The Bench

INTERVIEW WITH PROF. F.C NWOKE HON. JUSTICE OF THE ECOWAS COMMUNITY COURT OF JUSTICE

Professor Friday Chijioke Nwoke joined the services of the University of Jos in 1988, rose through the rank of Assistant lecturer, to professor of law in 2004 with special interest in International Law and Legal Studies. He was appointed to the Community Court of Justice ECOWAS in 2014, and currently the Honourable Vice President of the Community Court of Justice-ECOWAS. In an insightful interview with The Young wig, the Hon. Justice speaks on salient issues concerning ECOWAS court, it’s jurisdiction, the blindness or otherwise of the Courts decision on the member states of ECOWAS, and other related issues.

Q. It is our belief that virtually 95% of Nigerian lawyers are not aware of the workings, operations, practicability, and jurisdiction of the ECOWAS community court of justice, why is it so sir?

A. Well, I think the question should be to the lawyers. The court was established originally when the ECOWAS treaty came into force in 1975, the court was called a tribunal of the community. In 1991, a formal protocol establishing the court was signed. At that a point in time, it was an interstate court (a community court) that dispenses justice between member states, it was also a court that essentially interprets the treaty establishing the community, other agreements, protocol, memorandum, decisions, et al.

Strictly speaking, because it was an interstate court then, it never functioned. As at 1991 majority of the member states were under military rule, and we all know the sensation of the military towards that. I do not think they deemed it necessary that the court should be functional. The court received visibility when the treaty establishing ECOWAS was revised in 1993, the court came into existence about 2000, when the first president of the court, justice Hassana Bello (former AG of Kaduna State) was appointed as the first president of the court.

At the point of establishment, Republic of Benin was supposed to house the court but because I think, part of what delayed the courts establishment is that it was not able or reluctant to provide facilities for the functioning of the court.

In 2000, President Obasanjo asked for the court to be in Nigeria, and the ECOWAS member states gladly agreed, the first president of the court was appointed, with other judges from the territory. The court was not really visible because only member states and the institutions of the community had access to the court.

The court’s visibility came into being in 2001, when a Nigerian Bolajide Afolabi brought an action against Federal Republic of Nigeria that the closure of the border cost him a lot of loss, and suffered tremendous loss there from. He came to the Court but the court declined jurisdiction because access was not granted to individuals. It appears that the inability of individuals to access the court led to a supplementary protocol being signed in 2005, which extended the jurisdiction of the court to include issues relating to violation of human rights arising in member states.

Ordinarily one of the requirements for approaching an international tribunal under the customary international law is that you must have exhausted local remedies, but it appears from the treaty establishing the community court there was no provision for local remedies. In other words, before you come before the court you do not need to have exhausted local remedies, and it is significant, because exhaustion of local remedies within our sub region is like going to sleep. As young legal practitioners you know how long it takes for a court to conclude a case in Nigeria, and the exhaustion of local remedies suggest that all the nitty gritty of procedures including appeals must have been exhausted. We all know how long it takes in Nigeria for matters to come from the High Court to the Supreme Court.

In the wisdom of the drafters of the treaty, exhaustion of local remedies was not included as one of the condition precedent to approaching the ECOWAS Community court.

The mere fact that an individual has come before a municipal court, is not a bar to access the ECOWAS court

It is not something very abysmal, even in the customary international law you can exclude the exhaustion of local remedies as a basis for approaching an international tribunal, it can be expressly or by implication. Sometimes, where there is no remedy to exhaust, like during the military time when decrees oust the jurisdiction of the court, in such circumstances for example, international law allows persons to access international tribunal without exhaustion of local remedies. Specifically with regards to ECOWAS community court of Justice, Exhaustion of local remedies is not a sine quanon for an individual approaching the court.

Q. What is the effect or consequences where the Government of member states of the ECOWAS disobeys decision or orders of the Community court of Justice?

Naturally, by the Protocol of 1991, the supplementary protocol of 2005, as well as the ECOWAS revised treaty, the decisions of the court are binding on all member states as a matter of fact clearly stated. Any state that refuses to carry out the decisions of the court is ordinarily violating its international obligation under the treaty.

The rule in international law usually, the court does not have a police, ECOWAS equally does not have a police, the International Court of Justice does not own its international police, and its decisions are usually enforced through the political arm, for example the decisions of International Court of Justice is enforced through the instrumentality of the Security Council of the United Nations.

The practice in International Law is that the political arm of an organization usually enforces the decisions of the judicial, because there is no international police that would be in a position to enforce like in national jurisdictions. If you go to the European Courts of Human Rights, the Council of Ministers enforces the decisions of the court, in most developed countries, non-compliance with the decisions of the court is an exception rather than the rule, when a member states doesn’t comply and is reported to the council of ministers, the council takes decision to impose sanctions, exclude the violating state from participating in their activities, if there are matters of subsidies they are entitled to, they can be withdrawn or suspended until compliance with the decisions of the court, and because some of these, member states do comply.

