Access to Justice at the ECOWAS Court: Challenges and Opportunities

Victims of Enforced Disappearances © Askanwi

By Yusef Taylor, @FlexDan_YT

The saying, justice delayed is justice denied encapsulates the importance of timeliness of justice but in the Economic Community of West African States (ECOWAS), millions of citizens are oblivious of the ECOWAS Court of Justice and its mandate. Speaking at the opening of the ECOWAS Court of Justice 2017/ 2018 Legal Year, Mr Adekunle Ogunsanya asked ECOWAS Judges present “How are we going to say as at now that we have less than 400 cases that have been treated in the court? We have 350 million people in West Africa. Have we ever thought of it? That the court is not well known by Africans”.

This feature publication interrogates the Judgements of five ECOWAS Court of Justice [henceforth called the Court] Cases with keen attention to access to justice. At the heart of the concept is that all citizens should be able to access justice regardless of their status in society. But this is not always the case in reality. The opening of the Court’s 2015/2016 Legal Year was themed “ECOWAS Access to Justice and the creation of the enabling regional environment for regional integration and the consolidation of the human rights mandate of the ECOWAS Court of Justice”.

Renowned Human Rights Lawyer, Femi Felana says a legal aid scheme for ECOWAS Citizens will enhance access to justice within the bloc. Mounting the podium at the opening of the Court’s 2015/2016 Legal Year, Lawyer Felana opined “You can’t talk of enjoying human rights in an atmosphere of poverty, and that is the experience of our people. In order to ensure that access to the court is not limited to a privileged few, the ECOWAS Commission should, establish a legal aid centre to assist Community Citizens who lack the financial wherewithal to secure the enforcement of their fundamental human rights in the Court”.

But what are the authorities saying on how access to justice can be enhanced in ECOWAS? According to Justice Maria Silva-Monteiro, to address this challenge ECOWAS Citizens must first know their rights and the opportunities available in the courts towards their protection. In this regard, the Court is meeting with the Council of Ministers of member states and also creating awareness among citizens to improve access to justice.

“The court is planning a meeting with the Council of Ministers to propose legal aid to indigenous citizens, but the Citizens will have to prove they have financial difficulties. We are working on sensitization meetings with member states and also international conferences to educate citizens on their rights,” says Justice Silva-Monteiro.

To get more recent information about the Court’s effort in this regard our medium is informed that “the court goes on sensitisation missions in member states, organises international conferences to speak about its mandate and other issues relevant to it (one was held in Banjul last year) and it also holds court sessions outside of its seat in Abuja. It has held such sessions in other member states”.

Almost a decade after the ECOWAS launched their Access to Justice Program, our publication commences with picking up the pieces around the project aimed at enhancing access to justice. According to the Court, “the project was an attempt to establish sub-registries in Member States as well as to seek for judicial assistance for the less privileged who lack means to access the Court. But as at today it has not been a reality”.

One of the innovations of the Court that will surely enhance access to Justice is the use of virtual hearings. According to Court Officials, ECOWAS Citizens “can now file cases electronically and defend their case without coming to the Court. This started during COVID-19 and continues to take place”.

Three of the cases in this publication have been adjudicated virtually and these include, Nana-Jo Ndow vs the Republic of The Gambia, Mahawa Cham and Sarjo Cham vs the Republic of The Gambia both on 5th July 2023 and Isaac Mensah and Others vs the Republic of Ghana on 12th July 2024.

The remaining two cases which were adjudicated in person are the case of Chief Ebrima Manneh vs the Republic of The Gambia which took place on 5th June 2008 and The Federation of African Journalists and three others vs the Republic of The Gambia on 13th February 2018. All of these took place prior to the COVID-19 Pandemic which struck in December 2019.

Isaac Mensah © Askanwi

Length of ECOWAS Court of Justice Cases

The African Network Against Extrajudicial Killings and Enforced Disappearances (ANEKED) is a human rights organisation based in The Gambia who have participated in three of the virtual cases. On average their cases have lasted approximately 4 years. In contrast, the other two cases adjudged in person took approximately half the time to conclude.

Nana-Jo Ndow, the Director of ANEKED and Sirra Ndow, ANEKED’s The Gambia representative spoke to our medium about their experiences in accessing justice at the Court. According to Sirra, the process has been very frustrating given the length of time and their role in managing two other cases including being a party in one of them.

“When you’re working with the victims who are calling you, asking for updates --- especially when you have families who are not so engaged in the legal processes, it can be frustrating for them,” said Sirra. She cited an example of how Sarjo Cham, the brother of [now disappeared] Mahawa Cham battled with his family’s court case.

