATIONAL COURTS: THE EXAMPLE OF THE ORGANIZATION FOR THE HARMONIZATION OF BUSINESS LAW IN AFRICA (OHADA)

This section undertakes a brief overview of the OHADA Treaty which is directly applicable and of direct effect in certain West African national courts. OHADA was constituted by the OHADA TreatyFootnote 53 signed at Port Louis, Mauritius on 17 October 1993. Of the 16 OHADA member states,Footnote 54 nine are also members of ECOWASFootnote 55 and it is to be noted that OHADA is open to all African states. OHADA has established uniform business laws for member states that are applicable in the national courts of OHADA states as national laws.Footnote 56 OHADA laws have direct effect, as citizens of OHADA member states can invoke OHADA laws in their national courts, to override contrary provisions of a previous or subsequent national law.

Even though OHADA is not a regional economic community, its activities resemble those of such a community and could become a fundamental building block of ECOWAS if the other ECOWAS member states join the organization. OHADA's organs include the Conference of Heads of State and Government, a Council of Ministers, the Common Court of Justice and Arbitration (OHADA Court) and the Permanent Secretariat.Footnote 57 OHADA operates by issuing uniform acts.Footnote 58 Preliminary uniform acts are prepared by the Permanent Secretariat which forwards them to governments of contracting states which have 90 days to submit written comments on the draft. The preliminary uniform act, together with the observations of the contracting states and a report of the preliminary secretary is then forwarded to the OHADA Court which has 30 days to reach a determination and recommendation. The final text is adopted by a unanimous decision of the Council of Ministers. The uniform acts enter into force 90 days after their adoption by the Council of Ministers. They must be published in the official gazettes of OHADA and member states.

Article 14 of the OHADA Treaty endows the OHADA Court with the jurisdiction to ensure the uniform interpretation and application of the OHADA Treaty, the regulations promulgated to further the treaty and the uniform acts. The national courts of member states as well as parties to a case before a national court may refer a matter to the court. The decision of the OHADA Court is immediately binding and enforceable in member states. In addition to referrals, article 56 of the Rules of ProcedureFootnote 59 permits national courts to seek advisory opinions of matters before the national court to enable the court to reach a decision.

There are still a number of significant problems. These include: the nature of the jurisdiction of the OHADA Court; the reluctance of national courts to refer cases to the OHADA Court; the practical difficulties for citizens of OHADA states to use the court because of its location in Abidjan; and the execution of judgmentsFootnote 60 with the OHADA system. However it represents what is possible within the ECOWAS legal system.

CONCLUDING REMARKS

It does appear that the direct access which community citizens have to the ECOWAS Court has led to the impression that community citizens are involved in the integration process and are thus able to ensure the implementation of ECOWAS law. Even if this is so and the ECOWAS Court is able to function at an optimal level, there will still be need for the direct applicability and direct effect of ECOWAS law in national courts. The deepening of the integration in the region depends partly on these principles. It appears that ECOWAS member states understand the constitutional challenges posed by regional integration but lack the political will to confront these challenges by facilitating direct applicability and effect of ECOWAS law. It is clear that the monist countries have a track record in this regard, as a result of the OHADA system. It is the English speaking countries whose constitutional order presents relatively more obstacles. Since member states are not proactive in ensuring direct applicability and direct effect, it is hoped that the ECOWAS Court will facilitate the integration process by recognizing the direct applicability and direct effect of ECOWAS laws. Can the ECOWAS Court rise to the challenge of recognizing the principle of direct effect or shall this lie with the Authority? If the Authority's activities in ECOWAS's three decades of existence are anything to go by, it is clear that not much can be done apart from the Authority recognizing that citizens enforcing ECOWAS law in their national courts is crucial in the integration process.

The involvement of national courts in the integration process engages the citizens of member states.Footnote 61 The importance of national courts in the integration process cannot be overstated and is directly related to the ability of their citizens to be able to invoke community law before them. It is plausible that national acts or inaction can be impugned on the basis of inconsistency with community law. Given the fact that a significant part of ECOWAS community law could be said to have direct effect, it is easy to imagine how this may fundamentally change the legal system of member states including well settled constitutional law and practices. Direct effect could be of monumental import and may finally serve to kick start the real business of integration within ECOWAS.Footnote 62

Footnotes

Ibid

References

1 Mauritania ceased to be a member in 2002. ECOWAS now has 15 members. It is instructive to note that some members of ECOWAS are also members of the West African Economic and Monetary Union and the Community of Sahel-Saharan States.

