Enforcement of ECOWAS decisions

The latest twist and turn in the rigmarole of the saga of the suspension of the Chief Justice of the Republic manifested itself in the filing of an action at the ECOWAS Court by her Ladyship Gertrude Araba Esaaba Torkornoo. 

That single action has unearthed issues previously, in my view, not been given adequate attention.

Among the issues forcefully catapulted to prominence is the legal reach and enforceability of decisions of the ECOWAS Court.

International courts and tribunals traverse a different route to enforceability given that they are not part and parcel of national law as obtains in ordinary laws enacted domestically.

Methods

There are two methods of enforcing decisions of international judicial bodies such as the ECOWAS Court, the African Court of Human and Peoples’ Rights, the European Court of Human Rights and Inter-American Court of Human Rights: the monist and dualist approach.

With a monist approach, mono as in ‘one’, is the key: the mode of incorporating international law is a one-way process in which the provisions of international law seamlessly become part of domestic law immediately upon ratification by the country concerned.

In practical terms, it means any Tom, Dick or Harry in the countries that have ratified, for example, the International Covenant on Civil and Political Rights, can have their day in court to assert the rights therein.

Regarding countries that employ the dualist approach, including Ghana, in order to implement and make available to its citizens all international treaties, there is a need to legislate for any such incorporation.

Without that, direct reliance in the national courts is not possible and they may only be persuasive at best. To illustrate — Ghana has long ratified the International Covenant on Civil and Political Rights (2000) but has yet to ratify its second protocol which abolishes the death penalty in state parties to the treaty.

Even though Ghana abolished the death penalty for ordinary crimes, the death penalty is still the punishment for high treason.

In most dualist nations, specific laws have to be passed, or in some cases amendments of previous legislation to be effected, in order to bring the local laws in sync with the treaty obligations of the country. 

An example of a recent amendment of an Act of Parliament was the Criminal Offences Amendment Bill 2022 which amended the Criminal Code of Ghana by abolishing the death penalty for ordinary crimes.

Ghana has ratified the revised ECOWAS treaty, but has not completed the process to make ECOWAS judgments directly enforceable: domestication of the supplementary protocols of the ECOWAS treaty.

The suspended Chief Justice’s case at the ECOWAS Court needs to be looked at in the light of Ghana’s dualist approach to treaties.

As usual, as per our policy, very much steeped in professional rules, we will not delve into the merits or otherwise of the case, merely analysing its implications and ramifications in terms of enforcement as the case is sub judice. 

True to our tradition (Ghanaian!), arguments have been flying around about possible outcomes in terms of who will prevail.

A senior colleague at the Bar and a former Director of the Ghana School of Law thinks she stands a ‘cat’s chance in hell’ of winning.

In a Facebook page, one poster described the suit as “emotional capitalism”.

In an ECOWAS Court case in 2013, an applicant won $800,000 in damages against the Ghanaian Government but the High Court refused to implement it, citing the non-existence of the enabling legislation for direct reliance.

This implementation hurdle is not particular to only the decisions of the ECOWAS Court as several international treaties face similar problems of implementation. 

It seems there is governmental inertia in going all the way in the implementation of supra-national adjudication bodies.

The Authority of the Heads of State, the highest body of ECOWAS, has not adequately cracked the whip on recalcitrant states.

There is a palpable reluctance to enforce the decisions of the Court. 

Decisions

Human rights decisions, just like any other legal decisions, are only effective if they can bite.

There is an urgent need for the government to ensure the ratification of all the supplementary protocols of the ECOWAS treaty in order for Ghanaians to have yet another avenue, albeit cross-border, to enforce favourable decisions from the ECOWAS Court.

There are serious problems of implementation of decisions, thus limiting the effectiveness of the Court in its duty as a bulwark of democracy.

Hopefully, this case will reignite the debate of how best to enforce international human rights law.

The writer is a lawyer.
E-mail: georgebshaw1@gmail.com