In the same vein, by the express provisions of the treaty of ECOWAS, the council of ministers of ECOWAS ordinarily are supposed to enforce the decisions of the community court against member states, by taking punitive measures. Naturally, those things have to be brought to their notice by the ECOWAS commission, which is the political arm in conjunction with the council of ministers of the commission. Since the establishment of the community court, there has been no single report that has been made by the commission either to the council of ministers, or the authority of Heads of States as to the breach of the treaty obligations of member states, that is unexplainable, it is either because of diplomatic tracts or issue of impunity. You would notice that most of the time, states in our sub region do not behave the way they are supposed to behave in complying with their obligation.

Some of these thing permeates our institutions, the ECOWAS commission whose responsibility it is, has never made a report. It is not really the responsibility of the community court to enforce its own decision, by international practice, it has never been in international law the function of an international tribunal to enforce its own judgments. Most of the arguments that the decisions of the ECOWAS community court are not binding on member states is out of ignorance of the level establishing the court, and the obligations that member states of ECOWAS has undertaken. It is absurd, that you establish a court and not ready to comply with its decisions.

Some people say the court is only one, there should be an appellate chamber, of course, proposals have been made to the authority of Heads of States to establish an appellate chambers so that some of the decisions do not end here, they can be regulated at the higher level, unfortunately for over five years nothing has been done.

Q. Using the Nigerian scenario, some have argued that for the decision of the ECOWAS community court of justice to be binding strict senso in Nigeria, the National Assembly has to domesticate the revised treaty of ECOWAS and the supplementary protocol in compliance with Section 12 of the Constitution of the Federal republic of Nigeria (1999) as amended, what is your reaction to this?

A. like I have said over the years, majority of legal practitioners in Nigeria do not know international law as one need not study international law to become a legal practitioner in Nigeria. Most of the time people tend to juxtapose municipal law with international law, that is not the way it is. Section 12 of the 1999 C.F.R.N is a constitution of Nigeria, and only has territorial application within Nigeria, the ECOWAS community court of justice is not a Nigerian Court, it’s a sub regional court, it does not operate within the persons of Nigerian constitution.

Nigeria is a member state of ECOWAS, and has signed a treaty establishing the ECOWAS community court, we must understand therefore that subjecting a regional court to the whims and caprices of the constitution of a territorial entity that have signed the treaty is an aberration.

The term domestication is a process of transplanting a treaty Nigerian has signed into municipal law. The implication of this, when it is transplanted into municipal law, individual citizens of the particular state that has now transplanted such instrument of law from international law to municipal law can now derive rights from those instrument. For example, you cannot bring the International Covenant of Civil and Political Rights, an individual cannot claim any right therein before a municipal court, the simple reason being Nigeria has not domesticated such international instrument, but Nigeria is a party to it, Nigeria has right to file it.

The ECOWAS is enjoined to apply all international human rights instrument to which a member state of ECOWAS is a party, looking at article 46 of the Vienna convention, a state cannot use the provisions of its municipal law to defeat its international obligation. Furthermore, in the case of JAMAN INTEREST IN UPPER SALEISAI & THE DISTRICT OF JACKS, the permanent court of international justice held that when a state enters into a treaty, it is bound by the provisions of this treaty, it cannot claim non- domestication or it has not taken procedures to make that treaty part of its law, and as a result is not bound, international law would not accept that. In International Law, once a country enters into a treaty, apart from the provisions of the treaty, the country has assumed another obligation to bring its national legal instrument to be in conformity with the treaty obligations undertaken.

The question of domestication with regard to an international obligation that Nigeria has voluntarily undertaken does not arise. Domestication is for purposes of individual citizens of a particular states claiming right from a particular instrument that has been domesticated. You cannot go to a national court where an international instrument has not been domesticated, but one can go to an international tribunal with jurisdiction and seek relief.

One of the jurisdictions of ECOWAS community court of justice is to determine cases of human rights violation occurring in member states, in other words, when approaching the community court you don’t bring an individual who has violated your right before the ECOWAS community court of justice, the court would not have jurisdiction, such action would not be admissible, however, one can only sue a member state, for example where Nigeria violates your human rights, you can come to the community court of Justice.

Anyone who argues about non-domestication of an international law is an aberration. For example, did the Nigerian Government domesticate Bakassi? Because Nigeria lost at the International Court of Justice, the decision was implemented even though the National Assembly of Nigeria was screaming that there was no way it can be done. The treaty making powers does not belong to the National Assembly, in international law, treaty making powers belong to the Executive, except the domestication, in other words, transplanting an international treaty to municipal law. That is how the African Charter of Human rights became a part of Nigerian Law by the Shehu Shagari administration.

Q. In the just concluded BREXIT, one of the reasons for Britain’s exit from European Union, is that the Union curtails the country’s sovereignty, with these and other reasons against regional union, do you support Nigeria’s continued membership of the ECOWAS?

A. Naturally if you join a union or sign an instrument, even if the implication of signing such instrument is to limit your sovereignty, so be it. As a member of ECOWAS, there are principles contained in the treaty relating to ECOWAS that member states surrender, and when you do surrender it, is it not a voluntary assumption of responsibility?