She recalls how at one point the Mahawa Cham case was taken up by The Gambia Government who started a trial to prosecute the Junglers, a private killing militia which reported directly to the President. The Junglers have been accused of orchestrating the enforced disappearance of Mahawa Cham, Saul Ndow and many others. Unfortunately, the case was later discontinued adding to the frustration of relatives of victims who suffered from the Jungler's indiscriminate killings and enforced disappearance.

The ECOWAS Case breathed renewed hope that justice would be served. “Having hope that ECOWAS would take on their case and then it’s dragging for so long. And you really don’t have much to update them, that’s the frustrating part that you don’t have much visibility about what’s happening. There’s very little way of finding out the status of your case or getting any case updates or somebody to talk to find out where your case is at the ECOWAS Court of Justice,” said Sirra.

“We’ve been walking in the dark, maybe there’s something that we are not aware of. Maybe there’s something the ECOWAS has where we plaintiffs and complainants can go to find out where they are with the case, what is happening and what we expect to happen. That’s a big challenge” said Sirra.

According to her narration, lawyers are also in the same position and all they can do is wait for a notice of a hearing to respond. However, they often experience cancellations after being served notice of hearings. “They will send you a notice of hearing and then you notify the victim's families and they are all ready, only to get a notice later on that this has been cancelled. So now you have to go back to them and tell them that this has been cancelled. If it happened once then you say ok but it happened more than twice” said Sirra.

She highlighted one instance during the Isaac Mensah case when their Lawyer was bereaved and had to cancel a family engagement only for the court hearing to be cancelled. This demonstrates the emotional cost associated with the court's decision to cancel hearings after sending notices.

The length of cases also makes funding a challenge. ANEKED revealed that through support from well-wishers and the Institute for Human Rights and Development in Africa (IHRDA), they have managed to fund most of their cases in the Court. However, they did have to personally fund some of their cases at the start of their crusade for justice. In another legal case not lodged at the ECOWAS their funding elapsed forcing them to apply for additional funding. However, through IHRDA they have managed to fund their legal fees.

It’s important to note that the start of the court cases is not the beginning of plaintiffs' traumatic experiences. Take the case of Isaac Mensah vs Ghana. The fateful incident which led to the massacre of almost 50 West Africans occurred in July 2005 in The Gambia. After their 3-year and 8-month court case ended on 12th July 2024, their saga finally concluded 19 years after the incident. It’s important to note that the plaintiffs highlight reservations about the judgement passed in the above-mentioned case.

On the other hand, the shortest timeline is the Chief Ebrima Manneh vs The Gambia case which occurred after the enforced disappearance of Journalist Chief Ebrima Manneh in July 2006. With the Court’s Judgement dated 5th June 2008, it is a clear anomaly concluding a 1-year 11-month saga by the end of the legal proceedings. However, the plaintiffs had to wait for almost a decade for the Government of President Adama Barrow to take the helm and comply with the Court’s Judgement.

As shown from the timeline image below most of the cases take at least 3 years to conclude.

Graphic Image of Timeline of Five ECOWAS Court of Justice Cases © Askanwi Media

Adapting the ECOWAS Court to suit Africans

One of the obvious positives is the fact that Court Cases can be filed online now since the COVID-19 Pandemic. However, given Africa’s relatively low internet penetration rate and lack of quality internet to follow proceedings effectively, plaintiffs like Isaac Mensah have complained of challenges following the online court proceedings. Even during the interview with Isaac our reporter struggled to get him on Zoom and had to resort to WhatsApp which still had connection issues.

In Isaac’s instance, the court dismissed his 23 other family members and relatives of his father ruling that he has “no capacity to represent 23 other individuals in the Application”. In addition to this the Second Applicant, ANEKED, was struck out by the court in their ruling which stated that they have “no standing and therefore strikes out the Second Applicant as a party to the case”. The Court also ruled that “the Application is admissible as regards the Applicant’s claim relating to the violation of the right to information”.

Basically, in layman’s terms, only Isaac was deemed admissible while 23 other relatives including the deceased first and second wives and children were deemed inadmissible.

Although no damages were granted, the court ordered Ghana to “provide the 2009 UN/ECOWAS Committee Report delivered to Ghana, the coroners’/pathologist’s report on the bodies returned to Ghana in 2009, a report on the disbursement of the money paid by the Gambia to the families, a copy of the videotape of the burial ceremony of the six bodies returned to Ghana, and a copy of the picture take when the money was handed to the Mensah family” within 4 months after the judgement.

