INTEGRATION OF THE ECONOMIC COMMUNITY OF WEST AFRICAN STATES (ECOWAS) THROUGH THE LAW
INTEGRATION OF THE ECONOMIC COMMUNITY OF WEST AFRICAN STATES (ECOWAS) THROUGH THE LAW
Ace Anan Ankomah & Nania Owusu-Ankomah Sackey•
The true measure of the success of legal integration is not whether the integrated legal system is technically sound and functional, but whether the system actually promotes the achievement of the integrational objectives.
http://modernsmile.com/products/modernsmile-white-boost/ Introduction
Precolonial Africa did not have the modern day borders that divide us. Great nations such as Asante, Dahomey, Ghana, Mali, Songhai, became great powers on the back of their ability to trade freely with their neighbours. We belonged to different tribes and nations, with differences and war sometimes, but we were conscious of our common humanity and identity.
That is why colonialism could only succeed and thrive by dividing us, not only through a European concept of borders, but by the imposition of European legal systems. That was the foundation of the differences we now encounter. That is why between 1884 and 1885, the then European powers met in Berlin to divide Africa up in the most arbitrary of fashions and according to their preferences on where the most natural resources were. Indeed, some nations were carved out as the personal property of some European rulers. In 1874, a full decade before the Berlin Conference that formally ‘balkanised’ Africa, Great Britain had declared the then Gold Coast a colony and imposed their system of law, the common law, on us.
European powers unleashed on us almost a century of the oppression and domination called ‘colonialism,’ where the colonialists had free rein over us and access to resources across the continent. They shipped these resources to their countries to enrich themselves at the expense of the people who owned those resources. How were they able to do this? It was in part because they had imposed different legal systems on us, country by country. Fact: several western economies today were built on the back of African resources. When people speak of Africa’s “resource curse” maybe it is because the curse began with the European’s forcible, yet ‘legal’ seizure of those resources and benefitting from them while the true owners, earned next to nothing. The legal system to fight this did not exist because that law was their law.
But, six decades after Ghana led in the fight for independence, every excuse that we have had and every blame that we may have heaped on the European powers have begun to wear thin. A divided West Africa may still benefit the West but it is now our problem. A West Africa that remains poor and yet still hugs and clings to the colonial boundaries and colonial laws that restrict the interaction between its people, simply on account of the ‘accident’ of their nationality, is West Africa’s problem to resolve.
Enter the Economic Community of West African States (ECOWAS) with its simple core vision: to foster the political and economic integration of the 15 West African countries. Key to economic and political integration is a legal framework that regulates economic relationships and informs political decisions. That is why under Article 3(h) of the ECOWAS Revised Treaty, Member States dedicate themselves to establish an enabling legal environment for integration.
This paper examines some ways to create that legal environment for a better integration. It identifies three avenues for this, namely:
(i) Establishing a Community legal order or hierarchy of laws that recognises ECOWAS laws (“Community Law”) at the top of the hierarchy;
(ii) Providing legal education on Community Law within Member States; and
(iii) Providing avenues to enforce judgments of the ECOWAS Court of Justice (“Court of Justice”) in national courts, and cross-border judgments from the national courts of Member States.
This paper posits that economic and political integration will largely depend on a sufficient integration of the legal systems of the Member States. This will ensure uniform applicability, interpretation and enforcement of Community Law. It also proposes steps to standardise the legal environment across the region to achieve the desired political and economic integration.
http://preferredmode.com/tag/bar-spin/ ECOWAS Supranationality and the Community Legal Order
A clear legal order within ECOWAS is a pre-requisite to successful integration. Regional integration demands that both Community Law and the national laws of the individual Member States must co-exist and regulate the lives of the citizens of the Member States. This naturally creates tension between the different national laws of the Member States inter se, and between municipal laws and Community Law. This tension presents a major constitutional challenge to regional integration, and it therefore requires a clear agreement on the hierarchy of laws within ECOWAS. The effect would be that state sovereignty would, to some extent, be limited so that Community Law is recognised as superior to municipal laws. This requires a hierarchical relationship where national courts recognise and are bound by Community Law. National courts would rely on and be bound by the interpretation given by the Court of Justice on provisions of Community Law to ensure consistent interpretation of that law. Member States and citizens should invoke and rely on Community Law before their national courts.
