Prof. M. T. Ladan: RESEARCH WORKING PAPER SERIES NO.1, JANUARY 2025

Monday, January 20, 2025

RESEARCH WORKING PAPER SERIES NO.1, JANUARY 2025

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THE PROSPECT OF CLIMATE LITIGATION BEFORE THE ECOWAS COURT OF JUSTICE AS A TOOL FOR ENFORCING THE RIGHT TO A HEALTHY ENVIRONMENT TO ACHIEVE CLIMATE JUSTICE IN WEST AFRICA

Prof. Muhammed Tawfiq Ladan (Ph.D Law)

INTRODUCTION

Despite Africa having negligible historical responsibility, and contributed less than 4%, and 15 members of Economic Community of West African States’ (ECOWAS) contribution of 1.8% of the Global Greenhouse (GHG) emission, Africa remains one of the regions that are most vulnerable to climate change. Responding effectively to climate change requires upholding the evolving concept of climate Rule of Law and Justice, which provides for climate protection against harm as a legal duty of the State and other duty bearers in both the private and public sectors, inclusive participation and legal empowerment of vulnerable groups and communities to access justice and climate information.

The ECOWAS Community Court of Justice (ECCJ) is an integral key component and an organ of the regional economic integration body in West Africa as clearly enshrined in the 1991 Protocol[1], which came into force in 1996. Having provided for an ECOWAS Court, the 1991 Protocol mandated it to resolve disputes between community Member States, interpret Community Rules[2] and issue advisory opinions to the Member States and institutions[3]. The ECOWAS Revised Treaty of 1993 also provided for the establishment of the ECOWAS Court, the Judgements of which are to be binding on all Member States, Community institutions, individuals, and corporate bodies[4]. It also provided that a related protocol would set out the modalities for the functioning of the court[5]. The ECCJ was established by virtue of Article 6 of the Revised Treaty of ECOWAS, 1993 and the Protocol (A/P1/7/91) on the Community Count of Justice 1991, as amended by the supplementary Protocol of 2005, with a 4-fold mandate as a Community Court, an Administrative Tribunal, an Arbitration Tribunal and a Human Rights count[6].

The amendment of the 1991 Protocol by the 2005 Supplementary Protocol, expanded Jurisdiction of the Court to adjudicate on cases of human rights violations that occur within the jurisdiction of the Member States, which has enabled the Court to utilize its powers to ensure the protection of the human rights of ECOWAS Citizens[7]. Furthermore, the Protocol, as amended by the 2005 Supplementary Protocol, has eliminated the limiting requirement of the exhaustion of local remedies in most international tribunals / courts, thereby facilitating the timely dispensation of justice to victims of human rights violations in the West African region.[8]

It is against this background that this paper seeks to unpack the nature and scope of climate litigation as a form of public interest litigation that can be explored before the ECOWAS Court of Justice for enforcing the right to a healthy environment in West Africa.

1. CLIMATE LITIGATION AS A FORM OF PUBLIC INTEREST LITIGATION BY NON-STATE ACTORS AGAINST GOVERNMENTS AND BUSINESSES [9]

Climate litigation is often considered a form of public interest litigation. It is a legal tool that civil society uses to influence climate change governance. It can include administrative and civil actions, and can be brought by non-state actors, such as climate activist and environmental rights groups seeking for climate or environmental justice[10].

In terms of purpose, climate litigation can help enforce the government’s commitments to climate action. It an also be used to challenge deficiencies in a government’s climate response or inadequate implementation of climate laws.

Examples of climate litigation include[11]: -

· A Dutch court ordering Shell to reduce its carbon dioxide emissions by 45% from 2019 levels by 2030.

· A Nigerian Federal High Court Judge ordering the Government to amend its legislation to stop gas flaring by Shell etc.

· A German Court Striking down parts of the federal Climate Protection Act.

· A court in Paros, France, holding that France’s climate inaction has caused climate related ecological damages.

· A south Korean Human Rights Commission opinion condemning the national budget to cut greenhouse gas emissions.

Climate litigation is becoming more prevalent, but it’s still evolving in some parts of the world. For example, in Africa, climate litigation is not yet prevalent in many parts of the continent. However, some successful climate change court cases have been litigated in South Africa, Nigeria and Kenya[12].

Nature and Scope of ‘Public Rights’

The term ‘public rights’ refers to a legally protected public interest guaranteed as fundamental rights of citizens (as a group or a people or collectively) in a given society or regional economic community (like ECOWAS). Hence, Public Right embodies public interest because ‘every right is concerned with an interest and therefore a legal right is deﬁned as an interest protected by law. But interests and rights are not identical. So, in according protection, the law chooses or selects only such interest that it considers worthy of protection; and it is only where an interest is protected by law that it becomes a legal right’.[13]

Therefore, in this context “Public Rights” are legal rights guaranteed under the ECOWAS Community Law[14] to all Community citizens[15] and by the African Charter on Human and Peoples’

Rights, Cap. A.9. LFN 2004. Such rights are also protected by public law.[16] For example,

public’s fundamental rights to participate in, contribute to and enjoy from their natural resources and to seek for these protection against unsustainable management, conservation, utilization and disposal by the state.[17]

Another example is public’s fundamental rights to a healthy environment and to seek for its protection against all forms of pollution and degradation because the environment (water, air, land, forest, biodiversity etc) is their means of survival, livelihood and sustainable development for future generations yet unborn.[18] Further, is the public’s right to consumer protection against all forms of fraudulent business/ commercial practices and misleading advertising claims.[19]

More importantly, is the public’s fundamental rights (as a vulnerable group) to protection against all forms of discrimination, marginalization, exclusion and disadvantage in society.[20]

Why Public Rights Litigation?

Public rights/ interest litigation includes the bringing of proceedings before Courts and tribunals assenting that a government ofﬁcial, agency or other person has acted unlawfully; seeking a binding ruling that the Law be complied with; or requiring others clarifying the operation and the meaning of the Law as well as the obligations of those who are subject to it.[21] Further, such a litigation seeks to advance public’s fundamental rights to protection against socio-economic and political injustices, inequities and imbalances in society, particularly, human rights abuses, and to the aspirations of the vulnerable group for a just, pro-poor and humane society.[22]

The term Public rights/ interest litigation is used broadly to refer to legal action to establish a legal principle or right that is of public importance and aimed, as a strategy to voice for the poor and marginalized groups, at social transformation through law.[23] Such a strategy to inﬂuence social policy is gaining ground, in many developing Countries, in ﬁelds such as health, poverty, environment, housing, land, education and gender.[24] It covers a range of different legal actions:- class actions as well as individual cases, directed against the State/Government or Private companies (including mass tort claims). This means that the value of litigation should not only be judged in terms of how a case fares in court (success in the narrow sense), or whether the terms of the Judgment are compiled with (immediate impact). It is as important to look at the (systemic impact) broader impact of the litigation process on social policy, directly and through inﬂuencing public discourses on public rights and the development of Jurisprudence nationally and internationally. The transformation effect or systemic impact of public interest litigation is not necessarily directly related to its success in court, the litigation process may also directly impact on public discourse and policy.[25] Admittedly, still winning cases remains a core issue in litigation.

It is thus important from the above to understand the process whereby claims emerge; under what conditions are grievances concerning the public rights of vulnerable groups likely to be transformed into effective voice in the form of litigation.

2. RIGHT TO A HEALTHY ENVIRONMENT

As human rights and the environment are interdependent, a clean, safe and healthy environment is necessary for the protection of both people and the planet earth, especially the full enjoyment of a wide range of human rights, such as the right to life, health, food, water, sanitation and development, among others^{^[26]}.

At the same time, the enjoyment of all human rights, including the rights to information, participation and access to justice, is of great importance to the protection of the environment^{^[27]}.

The triple planetary crisis of climate change, biodiversity loss, and pollution is increasingly affecting the human rights of people across the globe. From climate change induced drought that is promoting hunger and famine around the world, to pollution that is contaminating water sources everywhere, the global environmental crisis is disproportionately impacting the world's most marginalized communities^{^[28]}.

2.1 UNPACKING THE ELEMENTS OF THE RIGHT TO A CLEAN, SAFE AND HEALTHY ENVIRONMENT AND CLIMATE JUSTICE

2.1.1 The Right to a Healthy Environment

While there is not a universally agreed definition of the right to a healthy environment, the right is generally understood to include substantive and procedural elements. The substantive elements include clean air; a safe and stable climate; access to safe water and adequate Sanitation; healthy and sustainably produced food; non-toxic environments in which to live, work, study and play; and a healthy biodiversity and ecosystems. The procedural elements include access to information, the right to participate in decision-making, and access to justice for effective remedies^{^[29]}.

The right to a healthy environment, built on the human rights principles of inclusivity, universality, equality, non-discrimination, and accountability, was recognized, by more than 80% (eighty percent) or 4/5 (four- fifth) or 156 out of 193 United Nations Member States, constitutionally, legislatively, or by treaty or through judicial interpretation, at the national and regional levels, prior to the global recognition by the UN General Assembly in July 2022 and the UN Human Rights Council, at Geneva, in October 2021. Of these, at least 84 countries grant an express constitutional right to a healthy environment. Courts in several countries regularly interpret other rights (to life, dignity or health) as incorporating environmental rights^{^[30]}.

Figure 1

Realizing the right to a healthy environment as revealed by Figure 1 above, requires the States, as the primary duty bearers to respect, promote and protect human nights related to the environment and for the Citizens, as "rights holders"; to hold States to account and to enjoy access to justice for effective remedies against human rights violations. Other critical stakeholders such as National Human Rights Institutions, Businesses, Civil Society organizations and individuals such as environmental human rights defenders, can play a critical role in advocating for its progressive realization^{^[31]}.

2.1.2 Climate Justice^{^[32]}

The concept of climate justice means putting equity and human rights at the core of decision-making and action on climate change. Climate Change is a human rights issue. All people have the right to live a life with dignity. However, the climate crisis is causing loss of lives, livelihoods, putting many at risk of food and water shortages, and triggering displacement and conflict^{^[33]}.

Climate justice has been widely used to refer to the unequal historical responsibility that countries and communities bear in relation to the climate crisis. It suggests that the countries, industries, businesses and people that have become wealthy from emitting large amounts of greenhouse gases (GHG) have a responsibility to assist those affected by climate change, particularly the most vulnerable people, communities and nations, who often are the ones that have contributed the least to the climate crisis^{^[34]}.

Climate Justice suggests that the responsibilities in addressing climate change should be divided according to who is contributing most to the crisis, while addressing Systemic, socio-economic and intergenerational inequalities^{^[35]}.

There are many challenges that communities and countries face on the road to achieving climate Justice. One obstacle is lack of transparency and inclusivity in climate negotiations and plans, especially voices of vulnerable groups and local communities. Another obstacle is lack of access to education and resources on the environment, climate change and human rights. Climate Justice denounces the implications for demanding that all countries decarbonize at the same rate and Split the remaining carbon budget evenly between them^{^[36]}.

For climate justice to work^{^[37]} we need: -

i. Better ways of making decisions that include the voices of all those who are being affected by climate change (known as Procedural Justice);^{^[38]}

ii. To ensure that costs and benefits of meeting the challenge of climate change are spread fairly according to responsibility and ability (known as Distributional Justice);^{^[39]}

iii. To think about how the needs of future generations and non-human beings, those who do not have a voice in current decisions, can be better considered in our decision-making processes (known as Just Sustainability)^{^[40]}

2.2. RECENT TRENDS IN USING THE RIGHT TO A HEALTHY ENVIRONMENT IN CLIMATE LITIGATIONS FOR JUSTICE

2. 2.1 Evidence from the Triple planetary crisis of the role played by the Right to a healthy environment in climate litigations.

This Brief refers to the three main planetary crisis as interconnected issues that humanity currently faces: - climate change, pollution and biodiversity loss^{^[41]}. Each of these issues has its own causes and effects and each needs to be resolved if we are to have a viable future on this planet. The consequences of climate change today already manifest through increased intensity and severity of droughts, water scarcity, wildfires, rising sea levels, flooding, melting polar ice, catastrophic storms and declining biodiversity^{^[42]}. Pollution (air, water and soil) is the largest cause of disease and premature death in the world, with nine million deaths each year globally since 2015. More than 90% of pollution-related deaths occur in developing economies of Africa, Asia-pacific and Latin America^{^[43]}. Biodiversity loss impacts food supplies and access to clear water, without it we have no future on our planet. The reasons for biodiversity loss include everything from overfishing to habitat loss (e.g. deforestation to make way for development) to desertification due to climate change. So, biodiversity is the baseline for everything on the planet, as in the end we are all interconnected^{^[44]}.

