Rights groups sue Gambia over access to ECOWAS court
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Abuja, Nigeria - The Registered Trustees of the Socio-Economic Rights
and Accountability Project (SERAP) and the Centre for Defence of Human
Rights and Democracy in Africa (CDHRDA) have asked the Community Court
of Justice of the Economic Community of West African States (ECOWAS)
in Abuja, the Nigerian capital, to stop the Government of Gambia and
the ECOWAS Commission from amending the laws concerning the
jurisdiction and access to the Community Court.

The Gambian proposals, which have been submitted to the ECOWAS
Commission and which are being discussed by the Commission's experts
in Abuja, call for the incl usion of a requirement for a petition for
the violation of human rights to the Court to exhaust domestic
remedies before the matter is taken to the Community Court of Justice;
and to limit the jurisdiction of the Court with regards to human
rights to treaties alr eady ratified by the Member State before the
Court.

The proposals also call for amendment of Article 76(2) of the Revised
ECOWAS Treaty to create an appeals procedure for all decisions of the
Community Court.

But in its suit No ECW/CCJ/APP/11/09 and Exparte Motion and Motion on
Notice, filed on 28 September before the Community Court of Justice in
Abuja by SERAP and CDHRDA through their lawyer, Mr. Femi Falana, the
groups are challenging the legality and propriety of the Gambian
proposal.

According to the groups, â?the proposal to make access to the
Community Court of Justice subject to exhaustion of local remedies
will limit access of the Community citizens to the Court with respect
to the protection of human rights and weaken the ability of the Court
of Justice to effectively exercise its jurisdiction and to advance the
objectives and fundamental principles of the Community.

The proposals are also retrogressive and inconsistent with the
flexible and progressive interpretation of the rule of exhaustion of
domestic remedies as reflected in international legal jurisprudence,'
the groups said.

The groups also argued that, 'The proposal by the Gambia to amend
Article 76(2) of the Revised ECOWAS Treaty to create an appeals
procedure for all decisions of the Community Court while the decision
of the 56th Ordinary Session of the Council of Ministers directing the
ECOWAS Commission and Court of Justice to study the proposal was still
pending and yet to be implemented, was unlawful in that it undermined
the fundamental principles of the Community, and violated the Gambian
o bligations under the Treaty, including requirements for all Member
States to comply with decisions and regulations of the Council, and to
refrain from any action that may hinder the objectives of the
Community.

"It will seriously prejudice the outcome of the study by the
Commission and the Court and will undermine and render nugatory the
decision and authority of the Council of Ministers, especially under
Article 10 of the Revised ECOWAS Treaty.'

'The proposals by The Gambia amount to a serious breach of the
international obligation of good faith, given that The Gambia
continues to refuse and/or neglect to comply with the July 2008
judgement and orders of the Community, including the decision ordering
the Gambian government to release Chief Ebrima Manneh, a former
reporter from the Daily Observer who was arrested in 2006, and to pay
him US$ 100,000," the groups said.

Under Article 15 of the Revised ECOWAS Treaty, the Judgements of the
Court of Justice shall be binding on the Member States, the
Institutions of the Community and on individuals and corporate
bodies'.

"It said that therefore, the persistent failure by The Gambian
government to comply with the decisions of the Court was a breach of
this provision,â? the groups further argued.

'The aspect of the proposed amendment introducing a time limitation of
12 months within which a petition should be submitted to the Community
Court of Justice after exhaustion of domestic remedies will weaken the
Community because it could be saddled by illegalities that cannot be
challenged just because 12 months have lapsed after such illegalities
were challenged before a domestic legal system that is corrupt and
unduly prolonged," the groups said.

This proposal is discriminatory as it introduces a time limitation of
12 months on natural legal persons but not on the Governments or
Governments' institutions', the groups further argued.

The groups insist that the case was properly brought before the
Community Court of Justice as the Court has jurisdiction on matters
that pertain to interpretation of the Revised ECOWAS Treaty (1993) and
the Supplementary Protocol A/SP.1/01/05.

The groups therefore prayed the ECOWAS Court for the following
reliefs: 1. A DECLARATION that the process of amendment proposed by
the Republic of The Gambia to the ECOWAS Commission for the ECOWAS
Treaty (1993) and the Supplementary Protocol A/SP.1/01/05 relating to
the Community Court of Justice infringes the provisions of the ECOWAS
Treaty and the Supplementary Protocol, as well as peremptory norms of
international law.

2. A DECLARATION that the entire process of amendment proposed by the
Republic of The Gambia to the ECOWAS Commission for the ECOWAS Treaty
(1993) and the Supple mentary Protocol A/SP.1/01/05 relating to the
Community Court of Justice is unlawful and of no legal effect because
its continuing disobedience to the judgments and orders of the
Community Court of Justice.

3. A DECLARATION that the process of amendment proposed by the
Republic of The Gambia to the ECOWAS Commission for the ECOWAS Treaty
(1993) and the Supplementary Protocol A/SP.1/01/05 relating to the
Community Court of Justice shall comply with objectives and
fundamental principles of the Community under the Revised ECOWAS
Treaty and the Supplementary Protocol, and other Community treaties
and protocols.

4. AN ORDER OF INJUNCTION restraining the Defendants individually
and/or collect ively from proceeding with the proposed amendment
relating to Article 76(2) of the Revised ECOWAS Treaty, pending the
full and effective implementation of the decision of the 56th Ordinary
Session of the Council of Ministers directing the ECOWAS Commission
and Court of Justice to study the proposal to establish an appeals
procedure that would allow parties to appeal against decisions of the
Community Court of Justice.

Abuja - 29/09/2009

Pana

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