By Andrew W. Maki
On February 17, 2010, the Economic Community of West African States (ECOWAS) Community Court of Justice granted Gambia’s request to postpone until April 27, 2010 the initial hearing in the case of Gambian journalist Musa Saidykhan. In November 2007, the human rights watchdog Media Foundation for West Africa initiated the lawsuit against Gambia on behalf of Saidykhan, who currently resides in exile in the United States. The complaint alleges that Saidykhan, former Editor-in-Chief of the Gambian Independent, was detained and tortured by the Gambian National Intelligence Agency on March 28, 2006 after the newspaper printed the names of suspects in the March 21, 2006 attempted coup d’état. At the initial hearing, Saidykhan and his doctor were scheduled to give testimony concerning the injuries he sustained while in detention. Although Gambia’s history of contentious relations with the Court makes implementation of an outcome in Saidykhan’s favor questionable, Gambia’s continued engagement with the Court and other ECOWAS organs is reason for optimism.
President Yahya Jammeh has refused to enforce another Court ruling against the Gambian government and has spearheaded an effort to place additional limits on access to the Court. In a case with similar facts to Saidykhan’s, the Court on June 5, 2008 declared the arrest of Gambian reporter Ebrima Manneh “illegal” and urged the Gambian government to release Manneh from their custody and pay him U.S. $100,000 in damages. In spite of widespread criticism and in contravention of Article 24 of the 2005 Supplementary Protocol of the Court, which states that its rulings are binding on Member States, the Gambian government has refused to comply with the ruling. Additionally, in an effort to limit individuals’ standing before the Court, in September 2009 Jammeh attempted to amend the Court’s protocol to make exhaustion of domestic remedies a prerequisite.
Notwithstanding Jammeh’s overt protest of the Court, Gambia’s continued engagement with the Court and other ECOWAS institutions and agencies may tacitly bolster the legitimacy of the sub-regional court. By participating in Court proceedings, even when such involvement entails submitting requests for postponement, Gambia demonstrates recognition of the Court’s authority. Indeed, Gambia’s latest maneuver in the Saidykhan case marks the second occasion on which government lawyers have contested the proceedings, thereby demonstrating a genuine concern for potential outcomes. The Court’s legitimacy may also be augmented by Gambia’s involvement in other associated ECOWAS institutions, such as the Commission, and its ratification of ECOWAS treaties. For example, Gambia is currently undergoing the process of acceding to the 2009 ECOWAS Convention on Small Arms and Light Weapons, Their Ammunition, and Other Related Materials. By serving as a platform for the mediation of conflicts and partnership in a broad range of areas including economic and security affairs, ECOWAS organs and treaties create interdependencies between Member States and may provide a venue for political pressure to encourage Gambia to execute the Court’s future rulings.
If engagement fails to induce Gambia’s future compliance in the Saidykhan case, sanctions could result. According to Article 77 of the 1993 revised ECOWAS Treaty, “Where a Member State fails to fulfill its obligations to the Community, the [ECOWAS Authority of Heads of State and Government] may decide to impose sanctions on that Member State.” The fact that the Authority did not sanction Gambia as a result of its non-compliance with the Manneh judgment demonstrates that this power is not readily invoked. However, Gambia’s greater involvement in the Saidykhan case may indicate a change in Gambia’s relationship with the Court toward greater compliance.