Across the planet earth, people are increasingly feeling the impacts of the Triple Planetary Crises of Climate Change, Pollution and Biodiversity Loss on their enjoyment of human rights guaranteed under international law^{^[45]}. From the forced displacement to loss of human life and means of livelihood brought about by climate-related disasters, to threats to food security, public health, access to clean water and education, due to biodiversity loss (driven by unsustainable exploitation of natural resources and practices) and pollution (of air, water and soil)^{^[46]}.

This underscores the fact that a healthy Planet earth is necessary for the full enjoyment of human rights, including the rights to a dignified life, health, food, Sustainable development, housing, water and sanitation, access to Justice, information and participation^{^[47]}. However, evidence abound that the Triple Planetary Crises undermine the enjoyment and protection of human rights, disproportionately affecting the most vulnerable people and local communities. They also act as threat multipliers, amplifying conflicts over Land and other natural resources, increasing food insecurity, structural inequalities and exacerbate poverty in developing economies^{^[48]}.

Addressing the effects of the triple planetary crises on human rights, requires both multi-dimensional and innovative solutions / strategies, especially human rights-based strategic litigation (using treaty/constitutional / legislative, Judicial approaches) and civic action (using advocacy, lobbying, empowerment, education, dissemination, Community engagement, participation of stakeholders, information sharing, reporting on climate change, monitoring compliance, evaluation of strategies and plans of action, etc). It requires us to identify key challenges facing litigants using these approaches^{^[49]}.

The starting point is the preamble of the 2015 Paris Agreement on Climate Change, which recognises the interplay between climate change and human rights law, indicating that parties ‘should, when taking action to address climate change, respect, promote and consider their respective obligations on human rights’. This recognition of interplay emphasises the relevance of human rights obligations to climate change law and policy and the need to systematically interpret states’ obligations and corporate responsibilities in this connection, both at the national and international levels^{^[50]}.

Climate litigation^{^[51]} is one strategy that has slowly developed over the last thirty years by asking the courts to protect the climate against further harm as a legal duty for collective survival. Since climate litigation arises in a diverse range of circumstances and is motivated by a wide range of objectives, three main legal grounds underpinning the existence of such an obligation of states, as identified in most of the cases reported in the world’s most established climate litigation databases: - curated by the Sabin Centre for Climate Change Law at Columbia Law School and the Grantham Research Institute on Climate Change, UK were ^{^[52]}: -

· the international legal regime on climate change (UNFCC, the Kyoto Protocol and the Paris Agreement)^{^[53]};

· several principles of international environmental law (such as prevention and no harm, precautionary, sustainable development, inter and intra-generational equity and environmental impact assessment)^{^[54]};

· and human rights law, particularly the rights to a clean and healthy environment^{^[55]}.

Hence, the trend of human rights-based climate litigation reveals the following^{^[56]}: -

i. Claims brought by citizens and or NGOs before domestic courts against their own States for their failure to take adequate measures to address climate change, either regarding their general climate policies or concerning decisions relative to a specific project^{^[57]};

ii. Climate cases concerning citizens or NGOs suing corporations; lawsuits filed by cities and States, asking that carbon corporations be ordered to pay for the damages caused by climate change and the costs of adapting to future impacts of global warming^{^[58]};

iii. Recently, there have also been increasing instances of petitions to UN human rights treaty bodies and three requests for advisory opinions from the following international courts and tribunals, which focused on clarifications of State obligations in the context of climate change: - the international Court of Justice (ICJ), the International Tribunal for the Law of the Sea (ITLOS) and the Inter-American Court of Human Rights (IActHR). Indeed, human rights considerations are central to these advisory opinions, as climate change threatens the enjoyment of rights such as the rights to life, private and family, to self-determination, and to a healthy environment^{^[59]};

iv. Emerging Just transitions litigations cases that rely on human rights to challenge initiatives (Projects or laws) adopted for energy transitions, ended up invoking the right to a healthy environment as instrumental in the energy transition. Plaintiffs also invoked other human rights threatened by energy transition measures, including the right to life, dignity, food and housing, as well as rights to participate, information and access to Justice^{^[60]};

v. The International recognition of the right to a healthy environment, by the non-binding October 2021 and July 2022 UN Human Rights Council Resolution and the UN General Assembly Resolution respectively, might provide even more solid legal grounds for applicants to hold state and corporate actors accountable to tackle the climate emergency. Prior to these resolutions, the right to a healthy environment is explicitly included in the regional human rights treaties of Africa, Arab League and Latin America, but less explicit in Europe. It is equally found in environmental treaties binding more than 120 States. It enjoys constitutional protection in more than 100 States and is incorporated into the environmental legislation of more than 100 states. In total, 155 states have already established legal recognition of the right to a healthy and sustainable environment^{^[61]}.

vi. Evidence abound in a trend of cases on the role played by the right to a healthy environment in climate litigation, and will continue to be a catalyst for climate action where^{^[62]}:-

· The court’s decision relies on the right to a healthy environment even though not explicitly recognized by the domestic law, but explicitly guaranteed by a legally binding regional human rights treaty, like Article 24 of the African Charter on Human and People’s Rights (eg, Jonah Gbemre v. Shell 2005 and the Centre for Oil Pollution Watch v. NNPC/Nigeria 2018/19)^{^[63]};

· Where the court’s decision relies on the right explicitly invoked by the applicants and recognized right in domestic law (eg, the Earth life Africa v. Minister of Environmental Affairs, South Africa, 2016-2017, and Salamanca Mancera v. Presidencia de la Republica de Colombia, 2018^{^[64]});

· Where the court’s decision does not rely on the right, despite it being recognized in domestic law and invoked by the applicants (eg, Notre Affaire a Tous v. France, 2021, Environment Jeunesse v. Canada, 2021, and Nature and Youth and Greenpeace Nordic v. Government of Norway, 2016)^{^[65]};

· Where the court’s decision relies on the right not explicitly recognized by domestic law (eg Ashgar Legari v. Pakistan, 2015, and Association for Protection of Democratic Rights v. South of West Bengal, 2021)^{^[66]};

· Where the court’s decision acknowledges the implicit existence of the right as invoked by the applicants but does not rely on it (eg, Juliana v. USA, 2016/Appeals 2020, Friends of the Irish Environment, 2017, and Pandey v. India 2017)^{^[67]}.

· Where the court’s decision denies the existence of the right in national law, though invoked by the applicants in whole or in part (eg, Friends of the Irish Environment v. Ireland, 2020, and Neubauer v. Germany, 2021)^{^[68]}.

· Recent Judicial Trends in Nigeria on the Right to a Healthy Environment and Climate Justice^{^[69]}.

i. Summary: Centre for Oil Pollution Watch (COPW) Vs NNPC (2018)^{^[70]} Supreme Court of Nigeria

On 13 May 2005, the Centre for Oil Pollution Watch (COPW) commenced legal action against the respondent was described as the Nigerian National Petroleum Corporation, established by an Act of Parliament and carries on business of prospecting, mining, producing, exploring and storing persistent hydrocarbon mineral oil such as crude oil and so on. It has offices, oil installations, oil pipelines, oil rigs and so on in different parts of Nigeria , in the Federal High Court, Lagos Division, over an oil spillage in ACHA Community of Abia State of Nigeria. The oil spillage was allegedly caused by the defendant’s negligence resulting from its pipeline, which had corroded due to lack of maintenance, had ruptured, fractured and spewed its entire Contents of persistent hydrocarbon mineral oil into surrounding streams and river of lneh/Aku,, resulting in contaminating two community streams that were the major sources of water supply to the community. The Plaintiff / Appellant alleged that although the Defendant / Respondent contained the spillage on the surface, it failed to clean up or reinstate the Ineh/Aku streams / river. And averred that the respondent was negligent in both the causation and containment of the oil spillage; that the spillage had harmful effect on living resources, marine life, human health and other usage of the streams. The respondent challenged plaintiff’s standing to sue and sought an order striking the suit. On9 February, 2006, the trial court struck out the suit for lack of locus having not suffered any injury at all, let alone any injury above every other member of the Acha community resulting from the alleged oil spillage . On 28^th January, 20013 the Court of Appeal dismissed the appeal by reaffirming the trial court’s ruling. The plaintiffs appealed to the Supreme Court on 9^th March 2013. On 20^th July 2018, the Supreme Court unanimously granted the appeal in favor of the appellant.

The Supreme Court of Nigeria (SCN) held:

1. That the appellant NGO had the standing to sue the respondent, thereby liberalizing or broadening the rule of standing. The Supreme Court specifically highlighted “that public spirited individuals and organizations can bring an action in courts against relevant public authorities and private entities to demand their compliance with relevant laws and to ensure the remediation, restoration and protection of the environment.”

2. The Supreme Court further clarified that “Accordingly, every person, including NGOs, who bonafide seek the due performance of statutory functions or enforcement of statutory provisions or public laws, especially laws designed to protect human lives, public health and the environment, should be regarded as proper persons clothed with standing in law to request adjudication on such issues of public nuisance.”

3. The Supreme Court also acknowledged that recognizing public interest litigation will help address some other barriers to access to justice, as poor communities without “the financial muscle to sue” which usually and disproportionately bear the brunt of environmental and climate change problems, will have the benefit of public spirited persons and organisations fighting their cause.

4. The Supreme Court noted particularly, for the first time, that: “there is no gain saying in the fact that there is increasing concern about CLIMATE CHANGE, depletion of the ozone layer, waste management, flooding and GLOBAL WARMING etc… Both nationally and internationally, countries and organisations are adopting stronger measures to protect and safeguard the environment for the benefits of THE PRESENT AND FUTURE GENERATIONS … it is on account of this, inter alia, that I am of the firm view that this court, being a COURT OF POLICY should expand the locus standi of the Plaintiff/Appellant to sue” – Per Aka’ahs, JSC.

Further, the national resources of earth… “must be protected and conserved for the benefit of PRESENT AND FUTURE GENERATIONS through careful planning and management as appropriate” – Per Eko, JSC.

5. The Supreme Court also made significant strides in ‘GREENING’ The Nigerian Constitution and confirming the existence and enforceability of ENVIRONMENTAL HUMAN RIGHTS in Nigeria, in a manner that increases the possibility of successful climate change litigation in the country, especially by allowing public interest litigation^{^[71]}.

1^st, the Supreme Court held that Section 20 of the Nigerian Constitution on duty to protect the environment by the State is justiciable when read together with, and in the context of, a provision like section 4(2) of the Constitution, on the power to make laws to give effect to section 20.

2^nd, the SCN explicitly recognized for the first time, that section 33 of the Constitution which guarantees the Right to Life, implicitly includes and constitutes a fundamental rights to a clean and healthy environment for all.

3^rd, the Supreme Court explicitly affirmed the enforceability of the environmental right in Article 24 of the African Charter on Human and Peoples’ Rights as DOMESTICATED in Nigeria by the African Charter Act, Cap. A9 LFN 2004.

6. Finally, the Supreme Court decision in the above case aligns with the Constitutional Human Rights approach to Environmental and Climate Protection taken earlier by the Lower Court/Federal High Court in Jonah Gbemre vs Shell and others (Global Climate Change Litigation - Climate Change Litigation (climatecasechart.com/non-us-climate-change-litigation/)) It demonstrates a significant positive paradigm shift in the attitude of the Supreme Court to environmental and climate change related claims. It provides additional human rights and constitutional tools for potential climate litigation in Nigeria^{^[72]}.

ii. Summary: - JONAH GBEMRE V. SHELL, NNPC AND AGF (2005)^{^[73]}

The applicant, Gbemre, a representative of the Niger Delta Iwherekan community instituted an action against the Nigerian government for its failure to stop Shell oil Company in gas flaring for decades and against Shell for engaging in massive and unceasingly intense gas flaring in the community, in the course of its exploration and production activities, without considering the consequences of its environmental pollution impact on the communities’ loss of means of livelihood, collective survival and gas flaring’s contribution to adverse and potentially life-threatening Climate Changes, including poisonous acid rain. The applicant claimed that such gas flaring activities were violative of the community citizens rights to life and human dignity as constitutionally guaranteed by sections 33 and 34 of the 1999 Nigerian Constitution, and reinforced by Articles 4, 16, and 24 of the African Charter on Human and Peoples Rights (ratified and domesticated by Nigeria as Cap. A9, Laws of the Federation of Nigeria, 2004).

