CEEAOBy Andrew W. Maki

On November 20, 2009, the Council of Ministers of the Economic Community of West African States (ECOWAS) will meet to discuss proposals pending before the Assembly. A proposal put forth by the Gambian government to restrict access to the ECOWAS Community Court of Justice promises to be amongst the most contentious issues that will be discussed.

The two components of the Gambian proposal that have elicited the strongest backlash are amendments to Articles 9(4) and 10(d) of the Supplementary Protocol A/SP.1/01/05 of the Community Court of Justice. Article 9(4) provides that “the Court has jurisdiction to determine cases of violation of human rights that occur in any Member State.” Article 10(d) provides that “access to the Court is open to . . . individuals on application for relief for violation of their human rights.” The proposed amendments seek to curtail the reach of both articles by inserting two additional requirements: first, that access to the court is limited to instances where domestic remedies have been exhausted; second, that the subject matter of any human rights claim falls within the scope of international human rights instruments ratified by the respondent country.

Within ECOWAS, the Gambian government’s proposal has received strong criticism from legal experts. The Gambian Foroyaa newspaper reported that, in a meeting of legal experts convened by the ECOWAS Commission from September 28 to October 3 to discuss the Gambian proposals, representatives of all ECOWAS Member States except The Gambia expressed criticism of the proposals. Subsequently, at a meeting from October 5 to October 7 of the ECOWAS Ministers of Justice, the Gambian proposal was rejected unanimously.

Civil society organizations have also rebuked the Gambian government’s proposal. The Socio-Economic Rights and Accountability Project (SERAP) and the Centre for Defence of Human Rights and Democracy in Africa (CDHRDA) have initiated legal action against The Gambia before the ECOWAS Community Court of Justice in Abuja. In their suit (No ECW/CCJ/APP/11/09), filed on September 28, SERAP and CDHRDA challenge the legality of the Gambian proposal under the ECOWAS Treaty. The lawsuit requests declarations by the Community Court of Justice that the Gambian proposal “infringes [on] the provisions of the ECOWAS Treaty and the Supplementary Protocol,” and “is unlawful and of no legal effect because of [The Gambia’s] continuing disobedience [of] the judgments and orders of the Community Court of Justice.”

While the potentially negative results of limiting the subject matter jurisdiction of the court to international human rights instruments ratified by respondent countries are clear, the negative results of requiring claimants to exhaust local remedies are not. Indeed, it has been argued that requiring the exhaustion of local remedies (the local remedies rule) carries with it numerous benefits.

Requiring lawsuits to be filed within domestic courts before they are brought to an international forum prevents the creation of separate yet contradictory interpretations of law between Member State national courts and the Community Court of Justice. Local proceedings may also be cheaper and more effective by virtue of their proximity to the location of the alleged human rights violation. Moreover, because Article 76 of the ECOWAS Revised Treaty states that rulings of the Community Court of Justice are “final and shall not be subject to appeal,” first instance lawsuits filed before the Community Court of Justice forego the potential benefits of judicial review. By contrast, the local remedies rule safeguards all parties’ opportunity to file an appeal against an erroneous ruling in a first instance trial.

Additionally, lodging a complaint against a government for human rights violations in national courts provides a government the opportunity to respond without the requisite drama of a lawsuit on an international stage. The prospect of subsequent review by the Community Court of Justice may provide complainants the opportunity to obtain more generous settlements at the domestic level, and may encourage domestic courts to more closely track international standards.

Indeed, on account of the many benefits of requiring exhaustion of local remedies, the local remedies rule is widely implemented at both the global and regional levels. At the global level, Article 2 of the Optional Protocol of the International Covenant on Civil and Political Rights requires that the complainant have “exhausted all available domestic remedies,” before submitting a complaint to the Commission. At the regional level, Article 50 of the Charter establishing the African Court of Human and Peoples’ Rights requires that “all local remedies, if they exist, have been exhausted” before the Court may exercise jurisdiction. Similarly, the local remedies rule is present within Article 35(1) of the European Convention on Human Rights and Article 46(1)(a) of the American Convention on Human Rights.

In light of the potential benefits of the local remedies rule proposed by the Gambian government, a critical and balanced debate is warranted. Whether the ECOWAS Council of Ministers will take advantage of this opportunity and reject the position set forth by the Ministers of Justice remains to be seen.