2 See the text of the Treaty of the Economic Community of West African States reproduced in 1975 UN Treaty Series 1010, 17.

3 ECOWAS is one of the eight regional economic communities that are to be the building blocks of the African Economic Community.

4 The Revised Treaty, which is the current treaty, was accepted in July 1993 in Cotonou, Benin and entered into force in 1993. The text is available at:<http://www.comm.ecowas.int/sec/index.php?id=treaty&lang=en> (last accessed 19 June 2011). The Revised Treaty is a product of a Committee of Eminent Persons established in 1990 to review the ECOWAS treaty.

5 Until January 2007, the ECOWAS Commission was known as the Executive Secretariat. The ECOWAS Commission is now composed of nine members.

6 See art 6 of the Revised Treaty.

7 [1963] ECR 1.

8 See sec 12(1) of the 1999 Constitution of the Federal Republic of Nigeria, which provides: “No treaty between the Federation and any other country shall have the force of law except to the extent to which any such treaty has been enacted into law by the National Assembly.” See Registered Trustees of National Association of Community Health Practitioners of Nigeria v Medical and Health Workers Union of Nigeria [2008] 2 NWLR (pt 1072) 575.

9 Sec 75(1) of the 1992 Constitution of Ghana provides that the president may execute or cause to be executed treaties, agreements or conventions in the name of Ghana. Sec 75(2) provides that a treaty, agreement or convention executed by or under the authority of the president shall be subject to ratification by (a) an act of Parliament or (b) a resolution of Parliament supported by the votes of more than half of all the members of Parliament. See Dankwa, EO “Implementation of international human rights: Ghana as an illustration” (1991) 3 African Society of International & Comparative Law ProceedingsGoogle Scholar 57.

10 See art 40(4)ii of the 1991 Sierra Leone Constitution.

11 Sec 79(1)c of the 1997 Gambian Constitution.

12 Sec 57 of the Liberian Constitution.

13 See sec 1(1) of the 1999 Nigerian Constitution. See also sec 1(2) of the Constitution of Ghana: “The Constitution shall be the supreme law of Ghana and any other law found to be inconsistent with any provision of this Constitution should, to the extent of the inconsistency, be void.”

14 See the African Charter on Human and Peoples' Rights (Ratification and Enforcement) Act, cap A9 Laws of the Federal Republic of Nigeria 2004.

15 (2000) 6 NWLR (pt 660) 228. See also Ogugu v State (1994) 9 NWLR (pt 366) 1.

16 See Oshevire v British Caledonian Airways Ltd (1990) 7 NWLR (pt 163) 507 at 519–20: “An international agreement embodied in a convention or treaty is autonomous, as the high contracting persons have submitted themselves to be bound by its provisions which are above domestic legislation. Thus any domestic legislation in conflict with the convention is void.” See also UAC (NIG) Ltd v Global Transport SA (1996) 5 NWLR (pt 448) 291.

17 See however Enabulele, AO “Implementation of treaties in Nigeria and the status question: Whither Nigerian courts” (2009) 17 African Journal of International and Comparative LawCrossRefGoogle Scholar 326 supporting the view of the minority judgment in Abacha, above at note 15, that domesticated treaties are not superior to municipal legislation.

18 [1993] NLPR 73.

19 Id at 82.

20 See Jinadu J in Abiola v Abacha [1998] 1 HRLRA who pointed out that, because of this fact, Nigerian courts will interpret domestic statutory laws in such a way that they are compatible with Nigeria's responsibility not to be in breach of international laws.

21 See art 1 of the Revised Treaty.

22 These protocols are available at: <http://www.ecowas.int> (last accessed 5 March 2010).

23 See art 9(5) and (6) of the Revised Treaty.

24 Protocol A7P.3/5/82 Relating to the Definition of Community Citizen defines the criteria for ECOWAS citizenship.

25 Art 27 provides that: “(1) citizens of member states shall be regarded as Community citizens, and accordingly Member States undertake to abolish all obstacles to their freedom of movement and residence within the Community. (2) Member States shall by agreements with each other exempt Community citizens from holding visitor's visas and residence permits and allow them to work and undertake commercial and industrial activities within their territories.”