The Federal Hight Court sitting in Benin City of Nigeria, held that these constitutionally guaranteed rights inevitably include the rights to a clean, poison and pollution free environment. The federal Judge ruled that the actions of the respondents (Shell PDC and the Nigerian National Petroleum Corporation) in allowing and continuing to flare gas in the Applicant’s community is a violation of their fundamental rights to a clean and healthy environment. The judge further ruled that the failure of the Shell company to carry out an EIA in the said community concerning the effects of its gas flaring activities is a clear violation of the EIA Act thereby contributing to a further violation of the said rights. The Judge’s order restrained the respondents from further gas flaring and to take immediate steps to stop gas flaring in the community. The Judge further ordered the Attorney General of Nigeria to ensure speedy amendment of the Associated Gas Re-injection Act to be in line with Nigeria’s human rights obligations under both the Constitution and the African Charter. But the Judge made no award of damages, costs, or compensation whatsoever^{^[74]}.

iii. Update: - 2018-2021

1. COMPLIANCE UPDATE BY NIGERIAN GOVERNMENT IN 2018(13 YEARS) AFTER THE 2005 JUDGEMENT: - THE PROMULGATION BY THE PRESIDENT OF NIGERIA (BUHARI) OF THE FLARE GAS (PREVENTION OF WASTE AND POLLUTION) REGULATIONS, 2018.

This 25 set of Regulations provide for the first time, a legal framework for the protection of the environment against the effects of gas flaring, prevent waste of gas and the creation of social and economic benefits to Nigeria from gas flares. (Federal Republic of Nigeria official Gazette, No. 88, Vol. 105, S.I.No.9 of 2018, pp. B97-111, dated, Lagos, 9^th July 2018).

2. The Climate Change Act, and Policy 2021, AS A GOVERNMENT CLIMATE ACTION COMMITMENT TO Protect the climate against Harm, and underscores THE EFFECT OF CLIMATE CHANGE ON BIODIVERSITY LOSS AND LOSS OF MEANS OF LIVELIHOOD ETC BY MAJOR GHG EMITTERS (OIL AND GAS COMPANIES). 17^TH NOV. 2021: - Was the date of presidential Assent to the Latest Climate Change Act, 2021 in Africa (the 2^nd in Africa after Kenya’s Act of 2016 and the 1^st in West Africa). (www.nials.edu.ng).

vii. Two key features of climate litigation in the Global South:- The use by litigants of existing constitutional environmental and climate legislative tools and human rights discourses to highlight the vulnerability of their populations to climate change and protect their valuable ecosystems, despite their capacity constraints to provide context to the approach to climate litigation. Hence such litigants do not necessarily focus on eliciting new regulatory targets on reducing carbon emissions from government, as litigants from the Global North do^{^[75]}.

viii. Key procedural challenges or legal issues in climate litigation worth noting are^{^[76]}:- the requirement of locus standing to sue, separation of powers doctrine; the extent of duty of care of the state and causation; exhaustion of local remedies before accessing some regional human rights courts like the African Court on Human Rights, unlike the sub-regional West African ECOWAS Community Court of Justice^{^[77]} in Abuja, where such requirement is dispensed with; admissibility challenge of victimhood criterion (e.g. victim of a human rights violation as a group or community, except where one is acting in public interest litigation before the African Human Right System)^{^[78]}.

Hence, the dearth of climate cases before the African Human Rights System and the paucity of climate litigation in domestic courts of African States. Though there is a potential for increased climate litigation against governments for climate action,^{^[79]} while exploring the role of human rights law in the Equitable and Just Transition to Renewable Energy penetration in the Energy mix^{^[80]} that includes fossil fuels and renewable energy, aimed to ending energy poverty and energy deficit in Africa^{^[81]}. This strategic solutions based approach underscores the need for accountability and transparency in pursuit of a Just and Equitable Energy Transition^{^[82]} as well as the need for countries that have contributed the most to climate change crisis taking lead in financing and implementing climate actions^{^[83]}.

ix. Finally, moving forward, the following are worth noting in our strategic human rights approach for climate action^{^[84]} -

i. the urgency and scale of action required to address climate change, also creates an additional risk: - that responses to climate change could disregard human rights standards and infringe on the rights of local communities and vulnerable groups such as children, youth, women, indigenous people and displaced persons or forced migrants^{^[85]};

ii. the scientific community has stressed that climate action is more effective if it reinforces human rights, women’s empowerment, public participation, and full respect for the rights and traditional knowledge of local communities and indigenous peoples^{^[86]}.

iii. The human rights treaty bodies’ growing body of work on climate change is a welcome development that deserves greater attention. Their recommendations have significant potential to support and strengthen climate advocacy, litigation, campaigns and education, and climate advocates should consider opportunities to engage with these bodies and influence their outputs^{^[87]}.

iv. Despite their capacity constraints in many developing countries (out of over 100), National Human Rights Institutions^{^[88]} have enormous potential to promote, protect and ensure fulfilment of human rights in the climate accountability context^{^[89]}.

3. The Human Right Mandate of the ECOWAS Court of Justice

3.1 . Prospects in Litigating Public Rights before the ECOWAS Community Court of Justice (ECCJ)

The prospect of Public Rights litigation before the ECCJ lies in the following facts: -

a. Because ECCJ has both the expanded mandate and jurisdiction to entertain Public Rights/ Interest Litigation (PRL/PIL)

Primary Mandate

The primary mandate of the ECOWAS Court of Justice was ably encapsulated in the preamble of its Protocol in the following words:

“…the essential role of the Community Court of Justice is to ensure the observance of law and justice in the interpretation and application of the Treaty and the Protocols and Conventions annexed thereto and to be seized with responsibility for settling such disputes as may be referred to it in accordance with the provisions of Article 56 of the Treaty and disputes between States and the Institutions of the Community.”

Article 9, on the competence of the Court (now repealed) of the Protocol made it abundantly clear, that the mandate of the Court was to resolve disputes between Member States or Institutions of the Community, relating to the interpretation and application of the Treaty and the annexed Protocols and Conventions, while Article 10 thereof, gave the Court the competence to give Advisory Opinion.

The Court highlighted its primary mandate of interpreting and applying Community texts in Hon. Jerry Ugokwe v. Nigeria (2004 - 2009) CCJ ELR 37 at paragraph 20 in the following words:

“The Treaty which is the fundamental law of ECOWAS, particularly the Protocols relating to the ECOWAS Court of Justice, only invests the Court with speciﬁc powers and prerogatives, insisting always on its mandate concerning the observance of law in their interpretation and application.”

Expanded Mandate

There was a paradigm shift in the mandate of the Court in 2005, following the adoption of the Supplementary Protocol which amended the initial Protocol on the Court. The Supplementary Protocol expanded the jurisdiction and invariably the mandate of the Court. In very broad terms, the current mandate of the ECOWAS Court of Justice can be categorized as follows:

(a) Mandate as a Community Court

(b) Mandate as an Arbitration Tribunal

(d) Mandate as a Human Rights Court

Most signiﬁcantly, the Supplementary Protocol, for the very ﬁrst time, granted direct access to the Court to individuals and corporate bodies in respect of certain causes of action, including human rights.

Mandate as a Community Court.

The most signiﬁcant mandate of the Court as a Community Court is its primary mandate of interpretation and application of ECOWAS Community texts. In the exercise of its jurisdiction of interpreting and applying ECOWAS Community texts, the Court has given numerous Decisions.^{^[90]} These texts include the Revised Treaty, Conventions, Protocols, Regulations, Directives and Decisions and other subsidiary legal instruments adopted by ECOWAS.

Also, the Court has competence to adjudicate in disputes relating to the legality of Regulations, Directives, Decisions and other subsidiary legal instruments adopted by ECOWAS or the failure by Member States to honour their obligations under the Treaty, Conventions and Protocols and other Community texts. The Court also has competence to adjudicate on disputes relating to non contractual liability of the Community. It also has jurisdiction in respect of actions relating to damages against a Community Institution or an ofﬁcial of the Community for any act or omission in the exercise of ofﬁcial functions. The mandate of the Court as a Community Court also includes giving Advisory Opinion and giving Preliminary Rulings in respect of referrals from national Courts of Member States. The Court has issued several advisory opinions at the request of the ECOWAS Commission.^{^[91]}

The Authority of Heads of State and Government can also grant the Court the power to adjudicate on any speciﬁc dispute that it may refer to the Court other than those speciﬁed in the Protocol.^{^[92]}

Preliminary Ruling (Reference from National Courts of Member States)

Another important aspect of its mandate as a Community Court is in respect of Preliminary Ruling. Since the Court has exclusive jurisdiction in respect of the interpretation and application of ECOWAS Community texts^{^[93]}, national Courts of Member States are required to refer issues of interpretation of Community texts to the ECOWAS Court of Justice in order to ensure uniformity in the interpretation of community texts. Speciﬁcally, Article 10 (f) of the Protocol as amended, provides as follows:

“Where in any action before a court of a Member State, an issue arises as to the interpretation of a provision of the Treaty, or the other Protocols or Regulations, the national court may on its own or at the request of any of the parties to the action refer the issue to the Court for interpretation.”

The European Court of Justice exercises a similar jurisdiction under the concept of Preliminary Ruling. Although the issue of referral is discretionary as stipulated above it appears to be more evolved in the practice of European national Courts that refer cases to the European Court of Justice for Preliminary Ruling. This concept of Preliminary Ruling as practiced by the European Court is yet to take root in the context of regional integration in Africa. No national Court of a Member State has referred a matter for the interpretation of ECOWAS Community texts to the Court. We however believe that this is a useful and necessary provision for the development of ECOWAS Community Law.

Mandate as ECOWAS Public Service Court

The ECOWAS Court of Justice has competence under its Protocol to adjudicate on any dispute between the Community and its ofﬁcials^{^[94]}. In this regard, access to the Court is open to staff of any Community Institution, after the staff member has exhausted all appeal processes available to the ofﬁcer under the ECOWAS Staff Rules and Regulations. Article 73 of the 2005 Staff Regulations preserves the right of staff members to seek redress before the Court. It speciﬁcally provides that in all circumstances, the ﬁnal Court of Appeal shall be the Community Court of Justice. In the exercise of its jurisdiction as an ECOWAS Public Service Court, the Court has resolved many disputes between aggrieved staff members and Institutions of the Community.^{^[95]}

Mandate as Arbitration Tribunal.

Article 16 (1) of the Revised Treaty established an Arbitration Tribunal of the Community. Article 16 (2) thereof, provides that the status, composition, powers, procedure and other issues concerning the Arbitration Tribunal shall be set out in a Protocol relating thereto. Until date, the Protocol to set up the Arbitration Tribunal as envisaged above has not yet been adopted. However, the 2005 Supplementary Protocol on the Court, amending the initial Protocol, gave the Arbitration jurisdiction to the ECOWAS Court of Justice, pending the establishment of the Arbitration Tribunal of the Community.

Speciﬁcally, Article 9 (5) thereof, provides as follows:

“Pending the establishment of the Arbitration Tribunal provided for under Article 16 of the Treaty, the Court shall have power to act as Arbitrator for the purpose of Article 16 of the Treaty.”

The Court has concluded work on its Rules of Arbitration and submitted it for the approval of the ECOWAS Council of Ministers. The Court will start to exercise its Arbitration jurisdiction after the Council approves its Rules of Arbitration.

Mandate as a Human Rights Court

The most prominent mandate of the ECOWAS Court of Justice, is its mandate as a human rights Court. It is crystal clear, that the human rights jurisdiction of the ECOWAS Court of Justice is the centre piece of its judicial activities, around which, its jurisprudence has ﬂourished. The adoption of the Supplementary Protocol in January 2005, which granted human rights jurisdiction to the ECOWAS Court of Justice, was a turning point in the history of the Court.

The incredible impact of the Supplementary Protocol is attributable to the access granted to individuals to the Court in respect of certain causes of action, the human rights mandate and the independence of the Court. Today, we can proudly say, that the ECOWAS Court of Justice is a pace setter amongst Regional Courts in Africa. The paradigm shift is essentially anchored on the human rights mandate of the Court.