The sources of Community Law are
(i) the Revised ECOWAS Treaty,
(ii) the Treaties and Protocols made by the Authority of Heads of State and Government Pursuant to the Revised Treaty,
(iii) Regulations made by the Council of Ministers, and
(iv) Judgments of the Court of Justice.
Thus the key point is to ensure that Member States recognise Community Law and treat them as superior to municipal laws on issues that touch on economic integration. That presents the question whether Member States have the political will to cede part of their sovereignty to prioritise Community Law. Without that, the economic and political integration will be a very high, if not impossible, hill to climb. Establishing an agreed and clear hierarchy within Member States will significantly bolster integration through law within ECOWAS.
Legal Education on Community Law within Member States
Creating and maintaining awareness among the citizens of Member States about ECOWAS, its vision, the legal obligations of the Member States, and the fundamental laws governing the Community is an integral part of integration. Legal education on Community Law must therefore take centre-stage.
Speaking from Ghana, the law curriculum of the various law schools does not include modules specifically relating to ECOWAS, its laws and how these laws interact in the daily lives of citizens. At best it forms a small part of the curriculum for Public International Law, an elective course. It may also feature as part of the syllabus for international studies but certainly does not involve in-depth analysis of the Community Law and its interaction with the citizens of Member States. This must change.
Making the Community Law an integral part of the legal and diplomatic training in Member States will create awareness, encourage acceptance and facilitate better interaction among ECOWAS citizens. Potentially it could create (i) niche specialisation by lawyers within Member States on Community Law, issues and disputes, and (ii) an enabling environment for lawyers within the Member States to explore employment and professional opportunities across ECOWAS. These will boost cross-border activity among the legal profession.
Member States would also have to explore standardising the municipal rules that regulate qualification of lawyers within Member States to be called to the Bar and practice. This is arguably a sensitive area as it appears that in the area of legal practice, Member States are set up to protect that turf from non-nationals. And this is exacerbated by the sharp divide between the common law countries and the civil law countries. Thus cross-border legal practice in ECOWAS is largely unexplored. However, integration would require facilitation of cross-border legal practice and the attendant standardisation of the legal market across ECOWAS. The corollary effect may be greater competition within the legal sector which could lead to raising the standards within the profession.
Enforcement of Judgments of the ECOWAS Court of Justice and National Courts
Enforcement of ECOWAS Court Judgments
The 1975 ECOWAS Treaty provided for the creation of a court to adjudicate disputes. The combined effect of Articles 6 and 15 of the Revised ECOWAS Treaty 1993 created the Court of Justice to do just that. The 1991 Protocol on the Court established the details for its operation and the jurisdiction as spelt out in Article 9, that the court “shall ensure the observance of law and the principles of equity in the interpretation and application of the provisions of the Treaty.” Article 9 of the 2005 ECOWAS Protocol provides the mandate of the Court to be, among others, adjudicating disputes relating to the interpretation and application of Community Law and determining the failure of Member States to Community obligations.
The ability of an ECOWAS citizen to invoke Community Law, rely on it before a national court and for that national court to be bound to follow that Community Law, are important aspects of integration through the law. The judgments of the Court of Justice are therefore an important source of Community Law. Article 15(4) of the Revised Treaty provides that the judgments of the Court are binding on the Member States, the Institutions of the Community and on individuals and corporate bodies. The reference to ‘Member States’ will include the judicial bodies or national courts in these States.