The issue is that if you join a union, you must be in a position to carry out your obligation under the treaty you have signed, the question of curtailing sovereignty is a natural implication of being a member of an organization.

The issue of limitation of sovereignty is something ipso facto that arises from your membership with the union, if Britain decides to leave the European Union there are lots of reason surrounding such, and if Nigeria feels that its membership with ECOWAS is not benefiting it, if there are provisions for exit, it should exit.

Personally, I do not think exit is the best option even though am not a politician, to join or not to join is a political decision. It’s a matter of looking at national interest.

Q. Recently, the Department of State Security Services invaded the houses of some judicial officers in the middle of the night, what is your view on this development?

A. By way of general comment, and not necessarily about the arrest, there are procedures for doing things. What is lacking in most of our sub regional countries is strong institutions, if we have strong institutions, we would have a strong government. You don’t do things by virtue of the presence of a personality, because when the person goes, the problem may go out of hand, but if the institutions are re-enforced, you would notice that some of the ills like corruption we are trying to fight would be a thing of the past.

Whatever we do there are procedures and institutions, If an institution does not have power with regard to a particular act, I do not think that such institution should dabble.

Q. In your own opinion, what are the causes of judicial corruption in Nigeria?

A. The problem is just corruption, the major problem of corruption is not  question of law, it is a question of behaviour, it is a question of morality, it is a question of lack of conscience, somebody says because am not paid well that is why am corrupt, No, you are corrupt because you want to be corrupt.

As children growing up, there was corruption but not as pronounced as because people were satisfied with recognition alone. Why would there not be corruption today, when people in the society are respected because they drive Porsche cars, have big houses and so on? If you are intelligent as a matter of being intelligent, nobody recognizes you, if you are contributing one way or the other to the development of a state, nobody recognizes you.

We place so much value on money, so much value on property. The worst thing that can happen to a state is corruption in the judiciary, even in the holy books, it is wrong to use bribery to pervert the cause of justice.

Q. What are your recommendations to Nigerians for the fight against corruption?

A. If it is possible social orientation, people are still stealing. Corruption has done a lot of evil to us as a people and this is responsible for majority of the people not benefiting from social amenities. It is a question of mentality, it is a question of change of attitude, it is a question of change of our value system.

I am not saying, and I would not say that law does not have an important role to play, but law alone, would not be in a position to fight corruption in Nigeria. Again, we should be in a position to punish corruption even if it is your father, if we are going to apply the law, apply it dispassionately to every person, investigate all petitions, because when like Ceaser’s wife you are above board, nobody would accuse it of anything.

I know they would say corruption would definitely fight back, that is why I talked about strong institutions, corruption cannot fight back if the institutions are strong. Where the institutions are not strong, the institution would fight the individual that has come to fight corruption.

In Ghana, it was a journalist that unearthed the corruption in the judiciary and published it with evidence, the Government of Ghana didn’t just wake up and start arresting the judges, the judicial commission of Ghana asked for the evidence and it was forwarded to them, they investigated, and those that were found guilty were either sacked or dismissed depending on the enormity of the offense.

It is only after sacking them that you can prosecute, it casts aspersion on the integrity of our country to charge a sitting judge to court. An institution is responsible for such investigation in the Nigerian constitution, no matter what we say the judges have done or not done, where they are appropriate evidence against a particular individual, those evidence should be forwarded to the right institution to do their job.

If we are using the law to fight corruption, things should be done in accordance with the law, we need strong institutions that would outlive a particular individual. 

Q. As a Justice of the ECOWAS community court of justice, what are your peculiar experiences?

A. the peculiar experience I have had personally, is that you do not use your whims and caprices in the determination of a matter, sometimes you would see a case that ordinarily you don’t believe in, but you must do justice in accordance with the law.

Q. is it possible for a young lawyer to appear before the ECOWAS?

A. if you know your onions, why not, the requirement for appearance in the ECOWAS community court of justice is qualification to practice law as a legal practitioner in the member states. You need not even be a lawyer to appear before the ECOWAS court, you can appear as an agent on behalf of the applicant, or as a council.

Q. what does it take to be an agent?

A. Any person nominated by a party to represent them, but is advisable to use someone who is vast in law.

Q. what is your advice for young lawyers in the profession?

A. Hard work, there is so much desire to make it on time, and most of time when you do that, you either spoil your reputation or veer off course. The Nigerian Bar Association has a lot of role to play to help lawyers in general, more so young lawyers. It is sad for law firms not to be pay a counsel salary, or pay a counsel N20, 000 in a month, you see lawyers in the chambers of a Senior Advocate of Nigeria, going to court in an okada, these are part of the things that the NBA must check.

It is rare for you to see a pharmacy earning less than N100, 000. Our society should start placing premium on hard work and integrity. The value of integrity is important, our value system must change, and acquisition of wealth is not the only thing this is the direction our country must take in order to succeed, whether as a young lawyer or not. 

Thank you very much for your time and effort.