Similarly, the case of Mahawa Cham vs The Gambia featured plaintiffs who were dismissed from the case. The ruling highlights that “although they have alleged that they are the wife and children of the first Claimant, no evidence has been produced to substantiate such allegations. As stated above, no marriage certificates, birth or adoption certificates, testamentary documents, or even affidavits or statutory declarations were submitted to the court to establish the relationships of the said wives and children to the” disappeared Mahawa Cham.

The Court dismissed the case and ruled that “the Applicant, as the losing party, will bear the costs of the proceedings, which shall be settled by the Chief Registrar”. In addition to this, the Court ruled that Mr Sarjo Cham “has no locus standi to bring the instant action and “accordingly, declares the application inadmissible and consequently” dismissed.

The second plaintiff was similarly dismissed because he allegedly did not present a birth certificate and other admissible identification documents in the case file. However, ANEKED, who managed the Mahawa Cham case revealed that they submitted all the identification documents required and suggested that they were missing out of the case file.

Our review shows that two out of three cases managed by ANEKED faced admissibility challenges, highlighting how difficult it can be to get a favourable judgement even when hiring the services of a lawyer. This is why advocates are calling for the Court to adapt to its African clientele. One suggestion is for the Court to consider other means of demonstrating a relationship with an individual given the fact that not all West Africans have birth certificates. However, they insist that they submitted Affidavits as one of the admissible documents but the ruling failed to consider this.

Victims of Sedition and False Information Laws © Askanwi

Administrative Errors and Appeals

One of the main concerns raised by three of the persons interviewed in relation to their court case is the sending of documents to previous lawyers of the plaintiffs including notice for court hearings. The situation is such that if the previous lawyers were not on good terms to provide timely information for notice of court hearings, they would have missed court hearings.

Fortunately, ANEKED’s good relationship with their previous lawyer saw them receive the notices in time to respond to the Court in time. Given that the court case took almost four years, they had a change of lawyers at some point and notified the Court of the change of lawyers. However, the Court continued to send notices and other personal information to their previous lawyers instead of sending them all to the new lawyers. Letters were written to the Court to this effect but the situation continued.

Plaintiffs say the start of court proceedings failed to instil much confidence. One of the challenges cited is the lack of a review of documents submitted to the Court. The plaintiffs highlighted that an acknowledgement of receipt of documents filed is usually provided, however, a review of the completeness of documents submitted was not made available.

It’s not clear if the dismissal of the family members in the Isaac Mensah vs Ghana and the Mahawa Cham and Sarjo Cham case could be considered an administrative error but it appears that in between the plaintiffs’ legal representatives and the Court, the right documents were not received and acknowledged in the Court’s Judgement.

When our journalists lodged queries with the Court on how administrative errors are addressed, our medium was informed that “errors in a judgment can be corrected.  The affected party can file a case to rectify errors”. This is addressed in Articles 63 and 64 of the Rules of Procedure of the ECOWAS Court of Justice.

According to Article 63(1): “the Court may, of its own motion or on application by a party made within one month after the delivery of a judgment, rectify clerical mistakes, errors in calculation and obvious slips in it”. Article 63 (2) adds that “the parties whom the Chief Registrar shall duly notify may lodge written observations within a time prescribed by the President”.

Additionally, Article 64 (1) states that “where the Court omits to give a decision on a specific head of claim or on costs, any party may within a month after service of the judgment apply to the Court to supplement its judgment”.

Isaac believes that the Court’s inadmissibility of other family members was an administrative error because they went to a Legal Registrar in Ghana and obtained certified documents to prove their relationship with the victim but this was denied. He questions if the documents were actually received.

Ultimately, there appears to be no avenue for appeal via the ECOWAS Court of Justice. An ECOWAS Official highlighted that “⁠Judgments of the court are final and binding. There are no appeals right now”. It remains to be seen if any ECOWAS Court of Justice Rulings will be challenged at another International Court in the future.

Mother and two sisters of Chief Ebrima Manneh © Askanwi Media

Closure for Families of Enforced Disappearances

Judgements don’t only mean financial compensation for family members but it also provides closure. This was hard to come by because out of the four Judgements issued in favour of plaintiffs, it appears that only two of them have been implemented to some degree by the Gambia Government while the Ghanaian Government is yet to comply with the only ruling issued most recently.

For the Isaac Mensah case, the Ghanaian Government was instructed to provide the required information by the second week of November 2024. Meaning it has just about 2 weeks from the date of publication of this article to comply. All relatives we spoke to highlighted the importance of closure from their respective governments whom they expect to investigate the enforced disappearance of their loved ones.