Fluid and indeterminate human rights jurisdiction.

It should however be noted, that the human rights jurisdiction of the Court is very ﬂuid and indeterminate. Article 9 (4) of the Protocol of the Court, as amended, simply provides that “the Court has jurisdiction to determine cases of violation of human rights that occur in any Member State.” There is no catalogue of human rights and the Protocol does not state the applicable human rights instruments. This lacuna has presented the Court a great opportunity to deﬁne and delimit the scope and legal parameters of its human rights mandate in its own image.

Scope of its human rights mandate.

The Court has given many decisions establishing the extent, scope and legal boundaries of its human rights mandate. By virtue of Article 4 (g) of the Revised Treaty and the Protocol on Democracy and Good Governance, the Court applies the African Charter on Human and Peoples’ Rights. The Court will also apply against any Member State any International Human Rights instruments adopted or ratiﬁed by the Member State.^{^[96]}

b. Because Access to ECCJ is a fundamental Right of Community Citizens

ECOWAS Court of Justice initially conceived as an Inter-State Court.

The ECOWAS Court of Justice was initially conceived as an Inter State Court. The Protocol on the Court, did not give direct access to the Court to individuals and corporate bodies. Article 9 (3) of the said Protocol (now repealed) provided that a “Member State may, on behalf of its nationals, institute proceedings against another Member State or institution of the Community, relating to the interpretation and application of the provisions of the Treaty, after attempts to settle the dispute amicably have failed”. The Revised Treaty of ECOWAS reinforced the inter-state nature of the mandate of the Court. Article 76 of the Revised Treaty provides as follows:

“1. Any dispute regarding the interpretation or the application of the provisions of this Treaty shall be amicably settled through direct agreement without prejudice to the provisions of this Treaty and relevant Protocols.

2. Failing this, either party or any other Member State or the Authority may refer the matter to the Court of the Community whose decision shall be ﬁnal and shall not be subject to appeal.”

Under the Protocol and the Revised Treaty, only Member States or institutions of the Community had direct access to the Court. The implication of the said provisions was that ECOWAS Community citizens did not have direct access to their Community Court. This had an adverse effect on the quantum of cases lodged before the Court because Member States and Institutions of the Community that had direct access under the Protocol did not exercise that right. Between January 2001 and January, 2005 when the Protocol was amended only two (2) Applications were lodged before the Court and they were lodged by individuals, which made them inadmissible.

The issue of access to the Court by individuals under the Protocol was the main point for consideration in the judgment of the Court in Olajide Afolabi v. Federal Republic of Nigeria. (2004–2009) CCJELR 1. The decision of the Court in this case made it imperative to amend the Protocol in order to grant direct access to the Court to individuals and corporate bodies. Supplementary Protocol A/SP.1/01/05 that amended the initial Protocol on the Court, substituted Article 9 of the Protocol with a new Article 9 on jurisdiction, and thereby expanded the jurisdiction of the Court.^{^[97]}

Following the adoption of the Supplementary Protocol in January 2005, individuals and/or corporate bodies were given direct access to the ECOWAS Court of Justice in respect of certain causes of action, including human rights. Therefore, the ECOWAs Court of Justice is no longer strictly an inter-state Court.

Access to ECOWAS Court of Justice under Community Texts

There are provisions in some Community texts that guarantee access to the ECOWAS Court of Justice to Member States, institutions of ECOWAS, individuals and corporate bodies. These texts include: the Revised Treaty, Protocols, Supplementary Acts, Regulations and Directives. In particular, Article 10 of the Protocol as amended by the Supplementary Protocol has elaborate provisions in respect of access to the Court.^{^[98]} Under this provision, Member States, individuals and corporate bodies have access to the Court for different causes of action. Also, the Staff Regulations guarantees access of Community public ofﬁcials to the Court. Other Community texts, like Supplementary Act A/SA.3/12/08 Adopting Community Rules on Investment and the Modalities for their implementation with ECOWAS, gives access to Member States, Investors and Host States to the Court in respect of dispute settlement under the Act. See also the ECOWAS Directive on the Harmonization of Guiding Principles and Policies in the Mining Sector which grants access to any State, individual or stakeholders to the ECOWAS Court for dispute resolution under the Directive.

Access to a Regional Court

Access to Court is a fundamental issue in the administration of justice and in the rule of law. There is also, a very strong nexus between access to Court and the regime of Human Rights in any given State. The promotion and protection of Human Rights can only be enhanced where the rule of law reigns by having a system of government according to law. The Court system is the bedrock of the rule of law the administration of justice, and constitutional right of access to Court is the key to the rule of law.

Access to justice at the international level is also expedient. Previously, only State Parties were subjects of international law. However, new developments in international human rights law and international humanitarian law now give individuals access to international justice. Regional Courts should therefore not merely exist as inter-state Courts. The tendency now globally is for individuals to be given access to Regional Courts, especially for human rights violations^{^[99]}. In order to facilitate greater access of Community citizens to the ECOWAS Court of Justice, the Court has been considering the idea of establishing sub-registries in Member States and establishing a legal aid fund.

c. Because ECCJ has developed a Jurisprudence of its own Guiding Principles

Guiding Principles.

In the light of its ﬂuid and indeterminate human rights mandate, the Court has through its decisions deﬁned and delimited the scope of its human rights mandate. A careful study of the jurisprudence of the Court on its human rights mandate will reveal some guiding principles.

No requirement for exhaustion of local remedies.

A key element of the human rights mandate of the Court is that exhaustion of local remedies is not a requirement. Article 10 (d) of the Protocol as amended, provides that access to the Court is open to individuals on application for relief for violation of their human rights on the condition that the Application is not anonymous nor be made whilst the same matter has been instituted before another International Court for adjudication. The Court has therefore decided emphatically in a long line of cases, that exhaustion of local remedies is not a requirement under ECOWAS Community texts for human rights litigation.^{^[100]}

The effect of this is far reaching because victims of human rights violations may choose to directly approach the ECOWAS Court of Justice without exhausting local remedies at the national courts. Although the exhaustion of local remedies is a well recognized principle of customary international law, the Court has held that it can be waived or legislated away.^{^[101]}

Neither is the lack of provision for exhaustion of local remedies, a lacuna in the law that it can ﬁll in, using its judicial discretion.^{^[102]}

In Musa Saidykhan v. The Republic of The Gambia (supra) the Court held as follows:

“The drafters of the Supplementary Protocol clearly decided against making the exhaustion of local remedies a condition precedent to the accessibility of this Court in human rights violation causes. The fact that there is a rule of customary international law is support of the view that local remedies ought to be exhausted before a plaintiff can properly go before international Courts is not in doubt. However, this is not an inﬂexible rule. It can be legislated away or even parties can compromise it. Article 10(d) of the Supplementary Protocol is an example of legislating out of the rule of customary international law regarding the exhaustion of local remedies. With the enactment of the Supplementary Protocol, ECOWAS Member States expressly dispensed with the customary international law rule regarding the exhaustion of local remedies before access is granted to Plaintiffs coming before this Court”.

The Court emphasized this point again, in Ocean King Nigeria Ltd v. Republic of Senegal (supra) in the following words:

“The rule on exhaustion of local remedies is derived from customary international law which requires the exhaustion of local remedies before a claim may be brought before an international tribunal. However, it is not an inﬂexible rule. For instance, the International Court of Justice held in the case titled Electronica Sicula Sp.4, (ELSI Case), (Second Phase), ICJ Rep, 1989, that exhaustion of local remedies may be waived by express provision in a treaty. Thus by Article XI(I) of the Convention on International Liability for Damage caused by Space Objects, 1972, the requirement of the exhaustion of local remedies was dispensed with.

Under Article 10 of the Supplementary Protocol of 2005, any provision of a prior Protocol which is inconsistent with the provisions of the 2005 Supplementary Protocol is to the extent of the inconsistency null and void. Thus, Article 39 of the Protocol on Democracy and Good Governance, which is clearly in conﬂict with the provisions of Article 4(d) of the Supplementary Protocol of 2005 with respect to the exhaustion of local remedies as a condition precedent to the institution of an action in human rights, is null and void to that extent. The 1991 Protocol, as amended by the Supplementary Protocol, forms an integral part of the Treaty and thus the exclusion of exhaustion of local remedies under the Protocol is perfectly valid in international law.

That being the position of the law, this Court has decided in a plethora of cases including Prof. Etim Moses Essien v. Republic of the Gambia & Anor (Suit No. ECW/CCJ/APP/0505, judgment delivered on 29th October, 2007), Musa Saidykhan v. Republic of the Gambia (Suit No. ECW/CCJ/APP/11/07, judgment delivered on 16th December and Hadijatou Mani Korou v. Republic of Niger (supra) that the exhaustion of local remedies is not a condition precedent for the institution of an action for the relief of violation of human rights before it. Therefore, a plaintiff is not obliged to exhaust local remedies in order to have access to this Court”.

Article 10 (d) (ii) of its Protocol as amended

The Court has applied the conditions in Article 10 (d) (ii) of its Protocol , as amended, in its jurisprudence. In Valentine Ayika v. Republic of Liberia ECW/ CCJ/APP/07/11, it ruled the case admissible notwithstanding the fact that it was alleged to be pending before the Supreme Court of a Member State. It stated as follows:

“the Supreme Court of Liberia, and for that matter any other domestic court in Member States, does not qualify as international court within the meaning of Article 10 (d) (ii) of the Protocol as amended and that the pendency of an action before the Liberian Supreme Court is no bar to proceedings before this Court.^{^[103]}

In Mme Aziablevi Yovo et 31 autres v. Societe Togo Telecom et Etat Togolais^{^[104]} the Court also declined jurisdiction on the ground that the matter was previously instituted before the OHADA Court, which is an international Court.

Supranationality of ECOWAS and holding Member States accountable for their Treaty obligations.

It is signiﬁcant to note that the Court has maintained the supranationality of ECOWAS and the ECOWAS Court of Justice in its jurisprudence.^{^[105]} It has also insisted on holding Member States accountable for their Treaty Obligations under international instruments. It is not constrained by the domestic laws of Member States, including national constitutions that are inconsistent with their Treaty Obligations.^{^[106]}

In the case of Musa Saidykhan v. Republic of The Gambia (supra) the Court expounded the law on this issue in the following words:

“ECOWAS is a supra national authority created by the Member States wherein they expressly ceded some of their sovereign powers to ECOWAS to act in their common interest. Therefore, in respect of those areas where the Member States have ceded part of their sovereign powers to ECOWAS, the rules made by ECOWAS supersede rules made by individual Member States if they are inconsistent. The Revised Treaty of ECOWAS was ratiﬁed by all the Member States of ECOWAS, including the Defendant/Applicant herein. This Court is the offspring of the Revised Treaty; and this Court is empowered by the Supplementary Protocol on the Court of Justice, which is part of the instruments of implementation of the Treaty and has the same legal force as the Treaty, to adjudicate on issues of human rights arising out of the Member States of ECOWAS.

Therefore, it is untenable for a Member State of ECOWAS to claim that a matter is essentially within its domestic jurisdiction when it had expressly or by necessary implication gra nted ECOWAS powers to act solely or concurrently with national jurisdiction in respect of that matter. Defendant / Applicant herein, being bound by both the Revised Treaty and the Supplementary Protocol on the Court of Justice which granted jurisdiction over human rights causes to this Court, cannot be heard to say that human rights causes are matters essentially within their domestic jurisdiction and for which reason this Court ought not to interfere with them.

Article 2 of the United Nations Charter, which seeks to prevent interference in the domestic affairs of sovereign states is not applicable here. Article 2 of that Charter applies to matters that are essentially domestic in nature and over which the state in question has not acquired any international obligation in respect thereof. When a sovereign State freely assumes international obligations and is being held accountable in respect of those obligations, that state cannot renounce those obligations under the pretext that the matter in question is one that falls essentially within its domestic jurisdiction. Defendant/Applicant, being a Member State of ECOWAS, is bound by the obligations that it has assumed under the Revised Treaty and the Protocols thereof. Consequently, Article 2 of the United Nations Charter does not enure to the beneﬁt of Defendant/Applicant in this case.”

In Peter David v. Ambassador Ralph Uwechue (supra) the Court stated as follows:

“the international regime of human rights protection before international bodies relies essentially on treaties to which States are parties as the principal subjects of international law. As a matter of fact, the international regime of human rights imposes obligations on States. All mechanisms established thereof are directed to the engagement of State responsibility for its commitment or failure towards those international instruments.”