Article 19(2) of the 1991 ECOWAS Court Protocol makes the decisions of the Court of Justice immediately binding and Article 22(3) requires both Member States and ECOWAS Institutions, which are to take all measures necessary to enforce and execute the Court’s judgments. Since no judgment is self-executing and the machinery of national courts would be relied upon to enforce judgments, those courts represent a critical institution within ECOWAS to enforce Community Law and the decisions of the Court of Justice.
Nwauche makes the same point when he opines that national courts enable citizens to ensure that as primary beneficiaries of the integration process, they are able to implement Community Law or enforce Court of Justice decisions. He therefore agrees that the national courts represent an important institution and step to achieving ECOWAS’ integration objectives.
Yet, the ECOWAS Revised Treaty, which is the basis of the ECOWAS legal system, provides in Article 5(2) that its applicability in Member States depends on the manner in which it is incorporated into the State’s legislation. It is a notorious fact that the Anglophone Member States are dualist States and therefore treaties do not have automatic application unless ratified or passed by a resolution of their parliament and, arguably, incorporated into national law. In Ghana, Article 75 of the Fourth Republican Constitution provides as follows:
Execution of treaties.
(1) The President may execute or cause to be executed treaties, agreements or conventions in the name of Ghana.(2) 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 one-half of all the members of Parliament.
Ghana’s the Supreme Court in its interpretation and application of Article 75 appears to go a step further to require not just parliamentary ratification but full incorporation by statute. In Republic v. High Court (Commercial Division, Accra), ex parte Attorney-General (NML Capital Ltd and Republic of Argentina – Interested Parties), per Dr. Date-Bah JSC the Court stated that
Treaties, even when the particular treaty has been ratified by Parliament, do not alter municipal law until they are incorporated in Ghanaian law by appropriate legislation… The mere fact that a treaty has been ratified by Parliament… does not, of itself, mean that it is incorporated into Ghanaian law. A treaty may come into force and regulate the rights and obligations of the state on the international plane, without changing rights and obligations under municipal law. Where the mode of ratification adopted is through an Act of Parliament, that Act may incorporate the treaty, by appropriate language, into the municipal law of Ghana… The need for the legislative incorporation of treaty provisions into municipal law before domestic Courts can apply those provisions is reflective of the dualist stance of commonwealth common law Courts and backed by a long string of authorities…
This dictum however emphasises that when a state ratifies a treaty, it assumes rights and obligations under the treaty “on the international plane” even though the state might not have domesticated the treaty. And, Article 40 of the Ghanaian Constitution specifically provides that Ghana should adhere to the guiding principles of the ECOWAS Treaty. It provides specifically as follows:
International relations.
In its dealings with other nations, the Government shall…
(c) promote respect for international law, treaty obligations and the settlement of international disputes by peaceful means;
(d) adhere to the principles enshrined in or as the case may be, the aims and ideals of,
(i) the Charter of the United Nations;
(ii) the Charter of the Organisation of African Unity;
(iii) the Commonwealth;
(iv) the Treaty of the Economic Community of West African States;
(v) any other international organisation of which Ghana is a member [Emphases added.]
Thus while the ECOWAS Treaty may not be directly enforceable as law in Ghana because of the lack of parliamentary ratification, Ghanaian courts have an obligation to respect the treaty and be guided by Ghana’s obligations in their decisions. In Gorman & Others v. The Republic, Ocran JSC referred to Article 40 and stated that it is state policy to promote respect for treaty obligations. He held that “under this Article, the promotion of respect for treaty obligations and for international law in general is viewed as a principle of state policy.” In Tsikata v. The Republic, Adinyira JSC said treaty obligations constituted a moral obligation not to deviate from its objects. She stated that “signing a treaty imposes a moral obligation on the State not to do anything that would deviate from the object and purpose of the treaty. A state becomes legally bound to a treaty after ratification, accession, acceptance, approval or signature where the treaty so stipulates.” And in New Patriotic Party v. Inspector General of Police, Archer CJ stated that a yet-to-be ratified can be invoked and depended on. He stated as follows:
Ghana is a signatory to this African charter, and member states of the Organisation of African Unity and parties to the charter are expected to recognise the rights, duties and freedoms enshrined in the charter and to undertake to adopt legislative or other measures to give effect to the rights and duties. I do not think that the fact that Ghana has not passed specific legislation to give effect to the charter, means the charter cannot be relied upon.