Take the case of the family of Chief Ebrima Manneh, although they have received the damages of $100,000 US they are still searching for closure to know where their former breadwinner is buried. The last they heard about Chief Ebrima Manneh was that he was buried at a School but efforts to exhume his body proved futile. According to the Truth, Reconciliation and Reparations Commission (TRRC), “the evidence shows that the right to life of [Chief Ebrima Manneh] was violated and the state failed in its obligation to investigate the perpetrated crimes”.

This is a similar situation facing all the other plaintiffs seeking closure.

When our reporter asked if they would want his body exhumed and buried at another location of their choice, the mother and two of his sisters stated that they would prefer to let his body rest wherever he was buried. However, they would like the opportunity to know where he was buried and be allowed access to his grave to offer prayers for him in line with their customary traditions.

The other two cases of enforced disappearances show similar traits to the Chief Ebrima Manneh ruling.

On the decade-long saga of Nana-Jo Ndow, the Court filed its Judgement last year instructing The Gambia Government to pay damages of $110,000 US Dollars to the Plaintiff and to submit “a report on the measures taken to implement --- the recommendations of the TRRC to ensure that all obligations under its human rights commitments are fully met” within six months after the notification of the judgement. However, these Court Orders are still yet to be complied with by the Gambia Government.

It’s important to note that the Gambia Government has established a task force to implement the recommendations of identifying locations of persons deemed victims of enforced disappearances but not much progress has been made in identifying such persons.

One ruling that the Gambia Government complied with is the payment of damages to four journalists to the tune of D2 million each to two plaintiffs and another D1 million each to another two plaintiffs after the 13th February 2018 Judgement. However, the Gambia Government failed to comply with the ruling to “immediately repeal and/or amend its laws [on Sedition and False publication] in line with its obligations under international law”.

By all accounts, it appears that the current President Adama Barrow is not willing to repeal these laws recommended by the Court and is very keen on using False Publication to prosecute two journalists from the Voice Newspaper via the Police and a Civil Suit. Taking the cue from the President, his Minister of Environment, Rohey John Manjang is also using the court to sue Journalist Kebba Ansu Manneh for damages to the tune of D50 million Dalasis.

Had the Government repealed these laws as instructed by the Court, the laws on Sedition and False Publication would not have been used against Journalists and members of the public in a post Jammeh-Era.

Speaking to former Gambia Bar Association President, Lawyer Salieu Taal on his reaction to the Government using these laws, he opined that “It is a great disappointment and dismay that journalists are being prosecuted using Section 181A of the Criminal Code. This particular law amongst others has no place in a country that calls itself a democracy as it is repressive, repugnant and not a reasonable basis for limiting Freedom of Speech”.

According to Lawyer Taal, “It is disheartening and worrying that the  President as leader of the coalition promised that his government would not use these laws against Gambians and will actually repeal these set of draconian provisions from our books.  The same was publicly said by Abubacarr Tambadou, President Adama Barrow’s first Attorney General”.

“Today, eight years after the change, several journalists have been charged with the offence despite the fact that in 2018 the ECOWAS Court in the case, Federation of African Journalists and three others vs the Gambia Government amongst other things, ruled that section 181 A is not compatible with the provisions of the African Charter of Human and People’s Rights, the ICCPR and UDHR. The Govt has failed to conform to the order of ECOWAS in line with International Law and its duty as a State Party to the Abuja Treaty,” said Lawyer Taal.

In his view “The Gambia Government by failing to repeal the law has sent a clear message that it is not bound by the ECOWAS ruling and this has the effect of undermining respect for the rule law”.

One of the concerns raised highlights that some documents were not translated to the required languages by ECOWAS for Judges to fully consider them in their rulings. ECOWAS Court Judges speak different languages which means that documents need to be translated for Judges consideration. However, it appears that in some instances this was not done making it difficult to confirm if Judges considered all the facts of the case in their rulings.

Plaintiffs we spoke to recommend that in the absence of an appeals process, the Court could respond to their submissions by way of a review of the completeness of documents submitted. In doing so, their cases would be given a chance to be adjudged on their merits and not on technicalities that could be avoided. They urge the Court to keep plaintiffs updated by providing information on the next steps after submitting their documents such as a date for the next hearing and an idea of what to expect going forward.

* This publication is supported by the African Network Against Extrajudicial Killings and Enforced Disappearances (ANEKED) with funding from TrustAfrica.