The Court will therefore enforce any right guaranteed by the African Charter on Human and Peoples’ Rights notwithstanding the fact that such right is not justiciable under the constitution of a Member State. For instance, the right t to education which is guaranteed by Article 17.1 of the Charter, is a non justiciable or enforceable right under the 1999 Constitution of the Federal Republic of Nigeria. This inconsistency was the main issue for consideration by the Court in its Ruling in Registered Trustee of the Socio-Economic Rights and Accountability Project (SERAP) v. (1) Federal Republic of Nigeria (2) Universal Basic Education Commission (SUIT NO ECW/ CCJ/APP/08/08 Ruling of 27th October, 2009 Paragraph 18, 19 and 20) where it held as follows:

“The directive principles of state policy of the Federal Republic of Nigeria are not justiciable before this Court as argued by second defendant and that act was not contested by the plaintiff. And granted that the provisions under directive principles of state policy were justiciable, it would be the exclusive jurisdiction of the Federal High Court, being a matter solely within the domestic jurisdiction of the Federal Republic of Nigeria. However, the plaintiff alleges a breach of the right to education contrary to the provisions of the African Charter on Human and Peoples’ Rights. The right to education recognized under Article 17 of the African Charter is independent of the right of education captured under the directive principles of state policy of the 1999 Federal Constitution of Nigeria. It is essential to note that most human rights provisions are contained in domestic legislations as well as international human rights instruments. Some of the fundamental human rights, such as the right to life, have even been elevated to the status of “jus Cogens”, peremptory norms of international law from which no derogation is permitted. Hence the existence of a right in one jurisdiction does not automatically oust its enforcement in the other. They are independent of each other. Under Article 4(g) of the Revised Treaty of ECOWAS, Member States of ECOWAS afﬁrmed and declared their adherence to the recognition, promotion and protection of human and peoples’ rights and in accordance with the provisions of the African Charter on Human and Peoples’ Rights. The ﬁrst defendant is a signatory to the African Charter on Human and Peoples’ Right and reenacted it as laws of the Federal Republic of Nigeria to assert its commitment to same. The ﬁrst defendant is also signatory to the Revised Treaty of ECOWAS and is therefore bound by their provisions. It is trite law that this Court is empowered to apply the provisions of the African Charter on Human and Peoples’ Rights and Article 17 thereof guarantees the right to education. It is also well established that the rights guaranteed by the African Charter on Human and Peoples’ Rights are justiciable before this Court.

Therefore, since the plaintiff ’s application was in pursuance of a right guaranteed by the provisions of the African Charter, the contention of second defendant that the right to education is not justiciable as it falls within the directive principles of state policy cannot hold”.

In the exercise of its human rights jurisdiction the Court is also not constrained by the fact that the Protocol has not been domesticated by any given Member State. This was one of the issues before the Court in the preliminary objection of the 1st and 2nd Defendants in Moukhtar Ibrahim Aminu v. Government of Jigawa State & 3 Ors. In this case, the Defendants, in their preliminary objection, contended that the Court did not have jurisdiction to entertain the action on the ground, inter alia, “that the Protocol of the Court of Justice which gave it the power to hear and determine issues of violation of Human Rights by individuals has not been domesticated in Nigeria as provided for under Section 12 of the Constitution of the Federal Republic of Nigeria.

It was not in dispute that the Revised Treaty of ECOWAS and the Protocols relating to the Court have not been domesticated by Nigeria. Furthermore, section 12 (1) of the 1999 constitution of the Federal Republic of Nigeria provides inter alia, that “No treaty between the Federation and any other country shall have the force of law except to the extent to which any such Treaty has been enacted into law by the National Assembly”. The Court held as follows:

“It is trite that the question of domestication is entirely a local duty of the State to comply with its domestic laws including its constitution. However, where the action of the State is indicative of the fact that it intends to abide by the contents of the Treaty and proceeded to enact into law the provision of the African Charter on Human and Peoples’ Rights contained in Article 4(g) of the Revised Treaty makes the objection of the 1st and 2nd Defendants a non issue and immaterial. As always, a State cannot approbate and reprobate in respect of domestication of Treaties, that it derives beneﬁts from its application. It is common knowledge that the Revised Treaty was ratiﬁed by the Federal Republic of Nigeria, on 1st July, 1994. With such ratiﬁcation, the Revised Treaty as far as the Community Law is concerned, become applicable in the institutions of the community – ECOWAS including this Court. The Protocols of the Court which are annexed to the Revises Treaty form an integral part thereof”

ECOWAS Court as an International Court

The Court has maintained that it is an international Court, and will therefore follow the practice of other international Courts. It emphasized its international character, in delimiting the scope of its human rights jurisdiction in Peter David v. Ambassador Ralph Uwechue. In this application by an individual, against another individual for alleged violation of rights guaranteed under the Charter, it held that the ECOWAS Court of Justice “is an International Court established by Treaty and by its own nature it should primarily deal with disputes of international character and essentially applies international law, and as an International Court with jurisdiction over human rights violations, the Court cannot disregard the basic principles as well as the practice that guide the adjudication of the disputes on human rights at the international level”^{^[107]}

The Court further enunciated the jurisprudence on the issue in the following words:

“Viewed from this angle, the Court recalls that the international regime of human rights protection before international bodies relies essentially on treaties to which States are parties as the principal subjects of international law. As a matter of fact, the international regime of human rights imposes obligations on States. All mechanisms established thereof are directed to the engagement of State responsibility for its commitment or failure towards those international instruments.

Even before the African Commission on Human Rights, the closest reference to this Court, only States parties to the African Charter on Human and Peoples’ Rights are held accountable for the violation of the fundamental rights recognized in the said instrument.

Up till now the responsibility of the individuals at the international level for the violation of Human Rights is limited to criminal domain, and even in such circumstances, the international courts intervene only on subsidiary grounds, that is to say, where the domestic courts cannot or fail to hold the perpetrators of such violations accountable.

From what has been said, the conclusion to be drawn is that for the dispute between individuals on alleged violation of human rights as enshrined in the African Charter on Human and Peoples’ Rights, the natural and proper venue before which the case may be pleaded is the domestic court of the State party where the violation occurred. It is only when at the national level there is no appropriate and effective forum for seeking redress against individuals, that the victim of such offences may bring an action before an international Court, not against the individual, rather against the signatory State for its failure to ensure the protection and respect for the rights allegedly violated.

Within ECOWAS Community, apart from Member States, other entities that can be brought to this Court for alleged violation of human rights are institutions of the Community because, since they cannot, as a rule, be sued before the domestic jurisdiction, the only avenue left to the victims for seeking redress for grievance against those institutions is the Community Court of Justice.

Consequently, the Community Court of Justice does not have jurisdiction to entertain a dispute between individuals arising from alleged violation of human rights committed by one against another. “

The clear decision of the Court is that such disputes are not within its jurisdiction but that of the domestic Courts. Accordingly, the Court has held that it cannot metamorphose into a domestic court and has reserved certain human rights actions for the national courts and in respect of which it has declined jurisdiction. They include action by an individual against another individual for human rights violations^{^[108]}. It has also maintained that only Member States and Institutions of the Community can be sued before the Court for human rights violations, and has dismissed applications for human rights violations instituted by or against Limited Liability companies for lack of jurisdiction^{^[109]}.

Application of Article 38 (1) of the Statute of the International Court of Justice.

Article 19 of the Protocol on the Court, provides that “the Court shall examine the disputes before it in accordance with the provisions of the Treaty and its Rules of Procedure. It shall also apply as necessary, the body of laws as contained in Article 38 of the Statutes of the International Court of Justice”. In many cases before it, the Court has resorted to Article 38 of the ICJ statutes, which spells out the sources of international law. In Hon Dr. Jerry Ugokwe’s case^{^[110]} the Court stated as follows:

“The ECOWAS Court of Justice, in accordance with Article 19(1) of the Initial Protocol, and particularly with reference to Article 38 (1) (c) of the Statute of the international Court of Justice, the latter enables us to apply the general principles of law recognized by civilized nations.

The Court has also applied this provision in many other cases^{^[111]}

ECOWAS Court not an Appellate Court of National Courts.

The Court has also made it crystal clear in several decisions that it does not have appellate jurisdiction over the decisions of national courts. In Frank Ukor v. 1) Rachad Lalaye 2) The Government of The Republic of Benin, the Court in its judgment of 2nd November, 2007 stated as follows:

We therefore agree with Counsel to the 2nd Defendant that the acts complained of by the Applicant/Plaintiff are devoid of violation of Human Rights. We therefore state that there is a serious misconception as to whether the complaint of the seizure and conﬁscation of the truck and goods therein, upon the Court order, violates the rights of free movement of goods which Counsel hinges upon as Human Rights violation. It is trite that a valid order of the Court stands until any person dissatisﬁed with same makes the move by following the relevant judicial process to set it aside. Consequently, this Court which has no appellate jurisdiction over the decisions of the Courts of Member State cannot act as one through this process that Counsel of the Applicant/Plaintiff impressed upon it to enforce. On this note, this Court declines to act outside its mandate as speciﬁed in Protocol A/P1/7/91 and the Supplementary Protocol (A/SP.1/01/05) which clearly spelt out such mandate.

See also Hon. (Dr) Jerry Ugokwe v. Federal Republic of Nigeria; Moussa Leo Keita v. The Republic of Mali.

Alleged Human Rights violation should be clearly indicated.

In Moussa Leo Keita’s Case, the Court reafﬁrmed its competence to adjudicate on cases of human rights violation in accordance with Articles 9(4) and 10(d) of its 2005 Supplementary Protocol, but that the speciﬁc human right that is violated must equally be clearly indicated. The African Charter on Human and Peoples’ Rights as well as the Universal Declaration of Human Rights have set out rights in such clear terms as to indicate precisely what constitutes a Human Right violation and what does not. The Court declared the Application inadmissible because it did not make mention of any infringement which may be characterized as a fundamental Human Right violation. Indeed, the Court held that even if it were competent to adjudicate in cases on Human Rights violation, the Applicant had not indicated any proof of a characteristic violation of a fundamental Human Right.

The Right of NGOs to institute action for Human Rights Violations

The Court has held in numerous cases that NGOs can maintain actions for human rights violations, especially for public interest litigation and in respect of group rights. This issue was dealt with by the Court in a well considered Ruling in The Registered Trustees of The Socio-Economic Rights and Accountability Project (SERAP) v. President of The Federal Republic of Nigeria and 8 Ors (Supra) Two of the issues considered by the Court in its Ruling in this case instituted by an NGO, are the existence of the Plaintiff as a judicial person or legal entity under Nigeria law and the capacity or locus standi of the Plaintiff to institute proceedings for alleged violation of human rights that affects people living in the region of the Niger Delta in respect of environmental devastation.

The Court held that the Plaintiff is an entity duly and legally registered under the Companies and Allied Matters Decree 1 of 1999 of the Federal Republic of Nigeria with a certiﬁcate of incorporation and that it had held in a previous case involving the Plaintiff in Registered Trustees and Accountability Project v. Federal Republic of Nigeria & Universal Basic Education Commission, that the Plaintiff (SERAP) is a human rights non -governmental organization registered under the laws of the Federal Republic of Nigeria. On the locus standi of the Plaintiff, the Court stated that it ﬁrstly relies on the nature of the dispute brought before it for adjudication, and that there is a large consensus in international law that when the issue at s take is the violation of rights of entire communities, as in the case of the damage to the environment, that access to justice should be facilitated. The Court referred to Articles 2 (5) and 9 of the Convention on “Access to information, Public Participation in Decision Making and Access to Justice in Environmental Matter” and noted that although the Convention is not a binding instrument on African States, its importance, as a persuasive evidence of an international communis opinion Juris in allowing NGO’s to access the Courts for protection of Human Rights related to the environment, cannot be ignored or underestimated by the Court.^{^[112]}

The Court further noted that the capacity of NGO’s to lodge complaints related to Human Rights is also recognized by the American Convention on Human Rights and that Article 33 of the Rules of Procedure of African Court of Justice and Human Rights also opens the door of that Regional Court to non-governmental organizations which have observer status before the African Commission. It referred to the commendation of the role of NGOs and the “usefulness of action popularis, which is wisely allowed under African Charter “by the African Commission in Social and Economic Rights Action Centre (SERAC) & Anor v Nigeria (2001) AHRLR 60 “Based on those authorities, and taking into account the need to reinforce the access to justice for the protection of human and people rights in the African Context, the Court holds that an NGO duly constituted according to national law of any ECOWAS Member State, and enjoying observer status before ECOWAS institutions can ﬁle complaints against Human Rights violation in cases that the victim is not just a single individual, but a large group of individuals or even entire communities. Thus in considering the social purposes of the Plaintiff and the regularity of its constitution it does not need any speciﬁc mandate from the people of Niger Delta to bring the present law suit to the Court for the alleged violation of human rights that affect people of that region”^{^[113]}

d. Because ECCJ Judgements are legally binding and enforceable

Enforcement of the Decisions of the ECOWAS Court of Justice.