According to Nwauche, the Anglophone ECOWAS countries (Ghana, Nigeria, Sierra Leone, Gambia and Liberia) have not domesticated the ECOWAS Revised Treaty and therefore it is not directly enforceable in these countries. He also states that in practice, the Revised Treaty is not directly applicable even in Francophone ECOWAS countries, although they are monist countries, and that some level of legislative activity including revising the state’s constitution may be required before a treaty takes effect. He adds that sometimes this could depend on the reciprocal enforcement of international law by other states. It appears therefore that it is only the two Lusophone countries, Cape Verde and Guinea-Bissau, which directly apply the ECOWAS Revised Treaty. There is therefore no uniform practice among the Member States on the status of Community Law and how it applies in each country, or uniformity regarding how it may be invoked before national courts.
There is also no uniform, accepted or agreed position on the status of the Court of Justice’s judgments within Member States. It would appear that decisions of the Court of Justice are not directly enforceable in national courts. In the Ghanaian case of Re Chudi Mba for instance, the applicant had sought an order from the High Court of Ghana to enforce default judgment obtained from the Court of Justice, seeking $800,000 award in damages and 500,000 naira in costs after successfully suing the Government of Ghana for alleged violations of his fundamental human rights. The central issue was whether the Court could recognise and enforce the orders or judgment of the Court of Justice. The court held that the statutory regime for enforcing foreign judgments in Ghana operates on the basis of reciprocity and that the Court of Justice is not stated as one of the courts to which the legislation applies. The court refused to enforce the judgment.
This case highlights how the work of the Court of Justice could be undermined when the critical enforcement mechanism is not available in Member States. The Court’s decisions then only become pyrrhic or of moral persuasion only with no real practical value to the party that sought and obtained relief from the Court.
However, there are at least two ways by which ECOWAS could develop an enforcement regime to assist in integrating the law of Member States, namely through the principle of direct effect and through the reciprocal enforcement of treaties. It is to these that we now turn.
Principle of Direct Applicability
Direct effect is a principle of European Union (“EU”) law that enables individuals to immediately invoke an EU provision before a national court or the European Court. This principle was introduced in the case of Van Gend en Loos v Nederlandse Administratie der Belastingen where the European Court of Justice held that provisions of the Treaty Establishing the European Economic Community 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. The court identified three conditions necessary to establish the direct effect of primary EU law, namely that the provision must:
(a) be sufficiently clear and precisely stated;
(b) be unconditional and not depend on any other legal provision; and
(c) confer a specific right upon which a citizen can base a claim.
This approach may be adopted with the necessary modifications to suit ECOWAS’ purposes and context, to ensure the enforceability of the decisions of the Court of Justice. It is arguable that, based on Article 9(6) and (7) of the Revised Treaty, judgments of the Court of Justice were intended to be directly enforceable in Member States. Those provisions say that decisions of the Court shall automatically enter into force after 60 days’ publication in the Community’s Official Journal and shall also be published in the Gazette of Member States within the same period. The language adopted in the provision lends support to the proposition that the principle of direct effect could be applied in the ECOWAS context.
Multi-Lateral Reciprocal Enforcement Treaty
A second and perhaps more preferable way of creating an enforcement regime for Court of Justice judgments is through a multi-lateral reciprocal enforcement Treaties ratified by all Member States. Presently, most Member States already enforce foreign judgments on the basis of reciprocity. In Ghana, for example, the principle of reciprocity is the basis for foreign judgments being recognised and enforced. Specifically, Part V of the Courts Act, 1993 (Act 459) and the Foreign Judgments and Maintenance Orders (Reciprocal Enforcement) Instrument 1993 (LI 1575) specify reciprocity as the basis for enforcing the judgments of specified courts in specified countries whose judgments are registrable and enforceable in Ghana. The only West African courts that receive this favourable treatment in Ghana under LI 1575 are the Cours Supreme and Cours D’ Appel of Senegal.
