Is the ECOWAS Court a Toothless Lion? Utility, Compliance, and the Problem of State Defiance?

State agents must respect and protect human rights

Court: ECOWAS Community Court of Justice · Judgment No. ECW/CCJ/JUD/29/24 · 10 July 2024: “Member States owe their citizens an obligation under the Charter to ensure that at all times, the rights which are provided for in the Charter are respected and protected by all, especially by agents of the State.”Source: ECOWAS Court judgment published by AfricanLII, discussing freedom of expression and peaceful assembly.

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By: Austin S Fallah – A True Son of the Planet Earth Soil: [email protected]

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Justice and the rule of law: East African Court of Justice · Katabazi and 21 Others v. Secretary General of the East African Community and Another · Reference No. 1 of 2007 · Paragraph 68: “Abiding by the court decision is the cornerstone of the independence of the judiciary, which is one of the principles of the observation of the rule of law.” Source: The court’s own judgment, available through the East African Court of Justice and the Southern African Legal Information Institute’s judgment archive.

Courts must not stand powerless in the face of rights violations. Judicial authority quoted in the same EACJ judgment · Lord Griffiths, House of Lords · R v Horseferry Road Magistrates’ Court, ex parte Bennett [1994] 1 AC 42
“It is to my mind unthinkable that in such circumstances, the court should declare itself to be powerless and stand idly by.” Source: Lord Griffiths’s reasoning is reproduced in Katabazi, paragraph 57.

The end does not justify the means: Court: East African Court of Justice · Katabazi and 21 Others v. Secretary General of the East African Community and Another 2007 Paragraph 48: “The end does not justify the means.”
Source: The EACJ’s judgment, published by AfricanLII and the East African Court of Justice.

The Community Court of Justice of the Economic Community of West African States (ECOWAS Court) occupies an unusual and important place in African regional governance.

It was created as part of ECOWAS’s institutional structure to interpret Community law and resolve disputes involving member states,

Community institutions, and, increasingly, individual citizens.

Through its human-rights jurisdiction, the Court has become one of Africa’s few regional judicial bodies where ordinary persons can bring claims directly against their governments.

This feature makes the Court potentially transformative.

For a journalist tortured by security agents, a woman held in slavery, an impeached judge denied due process, or a family whose property has been confiscated, the Court can represent a final avenue of legal hope when domestic institutions are weak, compromised, or politically captured.

Yet the ECOWAS Court has a profound weakness: it can issue judgments, but it cannot reliably compel governments to obey them.

It has no police force, no independent enforcement arm, and no reliable mechanism to impose costs on states that defy its rulings.

This gap between legal authority and practical enforcement has led critics to call the Court a “toothless lion”, an institution that can bark in the language of law but cannot bite when powerful governments refuse to comply.

The metaphor is partly fair, but it is incomplete.

The ECOWAS Court is not toothless in a legal or moral sense; its decisions have established important principles of regional human-rights law and have sometimes produced real relief for victims.

However, persistent state defiance, including by Liberia, The Gambia, Nigeria, and other member states, threatens to undermine its credibility.

Unless ECOWAS governments treat the Court’s judgments as binding obligations rather than optional political advice, citizens will not regard it as the subregion’s genuine final arbiter of justice.

The Court’s Promise: Direct Access to Regional Justice:

The ECOWAS Court’s modern human-rights role derives especially from the 2005 Supplementary Protocol, which expanded the Court’s jurisdiction and permitted individuals and nongovernmental organizations to bring cases alleging human-rights violations.

Unlike some international tribunals, the Court generally does not require an applicant to exhaust every possible domestic legal remedy before filing a case.

This is especially significant in West Africa, where national courts may be slow, inaccessible, underfunded, or vulnerable to political interference.

The Court’s direct-access model recognizes a practical truth: a victim should not be denied justice merely because the institutions responsible for protecting that victim have failed.

In countries emerging from civil war, military rule, dictatorship, or constitutional crisis, domestic courts may be unable or unwilling to confront powerful political actors.

The ECOWAS Court therefore serves not only as a legal forum but also as a regional safeguard against impunity.

Its judgments bind ECOWAS member states. In principle, this should settle the issue.

A government that has voluntarily joined ECOWAS and accepted the Court’s jurisdiction has a legal duty to carry out its decisions.

In practice, however, legal obligation has not always translated into obedience.

Republic of Liberia: Late and former First Lady Mrs.Nancy B. Doe and the Importance of Property Rights:

Liberia offers a useful illustration of the Court’s relevance to post-conflict justice and the difficulties of compliance.

In the case involving Mrs. Nancy B. Doe(now late), the widow of the late Liberian President Samuel K. Doe, the ECOWAS Court was asked to consider claims connected to the treatment and confiscation of property associated with the President Doe family following the overthrow and killing of President Doe during Liberia’s civil conflict.

The importance of the former First Lady Mrs. Nancy B. Doe litigation goes beyond the individual dispute.

It presented the Court with a difficult question: can a state, during a period of political transition or conflict, deprive an individual or family of property without due process, lawful justification, or adequate compensation?

The Court’s treatment of the matter underscored that political change does not erase basic rights.

Governments cannot invoke revolution, regime change, or the alleged wrongdoing of a former leader as a blanket justification for denying family members their own legal rights.(The judgement of the Court was rendered before the current government took over, but government is continuity).

Cases such as Mrs. Doe’s are particularly sensitive because they involve both public memory and the rule of law.

A country may have legitimate reasons to investigate property acquired through corruption or abuse of office.

But those reasons do not authorize arbitrary confiscation.

Due process requires notice, an opportunity to be heard, impartial decision-makers, and lawful procedures.

If the state believes property was unlawfully obtained, it must prove that case through legal institutions rather than simply seize assets because of political association.

The ECOWAS Court’s willingness to address such a dispute demonstrated its potential utility for citizens who may not receive impartial treatment in national systems.

At the same time, the case illustrates a deeper challenge: even when the Court articulates legal protections, an applicant’s practical benefit depends on whether the member state respects the judgment and provides meaningful redress.

Republic of Liberia: The former Associate Justice Kabineh Ja’neh Case and Judicial Independence:

The Court’s decision involving Liberia’s former Associate Justice Kabineh Muhammad Ja’neh is an even clearer test of whether a member state accepts regional judicial authority.

Associate Justice Ja’neh was impeached and removed from the Supreme Court of Liberia in 2017.

He challenged the process before the ECOWAS Court, arguing that the impeachment proceedings violated his right to fair hearing and fundamental due-process guarantees.

In 2018, the ECOWAS Court ruled in former Associate Justice Ja’neh’s favor.

It found that Liberia had violated his rights and ordered remedies that included his reinstatement and compensation.

The decision was significant not merely because it concerned one judge’s employment or political conflict, but because it implicated judicial independence itself.

A government that can remove judges through processes that disregard fairness creates fear among all judges.

Courts cannot protect citizens if judges believe that ruling against powerful interests may result in politically motivated removal.

Liberia’s response, however, exposed the enforcement weakness of the ECOWAS system.

The government did not fully implement the Court’s decision, particularly the reinstatement aspect.

Liberia’s authorities argued, in substance, that the ECOWAS Court could not reverse actions taken through Liberia’s constitutional impeachment process.

This position reveals a recurring tension between national sovereignty and regional legal commitments.

Yet a state cannot freely accept a treaty-based court’s jurisdiction and then reject its judgments whenever compliance becomes politically inconvenient.

The Associate Justice Ja’neh case is therefore central to the “toothless Lion” critique.

The Court spoke forcefully in defense of due process and judicial independence.

But because it lacked an effective means of compelling Liberia to restore Associate Justice Ja’neh to office, the state’s defiance weakened the practical effect of the ruling.

The judgment remains legally important, but its incomplete implementation sends a troubling message: a government may be able to ignore the Court if it has sufficient domestic political power.

Republic of Niger: The Hadijatou Mani Case and a Model of Relative Compliance:

Not every ECOWAS judgment has been ignored.

The landmark case of ‘Hadijatou Mani Koraou v. Republic of Niger’ demonstrates the Court’s potential when a state accepts responsibility.

Hadijatou Mani, a woman from Niger, brought a case alleging that she had been held in slavery and that Nigerien authorities had failed to protect her adequately.

In 2008, the ECOWAS Court found Niger responsible for failing to protect her from slavery and ordered compensation.

The decision was groundbreaking.

It established that slavery, even when disguised through social customs or informal relationships, is incompatible with fundamental human rights.

The Court’s ruling was also important because it held the state accountable not only for direct acts by officials but for failing to prevent and remedy a serious abuse committed within society.

Niger’s response was comparatively constructive.

The government paid the damages ordered by the Court and did not simply dismiss the judgment as an intrusion into domestic affairs.

The case did not eliminate slavery, like practices in Niger or throughout the region, but it proved that the ECOWAS Court can produce tangible results when governments comply.

Hadijatou Mani’s victory remains one of the strongest arguments against describing the Court as wholly ineffective.

The Republic of Gambia: Defiance Under Yahya Jammeh;

The Gambia under former President Yahya Jammeh offered one of the clearest examples of deliberate state defiance.

In ‘Manneh v. The Gambia’, the ECOWAS Court considered the disappearance of journalist Chief Ebrima Manneh, who was reportedly arrested by state security agents in 2006 and then disappeared.

In 2008, the Court found The Gambia responsible for his unlawful detention and ordered the government to release him or produce him and to pay compensation.

The Jammeh government refused to comply.

It denied responsibility, resisted the Court’s authority, and failed to provide meaningful information about Manneh’s whereabouts.

The refusal was especially damaging because the case involved enforced disappearance, one of the gravest forms of human-rights abuse.

A judgment has little practical meaning if a state can simply decline to reveal whether a detained person is alive or dead.

The Court also issued important decisions involving The Gambia in cases concerning torture and attacks on journalists, including the case of Musa Saidykhan, who alleged torture by Gambian security agents, and litigation related to the murder of journalist Deyda Hydara.

These judgments reinforced the principles of freedom of expression, protection against torture, and the state’s obligation to investigate attacks on journalists.

But under President(Now former)Jammeh, the Gambia’s consistent noncompliance showed how vulnerable the Court is when confronted by an openly authoritarian government.

Political change in The Gambia after Jammeh’s removal created new opportunities for accountability, but the broader lesson remains: judicial rulings cannot protect victims unless ECOWAS has a credible mechanism for ensuring that recalcitrant states comply.

The Federal Republic of Nigeria: A Powerful State with Uneven Compliance:

Nigeria, ECOWAS’s largest member state, is especially important because its conduct strongly influences the credibility of regional institutions.

In ‘Registered Trustees of the Socio-Economic Rights and Accountability Project (SERAP) v. Federal Republic of Nigeria’, the ECOWAS Court recognized that Nigeria had obligations concerning the right to education.

The case challenged corruption and mismanagement affecting funding for basic education.

The Court affirmed that socioeconomic rights are not merely political aspirations; they can create enforceable legal duties.

This was a major doctrinal development.

Many governments treat education, health care, housing, and environmental protection as matters of policy beyond judicial review.

The ECOWAS Court rejected that narrow view by recognizing that states must take concrete steps to fulfill rights guaranteed under African human-rights instruments.

Nevertheless, enforcement has been uneven.

Nigeria has often participated in cases and defended itself before the Court, which is better than outright refusal to recognize the tribunal.

But participation alone is not compliance.

When judgments require policy reform, investigation, compensation, or changes in governance, implementation may be delayed, partial, or difficult to verify.

Nigeria’s size and influence make this especially consequential.

If Nigeria treats ECOWAS judgments as optional, smaller states are likely to do the same.

Other ECOWAS States and the Pattern of Selective Obedience:

Other cases reveal a mixed pattern across the region. In ‘Zongo v. Burkina Faso’, concerning the murder of investigative journalist Norbert Zongo and others, the ECOWAS Court found that Burkina Faso had failed in its duty to investigate and prosecute those responsible adequately.

The judgment emphasized that states have positive duties: they must not only refrain from violating rights but must actively investigate violence, protect victims, and provide remedies.

Similarly, cases from Sierra Leone, Togo, Guinea, and Mali have demonstrated the Court’s willingness to hear allegations of unlawful detention, electoral repression, property violations, torture, and failures of due process.

The Court’s jurisprudence has become an important regional body of law.

It has made clear that sovereignty is not a license for governments to mistreat citizens.

Yet the recurring problem is selective obedience.

States may comply when a judgment is politically manageable, such as by paying compensation.

They are more likely to resist when a ruling challenges entrenched power, requires reinstating an official, demands accountability for security forces, or exposes high-level corruption.

This creates a troubling hierarchy of rights: governments may honor judgments that cost money, but resist those that require meaningful political reform.

Why Compliance Is Necessary for Legitimacy:

The ECOWAS Court should not be viewed as a substitute for national courts.

Ideally, citizens should obtain justice at home, through independent judges, fair procedures, and constitutional protections.

But when national institutions fail, the regional Court must be available as a last result.