The enforcement of the decisions of the ECOWAS Court of Justice remains a major challenge for the Court. Article 24 of the Protocol, as amended, makes provisions for the method of enforcement of the decisions of the Court. Under the said provision, the decisions of the Court are to be enforced by the relevant Member State in accordance with the Rules of Civil Procedure of that Member State. All Member States are to determine the competent national authority for the purpose of receipt and processing the enforcement. Also, Article 15(4) of the ECOWAS Revised Treaty provides that the “judgment of the Court of Justice shall be binding on the Member States, the institutions of the Community and on individuals and corporate bodies”. Furthermore, Article 23(3) of the Protocol provides that “Member States and Institutions of the Community shall take immediately all necessary measures to ensure execution of the decision of the Court.

Another provision relating to the enforcement of the decision of the Court is Supplementary Act A/SP.13/02/12 on Sanctions Against Member States that fail to honour their obligations to ECOWAS. Under this Supplementary Act, there are judicial and political sanctions for non fulﬁllment of legal obligation by Member States. Notwithstanding these provisions, not many decisions of the Court have been enforced. Only three Member States have appointed the competent national authority responsible for the enforcement of the decisions of the Court.

3.2 RELEVANCE OF ECCJ; - FROM A LIMITED JURISDICTION TO A FOUR -FOLD MAN*DATE COURT – 2005 TO 2024: - ACHIEVEMENTS RECORDED SO FAR.

Operational efficiency and effectiveness in the discharge of its mandate.

• Compared with other regional economic integration courts / tribunals in Africa, in terms of impactful deliverable outputs or performance appraisal consistency, boldness, though in some cases very controversial, richness in human rights Jurisprudence and above all, demonstrable maturity, it is perceived by many analysts as the strongest and most independent of all in Africa.

• Since the amendment of the Protocol in 2005 till 2023, the Court has received a total of 641 cases, delivered 135 rulings and 400 judgments, most of which relate to the human rights mandate of the Court. It is gladdening that the Court continues to receive more complains on a daily basis. There is therefore no gainsaying that the Court plays a very vital role in the protection of human rights in the sub-region.

• The Court recognises that despite this achievements, many ECOWAS citizens are unaware of its existence and are therefore unable to access the Court for the protection of their rights. For this reason, it has put in place strategies for enhanced visibility. In this wise, the Court has intensified efforts to enhance awareness of its existence through its external sessions, the publication of its judgments both online and in the Law Report for dissemination within the sub-region and beyond. The Court also undertakes sensitization missions to Member States to raise awareness of key stakeholders about its work.

• Furthermore, the Court is in the process of creating a Legal Aid Fund to facilitate access to justice for victims of human rights abuses that cannot afford legal representation. When established, the Legal Aid Fund will be a milestone achievement for the ECOWAS sub region.

• Additionally, The Court collaborates with international organisations to improve on the protection of human rights, the United Nations High Commissioner for Refugees being one of such.

• Unfortunately, as is the case with other victims of human rights violation, the lack of awareness are amongst other factors inhibiting refugees, migrants, internally displaced persons and stateless persons to petition the Court as it concerns the violation of these rights by Member States.

• This accounts for the sad situation where the Court has not yet been seized of any complain of violations affecting the rights of refugees, asylum seekers, internally displaced persons, stateless persons and persons at risk of statelessness.

ECCJ’s established Unique Human Rights Jurisprudence

• Although the ECCJ became globally popular more as a human rights court than as an administrative tribunal, or Arbitration Tribunal or a Community Court of Justice, because most of the above judicial statistics on its achievements were human rights based and not on advancing its core mandate of regional economic integration.

• Nevertheless, the Court's success story lies in the body of human rights jurisprudence established from these cases, which reinforces the view that respect for human rights and rule of law provides a foundation for durable peace and security as well as sustainable development.

• For the past eighteen (18) years out of twenty of its operationalisation, the Court has charted a viable path for the protection of human rights in the region. It has brought renewed hope and optimism within the African human rights system, and position itself as a pivotal instrument in the continent's quest for regional economic integration, peace, security, unity, good governance and sustainable development.

• As the Court continues to grow and deliver more judgements, its impact as a mechanism for the advancement of human rights, good governance and the rule of law in the region has become apparent.

• Developing its own human rights Jurisprudence, the Court, applying Article 4 (g) of the 1993 Revised ECOWAS Treaty, carefully and boldly delineated its scope of human rights Jurisdiction based on certain guiding principles.

• First, the Court will not admit of any application which does not clearly indicate the alleged human rights violation. In Moussa Leo Keita’s case, the Court held that even if it were competent to adjudicate in cases of human rights violation, the applicant had not indicated any proof of a characteristic violation of a fundamental human right.

• Second, the Court will continue to uphold the supra-nationality of ECOWAS introduced by the Revised Treaty into its decision making for the realization of Community integration objectives. Accordingly, the court has been holding Member States accountable for their Treaty obligations and has refused to be constrained by the domestic laws of Member States, including national constitutions that are inconsistent with their Treaty obligations. The Court’s Jurisprudence on the supra-nationality of ECOWAS and the ECOWAS Court of Justice in Musa Saidykhan, SERAP, Mukhtar Ibrahim Aminu and Peter David, is anchored on Articles 9 (4), 12 (3) and 15 (4) of the 1993 Revised ECOWAS Treaty and cemented by the provisions of Articles 1-7 of the Supplementary Protocol Amending the Revised Treaty, especially, the new Article 9 on the new legal regime of the Community earlier discussed above.

• Third, triggering Article 10 (d) of the Supplementary Protocol, 2005, on access to the Community Court by individuals on application for relief for human rights violation, the Court’s emphatic Jurisprudence is that exhaustion of local remedies is NOT a requirement under the Community Law for human rights litigation. Neither is the lack of provision for it, a lacuna in the law that the Court can fill in, using its Judicial discretion.

• Fourth, notwithstanding the rationale behind the requirement of exhaustion of local remedies, the ECOWAS Court, in its Jurisprudence on the application of the conditions in Article 10 (d) (ii) of the 2005 Supplementary Protocol, has ruled the case of Valentine Ayika v. Republic of Liberia, admissible notwithstanding the fact it was alleged to be pending before the Supreme Court of a Member State (in this case Liberia). But in a related case of Mme Azieblevi Yovo et 31 Antres v. Societe Togo Telecom et Etat Togolais, the Court declined Jurisdiction on the ground that the matter was previously instituted before the OHADA Court , which is an international court within the condition of Article 10 (d) ii.

• Fifth, based on relevant authorities and the need to enhance access to the Community Court for Justice and human rights protection in the African context, the court’s Jurisprudence favours duly registered NGOs under national laws of ECOWAS Member States and enjoying observer status with ECOWAS institutions, as having the right to institute actions for human rights violations, especially public interest litigations involving group rights.

• Sixth, while clearly the Community Court does not have appellate Jurisdiction over the decisions of national courts, it has correctly emphasized its international character within the scope of its human rights Jurisdiction. Accordingly, it has declined Jurisdiction in an action by an individual against another individual for human rights violations; and has dismissed applications for human rights violations instituted by or against limited liability companies due to lack of Jurisdiction. The Court has rightly ruled that only Member States and Institutions of the Community can be sued before the court for human rights violations.

• Finally, for the progressive realization of the aims and objectives of the regional economic integration agenda for West Africa, the Community Court is mandated, inter alia, to adjudicate on any dispute relating to the interpretation, application and legality of the ECOWAS Community Law, and the failure by Member States to honour their obligations thereunder.

3.3 Trend of ECCJ Jurisprudence delineating the nature and Scope of its Human Rights Mandate

No Catalogue and Delimitation of human rights mandate

• The human rights mandate of the ECOWAS Court of Justice is still evolving and it is a subset of African human rights system. The ECOWAS human rights regime is developing at a fast pace and has very distinct features that have set it apart from other regional human rights systems. The most distinctive features are that it is fluid and indeterminate with no catalogue of rights of its own and that there is no requirement for exhaustion of local remedies as a condition for victims of human rights violations to access the court.

• The non-requirement of exhaustion of local remedies, contrary to the rule of customary International law, which may be referred to as the ECOWAS model, has proved to be very controversial and has attracted the curiosity of scholars. It has however proved to be very beneficial to the Court and victims of human rights violations, who now access the Court directly without the need to exhaust local remedies. This is mainly responsible for the increasing number of cases of human rights violations lodged before the Court.

No specific applicable Evidence Provided

• The ECOWAS Court of Justice does not have a specific text in respect of evidence. Although Article 38 of the Statute of the International Court of Justice, the texts of the Court do not have specific provisions in respect of the applicable rules of evidence with the exception of provisions in its Protocol and Rules on the production of documents and the summoning and examination of witnesses and experts (Articles 43-49). The Court has therefore allowed the practice of International Tribunals in respect of evidence.

Human Right Jurisdiction of the Court cannot be ousted by the national Constitutions/domestic Laws of member States/ Non-domestication of Treaties

• The court regards the constitution of a Member State as part of its law and is not obliged to refer to it as the Court is not concerned with the existing hierarchy of the national judicial order. The Court will therefore not allow a State to rely on its constitution to avoid its Treaty obligations, or obligations under legally binding treaty under International law. Therefore, concerning its human rights jurisdiction, the Court relies on its protocol and not on the constitutions of Member States.

• In Linda Gomez & Ors v. Republic of the Gambia Suit No. ECW/CCJ/APP/18/12), the Court held as follows;

“Thus, the human rights jurisdiction of this Court cannot be Ousted by the constitution or other domestic legislations of ECOWAS Member State. This Court is empowered by the Provisions of article 4(g) of the Revised Treaty of ECOWAS to apply the provisions of the African Charter on Human and Peoples’ Rights in determining the human rights cases that come before it. Article 19 of the Protocol on the Court as amended also empowers this Court to apply the provisions of Article 38 of the Statutes of the international Court of Justice. There is no doubt that these provisions have an international character and are applicable irrespective of the domestic legislations of Member States of ECOWAS”.

3.4 EFFECTIVENESS CRITERIA TO MEASURE THE PERFORMANCE OR SUCCESS OF THE ECCJ

Table 1: - Effectiveness Criteria for an Institutional Mechanism

S/N	CRITERIA	COMMENT
1	Utility	· Value (added to the subject matter) or usefulness (to target group): as opposed to outdatedness or outliving its usefulness.
2	Responsiveness	· To the conflicting and competing societal interests; human needs, problems and challenges facing humanity and societies.
3	Compliance Monitoring	· For improved human rights observance results when human rights law and policy are complied with. · Compliance reinforces the credibility of human rights protection efforts for sustainable development and the legal systems that support them.
4	Enforcement	· Legal action, where necessary to compel compliance and to impose sanctions as a consequence for violating the law or posing a threat to continental and national interest. · An effective enforcement strategy (Judicial, prosecutorial, administrative and non-litigious such as ADR) helps ensure fairness for those who willingly comply with legal and policy standards.
5	Evaluation	· Calls for periodic review and reform of Practice law and policy
6	Implementation	· Require strategies (Administrative, Budgetary, judicial, voluntary etc.) for discharging obligations, responsibilities or duties.

3.5 EFFECTIVENESS CRITERIA OF THE ECCJ'S JUDGEMENTS/DECISIONS

The question here is, what are the effectiveness criteria to measure the success or performance of an international court like the ECCJ?