26 Protocol A/P.1/5/79 adopted in Dakar, Senegal on 29 May 1979.

27 See Supplementary Protocol A/SP/.17/86 on the Second Phase (Right of Residence) of the Free Movement Protocol.

28 Id, art 4 exempts the civil service of a member state unless the national laws provide otherwise.

29 Supplementary Protocol A7SP.2/5/90 on the Implementation of the Third Phase (Right of Establishment) of the Free Movement Protocol.

30 A chronicle of the implementation of the Free Movement Protocol can be seen in the following works: Onwuka, RI “The ECOWAS Protocol on the Free Movement of Persons: A threat to Nigerian security?” (1982) 81 African AffairsGoogle Scholar 193; Afolayan, AA “Immigration and expulsion of ECOWAS aliens in Nigeria” (1988) 22 International Immigration ReviewGoogle Scholar 4; Brown, ML “Nigeria and the ECOWAS Protocol on Free Movement and Residence” (1989) 27 The Journal of Modern African StudiesGoogle Scholar 251.

31 See J Agyei and E Clottey “Operationalising ECOWAS Protocol on Free Movement of People Among the Member States: Issues of convergence, divergence and prospects for sub-regional integration”, available at: <http://www.imi.ox.ac.uk/pdfs/CLOTTEY%20and%20AGYEI.pdf> (Last accessed 23 July 2009).

32 Ibid (footnotes omitted).

33 Suit no ECW/CCJ/APP/01/03.

34 The functions of the Council of Ministers include: making recommendations to the Authority on any action aimed at attaining the objectives of the community; by the powers delegated to it by the Authority, issue directives on matters concerning co-ordination and harmonization of economic integration policies; and requesting the Community Court of Justice to give an advisory opinion on any legal question.

35 Established by art 14 of the Revised Treaty.

36 Established by art 21 of the Revised Treaty.

37 Based on art 4(e) and art 11 of the ECOWAS Treaty, the ECOWAS Court was established in 1991 through Protocol A/P/1/7/91 of 6 July 1991 on the Community Court of Justice (1991 ECOWAS Court Protocol). A supplementary protocol A/SP.1/01/05 of 2005 (2005 ECOWAS Court Protocol) amended the 1991 protocol.

38 Inserted by the 2005 ECOWAS Court Protocol.

39 On a comparative note see art 32 of the Protocol Establishing the SADC Tribunal. In Loius Fick v Government of the Republic of Zimbabwe (case no 77881/2009), the High Court of South Africa (Gauteng division) registered the rulings of the South African Development Community (SADC) Tribunal delivered on 28 November 2008 (Mike Campbell PVT v The Republic of Zimbabwe: SADC (T) case no 2/2007) and 5 June 2009 (Mike Campbell v Republic of Zimbabwe: SADC(T) 03/2009). For an overview of these cases, see Ruppel, OC “The SADC Tribunal, regional integration and human rights: Major challenges, legal dimensions and some comparative aspects from the European legal order” (2009) 2 Recht in AfrikaGoogle Scholar 213.

40 Chap F35 Laws of the Federation of Nigeria 2004.

41 It is generally acknowledged that it was the denial of access to Mr Afolabi in Olajide, above at note 33, that precipitated the review that led to the 2005 ECOWAS Court Protocol and the grant of individual access to the court.

42 By the provisions of art 10(c) of the 2005 ECOWAS Court Protocol, individuals and corporate bodies can bring proceedings to determine an act or inaction of a community official which violates their rights. By art 10(d) of the same protocol they can also bring an application for relief for the violation of their human rights.

43 ECW/CCJ/APP/08/08 (judgment delivered on 27 October 2009).

44 See the cases of Okogie v Attorney General of Lagos State (1981) 2 NCLR 350 and Oronto Douglas v Shell Petroleum Development Company Limited (1999) 2 NWLR (pt 591) 466. See Ibe, S “Beyond justiciability: Realising the promise of socio-economic rights in Nigeria” (2007) 7 African Human Rights Law Journal 225Google Scholar.