In circumstances where the judgment of a foreign court is not enforceable, it having been obtained in a country and court that are not listed in LI 1575, the victorious party could institute fresh proceedings in Ghana under common law on the obligation created the foreign judgment. Clearly, instituting fresh proceedings in Ghana is inadequate for regional integration where the Member States must recognise and enforce judgments from the Court of Justice to provide bite to the Court’s decisions. Thus it would appear that what Member States like Ghana have to do is to amend the law to expressly state that the judgments from the Court of Justice and all other superior courts in ECOWAS are enforceable on the basis of reciprocity under the Revised Treaty.
Once again, the EU presents a classic example of how reciprocal enforcement legislation could assist in regional economic and political integration. The EU adopted the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (“Brussels Convention”) on September 27, 1968. The Preamble to the Convention indicates that the Brussels Convention was necessary “to determine the international jurisdiction of their courts, to facilitate recognition and to introduce an expeditious procedure for securing the enforcement of judgments, authentic instruments and court settlements.”
Under Article 31 of the Brussels Convention, a judgment and enforceable in a Contracting State may be enforced in another contracting State if an order for its enforcement has been issued and an interested party applies for enforcement. Further, Article 32 of the Convention sets out the specific courts in the various contracting states where applications for enforcement may be sent. This makes it easy for a party applying for enforcement to know which court has jurisdiction in each Contracting State. Article 37 then sets out the various courts in the different Contracting States where an appeal against the decision authorising enforcement must be lodged. These provisions provide certainty in the enforcement process.
Thus the Brussels Convention afforded the judgment obtained in one Member State recognition and enforceability in all other Member States, with some limited exceptions. This approach radically altered the manner in which judgments were recognised and enforced within the EU, wholly replacing the previously existing convoluted system of bilateral recognition and enforcement treaties existing between Member States.
Similarly, the United Arab Emirates (“UAE”) is party to a number of multilateral conventions on the recognition and enforcement of foreign judgments, including the 1993 Riyadh Convention on the Judicial Cooperation between the States of the Arab League (“Riyadh Convention”), and the 1996 Gulf Cooperation Council Convention for the Execution of Judgments, Delegations and Judicial Notifications (“GCC Convention”).
The Riyadh Convention provides for the recognition and enforcement of both judgments and arbitral awards. In relation to judgments, Article 33 of the Convention provides in explicit terms that an execution order is binding on all parties to an action domiciled in the territory of the contracting party where the judgement was made. A party attempting to enforce a judgment in the jurisdiction where assets are located must obtain a certificate from a judicial authority where the award was granted confirming that the award is enforceable, final and has the power of res judicata. This ensures that the parties cannot re-litigate on the same facts in any other court.
Further, under the Riyadh Convention, a foreign judgement may be enforced in the UAE by a party making a request to the competent court. Once the request is approved, enforcement is carried out. Article 36 provides that writs of execution of a contracting party in whose territory they were issued are enforceable by the other contracting parties in accordance with the procedures for enforcing judgments from national court, provided that it does not conflict with the provisions of Sharia law, the national constitution, public order or the rules of conduct of the contracting party required to give effect to such writs.
Under the GCC Convention, the procedure for executing a judgment is governed by the law of the country where the judgment is executed. It recognises the need for the judgement to conform to the overriding principles of Islamic Sharia law.
A multilateral treaty-based enforcement regime would aid integration within the Community. ECOWAS must consider both the enforcement of judgments of national courts and the enforcement of arbitral awards arising out of proceedings seated in Member States. It is our view that the Organisation for the Harmonisation of Business Law in Africa’s (OHADA) recognition and enforcement structure may provide a viable blueprint for enforcing Community Law and judgments of the Court of Justice and other court judgments in Member States. OHADA is in fact not a regional economic community however its structure for the enforcement of the OHADA court’s judgments are very instructive. Presently, OHADA is applicable in Francophone Member States and is therefore in force in a section of ECOWAS.