FIGURE 2: - EFFECTIVENESS CRITERIA OF ECCJ AND OTHER REGIONAL COURTS

Is it about the number of cases filed, rulings, orders and judgements delivered or about compliance / implementation / enforcement and usage rates, or about impacting member state and society with its decisions? Experts have warned against the tendency “to equate international Court impact with compliance with Judgements usage rates or impact on State conduct”[114]. That a low aiming court, issuing minimalist remedies, may generate high level of compliance but have little impact on the State of the world. That using compliance as the only metric to measure the impact of international Courts, minimizes the other goals served by human rights litigation, such as incorporating the court into a "broader strategy of political mobilization”[115], or changed policies and practices in domestic Spheres, or deploying leverage to mount political pressure on governmental actors to comply with the decisions of these courts[116]. Hence “the real effectiveness test is not compliance alone, being just only one element or means of appreciating the domestic impact of international courts[117].

So far, only eleven of the fifteen member states namely Burkina Faso, Guinea, Ghana, Mali, Nigeria and Togo have appointed the required national authority for the enforcement of the ECCJ judgement, indicating a lack of preparedness to comply with the ECCJ's decisions[118]. It must be noted, however, that some States that have failed to designate a national authority, such as Niger, have still complied with some of the court’s decisions[119]. It is common knowledge that as of 2021, the rate of compliance with the judgements of the ECCJ “is embarrassingly low”, at 30% unsatisfactory rate of compliance[120]. Lower than that of 2018 data, wherein 13 out of 15 Member States complied in varying degrees with some judgements of the court. That only 35 out of 64 enforceable decisions delivered against ECOWAS Member States and institutions have been complied with since 2005. Representing about 55% compliance rate across West Africa, although not excellent, but indicates as of 2018, there had been more compliance than non-compliance with ECCJ's judgements[121].

The most well-known instance of compliance is the relatively speedy and full compliance of the Government of Niger Republic with the ECCJ's decisions in the famous case of Hadijatou Mani Koraou v. Republic of Niger[122] on the prohibition of modern slavery and the payment of ten million CFA francs as compensation to the victim by the government of Niger for the harm suffered. More recently, the Government of Gambia paid half of the sum that the ECCJ awarded to two journalists[123] who were unjustly detained and later killed by the former ruling military regime; though the amount came belatedly, a year and two months after the new government came into office. All the four Gambian Journalists won monetary compensation awards from the ECCJ in 2018, but were not paid until May 2019, when 25,000 dollars were eventually paid to each by the Gambian government.[124] The Government of Sierra Leone also paid 150,000 dollars of out of 250,000 USD awarded by the ECCJ to a wrongfully dismissed police officer, El-Tayyib Bah.[125]

The above captures the reality that poorer Member States may find it difficult to comply with Court orders to pay out large monetary sums to those who have Successfully litigated against them, and such compliance has a profound impact within the country. Similar notable compliance evidence by the government of Sierra Leone, in the right to education of pregnant girls[126]; by Burkina Faso in the political opposition banned to participate CDP case[127]; by Nigeria in the Jerry Ugokwu case[128]; where the government complied with the ECCJ's interim order not to seat a person who had been declared the winner of an election to Nigeria's federal legislature; and by Nigerian Government in the Alimu Akeem case[129], where a Nigerian soldier who had been detained without trial for two years was released from detention.

Table 2 below reveals Judicial Statistics of the ECCJ from 2003 to December 2023, with a total of 641 cases filed, 135 rulings and 400 Judgements delivered, and 26 decisions on revision, 52 orders as well as 6 advisory opinions issued by the ECCJ out of its 1,312 sessions, leaving only 165 cases pending.[130] Obviously, there was an increase in the number of cases filed from 55 for the year 2020, to 72 and 62 in 2021 and 2022 respectively. Judgements delivered also rose from 30 in 2020, to 41 each in 2021 and 2022. While year 2017 witnessed an the highest number of orders issued at total of 15, subsequent years witnessed a decrease to an average of 3 per year: - 2018 to 2022. While the first quarter of the year 2023 alone witnessed a sharp increase to 5 orders issued by the court[131].

The success attained by the court in 2023 when it reached another milestone with the delivery of 59 judgements, the highest in the history of the court and significantly higher than the previous milestones of 41 achieved consecutively in 2021 and 2022. The Court also succeeded in reducing the number of pending cases to 165 at the end of 2023 compared to 180 at the end of 2022. Obviously, this attests to handwork, commitment and teamwork between the judges and the support staff.

Table 2: -JUDICIAL STATISTICS OF THE COMMUNITY COURT OF JUSTICE, ECOWAS FROM 2003 TO DATE (24^THMARCH, 2023)

STATISTICS & YEAR	CASES FILED	RULINGS DELIVERED	JUDGMENTS DELIVERED	COURT SESSIONS	APPLICATION FOR REVISION/SUPP	DECISIONS ON REVISION	ORDERS	ADVISORY OPINIONS	PENDING CASES
2003	1	-	-	-	-	-		-	1
2004	1	-	1	5	-	-	1	-	1
2005	6	-	4	26	-	-	2	1	2
2006	21	1	3	31	-	-		-	21
2007	12	4	5	41	-	-		-	27
2008	12	3	5	26	1 JUDGMENT	-		1	29
2009	14	12	4	34	1 JUDGMENT	1		-	20
2010	17	11	8	71	1 JUDGMENT	1		-	23
2011	30	11	9	74	5 JUD, 1 RUL	1		-	40
2012	25	19	18	105	1 JUDGMENT	4	2	-	39
2013	27	15	11	71	1 JUDGMENT	3	1	1	41
2014	31	6	18	48	4 JUDGMENTS	2	-	-	52
2015	39	10	28	105	2 JUDGMENTS	3	4	1	59
2016	45	8	29	105	2 JUDGMENTS	3	6	1	63
2017	47	4	19	79	-	-	15	-	89
2018	61	2	31	85	2 JUDGMENTS	-	4	-	108
2019	52	10	38	96	3 JUDGMENTS	-	3	-	119
2020	55	7	30	101	12 JUDGMENTS	1	4	-	140
2021	72	7	41	127	4 JUDGMENTS	6	3	1	167
2022	62	3	41	79	3 JUDGMENTS	1	2	-	180
2023	11	2	59	4	-	1	5	-	165
TOTAL	641	135	400	1312	39	26	52	6	165

From table 2 above, Judicial statistics shows that the admirable performance of the Court, in delivering 30 judgements in 2020 slightly lower than 31 delivered in 2018 and 38 in 2019, despite the COVID-19 pandemic, is attributable to the implementation of the virtual session initiated by the Court under the Leadership of President Honourable Justice Edward Amoako Asante. The attendant advantages are in the areas of cost and energy savings for both lawyers and litigants who would otherwise have wasted several hours travelling to the seat of the Court for the Sessions held.

The above judicial statistics sounds very impressive in terms of performance or Success rate, but the ECCJ’s effectiveness should not be measured solely by the number of judgements, rulings and orders delivered. As such an approach comes with the risks of an unsustainable caseload and may dwarf other key elements of effectiveness, such as its impact on changed behaviour at the domestic level[132]. In fact, poor or non-compliance rate does not automatically translate to failure or lack of effectiveness of the Court. As recent finding rightly observed, international courts’ rulings with high compliance rates may be entirely ineffective, whereas those with low compliance rates may be quite effective, if they engender Some modification of State behaviour, as demonstrated in the following cases involving Nigeria: - the ECOWAS Court's rulings: - in the SERAP Environmental Rights case[133] contributed significantly to the government's increased attention to ending and cleaning up of oil pollution in the Niger Delta region; in SERAP Basic Education case[134], has had significant impact on Nigeria's National Human Rights Commission, by Shaping the content of its Draft National Human Rights Action Plan it finally produced.

3.6 CHALLENGES AND PROSPECTS

Key Problems / challenges facing the ECCJ.

The ECCJ has lamented on the key twin problems regarding its human rights mandate namely; lack of enforcement of its Judgments and no referral to it by member States. There are other constraints to access the Court.

a) Problem of Enforcement of ECCJ Decisions

The problem of lack of enforcement of ECCJ decisions by member States remains a recurring decimal and undermines the efficacy of the Court’s human rights mandate. There are ECOWAS Community texts that provide that the decision of the court are binding on Member States of ECOWAS and also give them the responsibility of implementing the decisions of the Court in accordance with their Rules of Civil Procedure. For instance Article 15(4) of the ECOWAS Revised Treaty provides that the “Judgments of the Court of Justice shall be binding on member States, the Institutions of the Community and on individuals and Corporate bodies”. See also Article 2(3) of supplementary Act A/SP. 13/02/12 on Sanctions against Member States that fail to honour their obligations to ECOWAS of 16 to 17 February, 2012. Furthermore Article 22(3) of Protocol A/PI/7/91 on the Community Court of Justice also provides that “Member States and Institutions of the Community shall take immediately all necessary measures to ensure execution of the decision of the Court”.

The protocol on the Court as amended also provides in Article 24(2) Execution of any decision of the Court shall be in the form of a writ of execution, which shall be submitted by the Registrar of the Court to the relevant Member State for execution according to the rules of civil procedure of that Member State. The National Courts of Member state therefore have the responsibility of implementing the decisions of the Community Court of Justice on behalf of the Member States. However, the decision of a High Court of Justice in Ghana in Chude Mbav. Ghana (ECW/CCJ/APP/01/12) shows that the issue has not been finally resolved. In the absence of domestication of ECOWAS texts by Ghana, the Ghanian High Court refuse to enforce the judgment of the ECOWAS Court of Justice in this particular case. (See Suit. No. HRCM/376/15).

b) Lack of Referral by Member States

Although there is provision in the amended Protocol for National Court of Member states to refer questions for interpretation of the Treaty, Protocol or other ECOWAS legal texts to the ECOWAS Court of Justice, no such referral has been received from any Member State. Although the court has since inception delivered six Advisory opinions.

c) Factors inhibiting Access to the Court

Notwithstanding the clear provision of Article 10 (d) (ii) of the Protocol on the Court as amended, on access rules to the court, there are other factors that inhibit access to the ECOWAS Court of Justice. The first constraint is the geographical location of the seat of the Court at Abuja Nigeria which makes it difficult for Community citizens to have unfettered access to the Court because of the huge distance to Abuja from most parts of the Community and transportation difficulties. Secondly, there is no provision in the Protocol or Rules of the Court for Legal Aid for indigent litigants. It is believed that the establishment of sub-Registries of the Court in Member States of the Community will facilitate greater access to the Court.

The creation of a Legal Aid Fund to provide legal aid for needy litigants has also been proposed. (See generally Report of the 10th year Anniversary of the ECCJ, held at Accra-Ghana, 21-25 Feb. 2011).

d) The principal difficulty in using the ECCJ lies not with the court itself, but with the enforcement of its judgements . Unless member states who fail to comply voluntarily with the judgements are compelled to do so by triggering the sanctioning power of the ECOWAS Authority under Article 77 of the Revised Treaty, and under the 2012 Supplementary Act on Sanctions Against Member States that fail to honour their obligations to ECOWAS , the confidence in the court will be eroded.

e) This leads us to the following challenges facing the court as recently identified and considered at the Court’s July, 2019 Judicial Retreat at Goshen City, near Abuja: -

a) the regrettable reduction in the composition of the Judges from seven to five and the unfortunate change in the tenure of the Judges from five years renewable as provided in the 1991 initial protocol of the Court to four years non-renewable, a development that is neither in the interest of the court nor the community citizens. No other regional court has this type of composition and tenure of Judges, and the court should continue to engage all stakeholders/relevant authorities to redress this anomaly in recognition of the peculiarity of the court as the principal Judicial Institution of the community .

b) the need to establish an appellate chamber of the court in line with the 2006 agreement by the ECOWAS Council of Ministers in order to avail litigants of their fundamental right of appeal. A right of appeal is indeed a fundamental right and it must be noted that the 2018 new organogram of the court reflects the intention for the creation of an appellate division of the court.

c) the need to address the controversial issue of amicus curiae which has led to some conflicting decisions because of the divergence in legal traditions in the ECOWAS region so as to bring the necessary cohesion in the court.

d) the need to articulate clear guidelines on reparation which has occasioned wide disparities in the quantum of awards in similar situations depending on particular panels of the court.

f) The growing body of relevant community legal and policy instruments between 2008 and 2020 on the phases of regional economic integration in West Africa, requiring URGENTLY, Judges and staff of this honourable court to bridge the knowledge gap and develop competencies through seminar/conference series and technical workshops on the contents and application of the relevant instruments for effective settlement of disputes and efficient administration of Justice.