45 See for example the cases of Adesanya v President of the Federal Republic of Nigeria 1981 1 All NLR 1 and Thomas v Olufosoye (1986) 1 NWLR (pt 18) 669.

46 (2001) AHRLR 60.

47 Above at notes 45 and 44 respectively.

48 Case no ECW/CCJ/JUD/06/08 of 27 October 2008.

49 The African Court of Human Rights was established pursuant to the Protocol to the African Charter on Human and Peoples' Rights on the Establishment of the African Court of Human and Peoples' Rights (The Protocol on the African Court of Human Rights) adopted by the Organization of African Unity at a meeting in Burkina Faso and entered into force on 25 January 2004. There is no provision for the direct effect of the judgments of this court. In this regard rule 61(5) of the court's interim rules provides that the court's judgments shall be binding on the parties. In addition, art 30 of the Protocol on the African Court of Human Rights provides that the states parties to the protocol undertake to comply with the judgment in any case to which they are parties within the time stipulated by the parties. The question of the direct effect of the judgments of the court will become of more importance since it has began work and delivered its first judgment. See In the Matter of Michelot Yogombaye v The Republic of Senegal: application no 001/2008 (judgment delivered on 15 December 2009), available at: <http://www.africancourtcoalition.org/content_files/files/case_No1_2008_Yogogomabye_v_Senegal.pdf> (last accessed 7 May 2010).

50 See HN Donli “The law, practice and procedure of the Community Court of Justice: Meaning and implication” (paper presented at the Workshop on Law Practice and Procedure of the Community Court of Justice – ECOWAS, organized by the West African Human Rights Forum, Bamako, Mali, 7–9 December 2006), available at: <http://www.crin.org/docs/ECOWASmeaning.doc> (last accessed 23 July 2009).

51 See Danish Institute for Human Rights “African human rights complaints handling mechanism” (2008) at 112, available at: <http://humanrights.inforce.dk/files/Importerede%20filer/hr/pdf/Dokumenter%20til%20Nyhedsarkiv/African_HR_Complaints_Handling_Mechanisms.pdf> (last accessed 18 June 2011): “The legal framework of the ECOWAS Court is silent on the question of cooperation. Art 10(f), as inserted by the 2005 ECOWAS Court Protocol, allows some form of relationship with national courts in the sense that it allows national courts to refer questions on the interpretation or application of the ECOWAS Treaty and other legal instruments to the national courts, whenever such questions arise in cases before national courts”.

52 See above at note 50.

53 The text of the treaty is available at: <http://www.jurisint.org/Ohada7text.01.en.html (last accessed 28 July 2009).

54 The original members of OHADA are Benin, Burkina Faso, Central Africa Republic, Chad, Cameroon, Comoros, Congo, Côte d'Ivoire, Equatorial Guinea, Gabon, Mali, Niger, Senegal and Togo. Guinea and Guinea Bissau joined later.

55 Benin, Burkina Faso, Côte d'Ivoire, Guinea, Guinea-Bissau, Mali, Niger, Senegal and Togo.

56 See art 13 of the OHADA Treaty.

57 See id, art 3.

58 To date it has issued the following uniform acts: Uniform Act Relating to General Commercial Law; Uniform Act Relating to Commercial Companies and Economic Interest Groups; Uniform Act Relating to Organizing Securities; Uniform Act Organizing Simplified Recovery Procedures and Measures of Execution; and Uniform Act Organizing Collective Proceedings for Wiping of Debts.

59 See Rules of Procedure of the Joint Court of Justice and Arbitration, available at: <http://www.juriscope.org> (last accessed 27 July 2009).

60 See Dickerson, CM “Harmonising business laws in Africa: OHADA calls the tune” (2005) 44 Columbia Journal of Transnational LawGoogle Scholar 17.

61 See Kuffuor, KThe Institutional Transformation of the Economic Community of West African States (2006, Ashgate)Google Scholar at 91–112.

62 See R Oppong “Making regional economic community laws enforceable in national legal systems: Constitutional and judicial challenges” in A Bosl, T Hartzenberg, W Breytenbach, C Mccarthy and K Schade (eds) Monitoring Regional Integration in Southern Africa Yearbook, Vol 8, available at:<http://www.tralac.org/cause_data/images/1694/MRI2008Chapter7Oppong.pdf> (last accessed 3 April 2010).