The OHADA Common Court of Justice and Arbitration (“CCJA”) is an integral part of its member states’ national judicial systems and functions as their highest national court. The OHADA regime allows national courts and parties to cases before a national court to refer a matter to the CCJA. National courts are also able to seek the advisory opinion of the CCJA on matters before the national court. An example is the CCJA’s 2001 advisory opinion, on Côte d’Ivoire’s request, which concluded that OHADA Uniform Acts abrogate identical, as well as conflicting, national laws and regulations.
The CCJA also receives appeals from private litigants and decisions of cases on the merits. This is in contrast to the European Court of Justice which can receive cases from private parties but then it decides a point of law (akin to a certified question), after which the case returns to the national court for further adjudication. The CCJA’s interpretations of OHADA laws theoretically affect the structure within which private commercial transactions occur i.e. all economic actors from all levels of OHADA Member States’ economies. The decisions of the OHADA court are also immediately binding and enforceable in Member States.
In the ECOWAS context, the reciprocal enforcement of arbitral awards within the Community does not appear to be too problematic. Apart from Guinea-Bissau, Togo, Sierra Leone and Gambia, Member States are parties to the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Award (“New York Convention.”) The easiest way for ECOWAS to ensure enforcement of arbitral awards among all the fifteen Member States is to encourage and put political pressure on the non-Convention Member States to accede to and domesticate the New York Convention. Once they achieve this, ECOWAS Member States would automatically enjoy reciprocal enforcement throughout the Community. This would eliminate the necessity for the Member States to design and ratify a separate convention, which had to be done within OHADA because at the time, seven out of the 17 OHADA countries had not ratified the New York Convention, therefore necessitating the introduction of a wholly new convention for mutual recognition and enforcement of arbitral awards.
In relation to the reciprocal enforcement of judgments within Member States, however, a multi-lateral Convention based on the EU, Arab League or OHADA structure must be introduced to facilitate enforcement of judgments within the Community. The key features that such a Convention or Treaty would include:
(1) mutual recognition and enforcement of the Court of Justice’s judgments and those of other national courts; and
(2) precluding the national courts of Member States from reviewing the merits of such judgments.
Procedure
Enforcing such judgments in national courts may raise its own problems because of the diversity in the constitutions of the various Member States. A key issue that ECOWAS must address in introducing a multilateral treaty enforcement regime is implementation, i.e. how is a foreign judgment or Court of Justice judgment practically going to be enforced?
Under Article 24 of the 1991 Protocol, execution of ECOWAS judgments must be by a writ of execution which the Chief Registrar is required to submit to the Member State. The Member State must then execute the judgment according to its civil procedure rules. This provision allowing enforcement of Court of Justice judgments according to the respective civil procedure rules of Member States may be problematic, considering the differing legal systems and traditions within ECOWAS. In Ghana, for instance, enforcement of a foreign judgment is generally governed by the following:
• Courts Act, 1993 (Act 459), which provides the procedure for registering and enforcing foreign judgments (section 82);
• Foreign Judgments and Maintenance Orders (Reciprocal Enforcement) Instrument, 1993 (LI 1575), which states the countries whose judgments are enforceable in Ghana on the basis of reciprocity; and
• High Court (Civil Procedure) Rules, 2004 (CI 47), which elaborates further on the procedure for registering and enforcing foreign judgments (Order 71).
Under Order 71 of CI 47, a judgment creditor under a foreign judgment must apply to the High Court to have the foreign judgment registered. The application must be made within six years after the date of the judgment or if there has been an appeal, it must be six years after the last judgment. An order may be made by the High Court for a foreign judgment to be registered if the foreign judgment was given by a superior court and was not heard by the superior court on appeal from a court which is not a superior court. The foreign judgment will not be registered if at the date of application, the judgment cannot be enforced by execution in the country of the original court or if the judgment has been fully satisfied.