For example, on the 19th December, 2008, the Authority of the Heads of State and Government adopted the following three supplementary Acts on: - Competition Rules ; Investment Rules ; and the establishment of a competition Authority .

With the Common External Tariff (CET) which took off in January 2015, member states will be paying a uniform tariff at all borders in the region. With this development, an improvement of the implementation of the ECOWAS Trade Liberalization Scheme (ETLS) can now also be safely expected. The CET is an important milestone on the road to the creation of a customs union for West Africa.

Also, the ECOWAS Common Investment Code and Policy were adopted on 18 December, 2018 and signed by member states in June 2019.

Finally, on 29th June, 2019, the Authority of ECOWAS Heads of States and Governments adopted the ECO single currency to be issued in January, 2020 but shifted to 2022 due to operational reasons. This aims at boosting cross border trade and commerce among member states and community citizens .

The above raises another fundamental challenge/question: - is ECOWAS Court of Justice a Trade and Investment Tribunal? The reason being that, the community court is little known outside the human rights community. This is odd, given ECOWAS’s broad economic integration objectives and programmes since 1975 and the court’s powers since 2001. In fact, the ECCJ has the potential of serving as a forum/tribunal for the settlement of at least some disputes between foreign investors and host member states . In addition to disputes arising under the community law, the ECCJ has jurisdiction on any matter provided for in an agreement where the parties provide that the court shall settle disputes arising from the agreement . The ECCJ’s power to act as the Community Arbitration Tribunal , is yet to be functionally activated or utilized. Nevertheless, by means of an appropriately worded forum selection clause, the ECCJ can also serve as a forum for the settlement of investor contractual disputes with host states.

Moreover, the ECCJ is also the default mechanism for the settlement of investor-state disputes under the ECOWAS Supplementary Act on investments adopted in 2008 pursuant to its investment competence.

3.7 ADDRESSING THE CHALLENGES OF ENFORCEMENT/COMPLIANCE WITH ECCJ’S JUDGEMENTS

The challenges of judgement enforcement or compliance have been aptly summarized as: - failure to appoint competent national authorities by nine Member States for receiving, verifying and processing the Writ of Execution for the ECCJ and for rendering returns to the Courts[135]; lack of domestic legislation for the enforcement of the ECCJ judgements by national courts[136]; failure to demonsticate the Revised Treaty of ECOWAS, 1993 and the Protocol on the Court by Member States[137], to avoid the negative impact of non-domestication recently highlighted by the decision of the Accra-based High Court of Ghana in Chude Mba v. Republic of Ghana[138]; non-involvement of ECOWAS political authorities in the implementation monitoring of the ECCJ's judgements as has been practised at to the African Union and European Union levels[139]; and ECCJ plays no role in the enforcement of its judgements[140] as is the practice with the Inter-American Court of Human Rights earlier observed[141]. These challenges necessarily constitute a huge handicap in the optimal performance of the ECCJ, and they apparently seek to undermine the credibility in the effectiveness and added value of the ECCJ to the African human rights system through its growing unique human rights jurisprudence in west Africa[142].

Addressing the above challenges the following suggestions are made: -

· Member States to ensure immediate and effective implementation of decisions rendered by the ECCJ to ensure compliance with their treaty obligations under the Community Legal order, earlier outlined;

· Member States need to develop initiatives to increase their capacity to effectively execute ECCJ’s decisions, including cooperation with other ECOWAS Governance Architecture platform members to offer technical assistance where necessary;

· Relevant stakeholders, including the academia, need to adopt a holistic approach to assessing compliance with the ECCJ's decisions, taking into account the different changes in the overall governance framework in the Member States concerned;

· The ECCJ need to draw up an action plan with timelines and deliverable outputs in Liaising with the ECOWAS Commission and Parliament for engagement with national authorities on the implementation of its judgements, decisions and orders; it is imperative for the ECCJ to clearly determine its role in deciding the specificity of its judgements and the extent to which it will interact with other actors to ensure implementation of its decisions;

· ECCJ needs to develop a more effective mechanism of tracking and monitoring implementation of its decisions, including continuing dialogue with the Member States’ Attorneys General and Chief Judges, which could help in hastening implementation of its judgements as Supranational decisions, not foreign judgements;

· National Bar Associations, Law faculties/schools and national legal research institutes need to mobilise resources to promote continuing legal education and Judicial education On the ECOWAS Community law and practice as well as the Jurisprudence of the Court;

· ECCJ to encourage national human rights institutions and other national legal research institutes to make relevant submissions as amicus curiae; to help follow up on the implementation of the Court's decisions; to disseminate information about the Court's Jurisprudence; and to ensure harmonization between national human rights strategies and the work of the Court;

· Finally, in collaboration with relevant stakeholders, ECCJ may wish to develop an implementation guidelines of ECCJ judgements for national judiciaries and bar associations for possible consideration in addressing some of the challenges of general implementation of ECCJ's decisions at domestic level.

CONCLUSIONS AND WAY FORWARD

It is evident from the above analysis that bright prospects exist in litigating. Climate as a public rights or interests before the ECOWAS Community Court of Justice.

To tap on the existing prospects however, the following hurdles need to be overcome for public rights litigation to succeed beyond the ‘success’ and ‘immediate’impact stages to that of ‘systemic’ or ‘transformation’:- ﬁrstly, groups whose rights are violated must be able to identify and articulate their rights claims and voice them in the legal system or have their rights asserted on their behalf; secondly, judicial bodies must be responsive to public rights claims that are voiced in the sense of accepting them as matters within their jurisdiction; and thirdly, the judges must be capable of ﬁnding adequate legal means to address the public rights claims and ﬁnd effective remedies.

Furthermore, for progressive public rights Judgments to have a social or political impact, they must be authentative, in the sense that they are accepted, compiled with and implemented through legislative and executive / administrative action, translated into systemic change through social policy and political practice. The outcome of each stage in turn depends on a complex interaction between different factors such as the following:- (a) those whose rights are violated (vulnerable groups):- their ability to mobilize their own resources and artiﬁculate them; (b) and the interaction between them and public interest litigators (those taking the cases to Court, be they local, national or international legal services organizations and networks[143], law schools’ legal clinics, individual lawyers acting on pro-bono or a contingency- fee basis or public institutions.[144]

Lawyers in the West African sub-region have a vital role to play in the establishment and sustenance of a verile imperative for the lawyers to be knowledgeable and well informed about the Community texts and rules of Procedures of the ECOWAS Court of Justice. It is only a knowledgeable and well informed lawyer on Community texts that can play an effective role in the integration process of West Africa.

By virtue of the cumulative effect of Artciles 9 and 10 of the 2005 Supplementary Protocol (A/SP.1/01/05) on expanded jurisdiction and individual access to the Court for justice; Article 15(3) and 3(i) of the Revised ECOWAS Treaty on the independence of the Court/Judges, the ECOWAS Court must be bold and purposive in its interpretation of treaties and other legal/ human rights standard for effective protection of the rights of vulnerable groups in the sub- region against violations by States, individuals or groups.

Most importantly in this regard is the binding nature, ﬁnality and enforceability of the Court’s Judgment in the sub-region. While Article 15(4) of the ECOWAS Revised Treaty makes the judgment of the Court binding on Member States, institutions of the Community, individuals and corporate bodies, Article 76(2) provided for the ﬁnality of the decision of the Community Court of Justice (A/P1/7/91) provided that decisions of the court shall be ﬁnal and immediately enforceable. Furthermore, Article 77(1) of the Revised ECOWAS Treaty provides for the imposition of sanctions by the ECOWAS Authority against a Member State that fails to fulﬁll its obligations to the Community.[145]

In conclusion, it is evident from the above that, economic integration cannot be effectively achieved without some measure of supra-nationalism. The experience of the ECOWAS region, though not perfect, confirms that unless Member States give up some parts of their national sovereignty and empower regional integration institutions to make binding decisions on their behalf, and implement them at national level, little progress can be made.

For effective delivery of Justice and realization of Community economic integration objectives, it is very imperative for Member States to demonstrate greater political will in the enforcement of the court’s judgements as required by the Community law. Fast-tracking the creation of the appellate chamber of the court will boost community citizen’s confidence in the realization of their right to appeal against any judgement by the court they are not satisfied about.

The ECOWAS court may borrow a leaf from the 2013 Study Report on the Right to Reparation in the African Human Rights system, containing some basic principles and guidelines for the ECOWAS Court of Justice to address the earlier mentioned wide disparities in the quantum of awards in similar situations.

To bring the necessary cohesion in the ECCJ on Amicus curiae, I wish to recommend resort to the experience of the inter-American Court of Human Rights on Liberal admission of such briefs in its proceedings.

References

[1] Protocol A/P/1/7/91 on the Community Court of Justice, July 6 of 1991, entered into force on 5 November 1996.

[2] Ibid, Article 9 (2-3).

[3] Ibid, Article 10 (1).

[4] Revised ECOWAS Treaty, 1993, Article 15 (4)

[5] Ibid, Articles 6 and 15 (2).

[6] Ladan, M.T. (2021): - ECOWAS Community Court of Justice as a Supranational Court and Engine of Regional Integration in West Africa: - Achievements, Challenges and Prospects. Being a Paper Presented at the ECOWAS Court of Justice International Conference on 20 Years of ECCJ:- Achievements, Challenges and Prospects. Organized by the ECCJ, Abuja. 22 - 25 November 2021, at Lomé, Togo.

[7] Article 4 amending Article 10 of the 1991 Protocol on the Court, op. cit.

[8] Ladan, M.T. (2021), op. cit.

[9] See Ladan, M. T. (2023), The Impacts of ------, op. cit.

[10] See UNEP, Nairobi (2024) A Global -----, op. cit.

[11] See Maria, A. T. et al (2024), op. cit.

[12] Ladan, M. T. (2024): - Recent Trend on The Right to a Clean, Safe and Healthy Environment, Climate Protection, Litigation and Justice: - With Particular Reference to Nigeria. A presentation made at a 3-day National Summit on Climate Change in Nigeria. Organized by the Citizens Well-Being Intervention, UK et al. 26 -29^th August 2024, at Transcorp Hilton Hotel, Abuja

[13] See Ladan M.T. (2010): - Introduction to jurisprudence: - Classical and Islamic. Malthouse Press Ltd, Lagos, Nigeria, Cap. 10, at p.149.

[14] Is deﬁned to include the Revised ECOWAS Treaty 91975/1993); Protocols, Supplementary Act, Regulations and Directives as well as judicial decisions of the ECOWAS Community Court of Justice. See Ladan M.T., (2010): - Introduction to ECOWAS Community Law and Practice. ABU Press Ltd, Zaria, Nigeria.

[15] See Article 1 of the ECOWAS Protocol A/P.3/5/82 Relating to the Deﬁnition of Community Citizen as “any person who is a national by descent of a Member State of the Community; or any person who is a national by birth of any of the Member States either of whose parents is a national by sub-paragraph(1) above provided that such a person on attaining the age of 21 decides to take up the nationality of the Member State.”

[16] Public Law is that part of the law concerned primarily with the functioning of the State/Government and its relations to the citizens, e.g. constitutional law, public international law, environmental and natural resources law. See S. Inchi, The Nigeria Law Dictionary, 1st edn. Tamaza Publishing Co., Zaria, Nigeria, at p.264.

[17] See Articles 19 to 24 of the African Charter on Human and Peoples’ Rights (ACHPR). See also the 1986 UN Declaration on the Right to Development.

[18] Ibid

[19] See Ladan M.T., (2008): ‘The Limits of Legal and Enforcement/ Regulatory Frameworks in Consumer Protection against Counterfeit and Pirated Products: The Nigerian Experience’, in CALS Review of Nigerian Law and Practice. Vol. 2(1) June 2008, at pp.1-33. Centre for African Legal Studies- http://www.legalstudies.com/calsreview/accessed

on 6/16/2008.

[20] Vulnerable groups such as women, children, minorities, displaced persons (IDPs and Refugees), migrants, disabled persons, Persons Living with HIV/AIDS etc:- have their rights guaranteed, for example, under the UN CEDAW; UN Convention on the Rights of the Child; OAU Charter on the Rights and welfare of the Child; AU Protocol on the Rights of the women in Africa; African Charter on Human and Peoples’ Rights Cap. A.9 LFN 2004;

The Nigerian Child Rights Act, 2003 etc

[21] See S. