ABSTRACT
The Economic Community of West African States Court of Justice (ECOWAS Court or ECCtJ) was established in 1991 by Protocol A/P.1/7/91 on the Community Court of Justice, pursuant to the provisions of articles 6 and 15 of the ECOWAS Revised Treaty of 1993. Its emergence has brought great changes to the legal landscape of ECOWAS, while the ECCtJ has had to grapple with some challenges. The aim ofstudy therefore was to examine the apparent restricted jurisdiction of the ECCtJ with a view to highlighting and discussing those jurisdictional spheres of the Court where it appears the individuals are completely shut out of the Court’s jurisdiction with regard to the protection of their rights of movement, residence and establishment, with a view to exposing the gaps thus created and the consequences thereof. The study adopted the doctrinal approach by evaluating the relevant existing legal instruments in ECOWAS on the protection of individuals’ rights of movement, residence and establishment and also analysed the laws applicable under the European Union Court of Justice (EUCJ) and the East African Court of Justice (EACJ) regimes on the same subject for comparison with the ECCtJ.
The findings of the study included the fact that although the ECOWAS Court of Justice can now assume jurisdiction over cases of human rights violations through its expanded mandate in the 2005 Supplementary Protocol, yet, its jurisdiction in relation to individuals is still very limited, given the inability of individuals to access the Court for the interpretation and application of ECOWAS Protocols. This study also found that member States municipal courts have not given the ECOWAS Treaty and/or its subsidiary instruments the necessary judicial recognition in their municipal legal spheres for the protection of Community citizens’ rights against any violation. Also, unlike ECOWAS, the European Community Court of Justice and the East African Court of Justice have made substantial progress from its interpretative tenet on individuals’ rights-oriented interpretive approach that do not diminish the core value of integration.
The study affirmed that while the discretion which the ECOWAS legal instruments accorded the ECCtJ to hear and determine cases of human rights violations could also accommodate the protection and enforcement of individuals’ rights of movement, residence and establishment, a restriction to these principles is a lopsided perspective and it is unjust given that individuals are the prime movers of ECOWAS integration agenda. The study therefore recommended amongst others that the Court should purposively interpret its jurisdiction vis a vis the Revised Treaty and other Community legal instruments that give rights to individuals in a manner that allows the individuals question Community acts.