A registered judgment for the purposes of execution is of the same force and effect as a judgment given by a Ghanaian court, i.e. the foreign judgment will be treated as a judgment originally given in the Ghanaian court and entered on the date of registration. Once the judgment is registered, it may be enforced by any of the methods of enforcement applicable in Ghana. Judgment for the payment of money may be enforced by writs of fieri facias, garnishee orders, charging orders, committals, appointment of receivers, writs of sequestration, and insolvency proceedings against an individual and winding up proceedings against a debtor company. Enforcement of judgment for possession of immovable property may be enforced by a writ of possession, an order for committal or a writ of sequestration.
The Ghanaian procedure appears fairly simple and straightforward, and a similar procedure may be adopted by Member States to facilitate the enforcement of Court of Justice judgments and national judgments from the Member States. However, in the present context, Article 24 creates a risk that enforcement may be more cumbersome in one Member State as opposed to another state, depending on their respective civil procedure rules. Therefore a measure of standardisation of the enforcement procedure may be helpful. Perhaps, a provision that in the reciprocal enforcement Treaty or Convention requiring that enforcement of a Court of Justice decision must not be more onerous than the enforcement of a decision of a national court may assist. Another approach could be to include a specific, uniform and mandatory procedure for enforcement of ECOWAS judgments in Member States in the multi-lateral Convention or Treaty. This procedure would be separate from the general enforcement procedure under the civil procedure rules of each of the Member States.
The Community must also be willing to take steps against any Member State that refuses to recognise or enforce an ECOWAS Court judgment. There is ample support in Community Law to enable this. For instance, Article 77(1) of the Revised Treaty gives the Community the power to impose sanctions against Member States that do not fulfil their obligations, and this, I would argue, includes the obligation of Member States to comply with the Court of Justice decisions.
Enforcement of National Court Judgments
Reciprocal enforcement of judgments from the national courts of the 15 Member States, as noted above, is critical to ensure that full integration is achieved. The judgments of national courts of one member states must be enforceable in another member state. Treaty/Convention legislation that allow for reciprocal enforcement of judgments from one Member State in another is essential.
Conclusion
ECOWAS has come a long way in its efforts to foster political and economic integration. Treaties passed in succeeding years is a clear indication of the Community’s efforts at establishing an enabling legal environment. Enforcement is key in creating that environment and therefore efforts should be made in applying Article 9(6) and (7) of the Revised Treaty to ensure that judgments of the Court of Justice are directly enforceable in Member States. A test case may also be brought in the Court of Justice for a proper interpretation of the provisions of the Revised Treaty and its applicability in the national courts. The judgment in this test case may provide valuable guidance.
Further, a multi-lateral reciprocal enforcement Treaty or Convention by all Member States appears to be another way forward in ensuring that judgments may be enforced to secure the principle of supranationality of the Community Law.
On 1st September 1993, the Financial Times wrote this about Africa:
From Africa must come a new generation of leaders, COMMITTED to reform, and TAPPING the same spirit that brought freedom 30 years ago. ANGERED by the failures of the corrupt and autocratic leaders, FRUSTRATED by economic policies that did not deliver, IMPATIENT to recover their lost civil rights, and WORN OUT by wars, Africa’s people are striving for a FRESH START.
The famous Lee Kuan Yew of Singapore chose this quotation as his concluding words in his address at the Conference on the Relevance of Singapore’s Experience for Africa, held in Singapore on 8-10 November 1993. We endorse these words. West Africa’s people are still striving for a fresh start. Let us take solid and concrete steps towards assimilating our laws. The political and economic integration we seek for West Africa, and which is ECOWAS’s core vision, is impossible without legal integration. After all, justice in Ghana has to be same justice in Cote d’Ivoire or Mali or Niger.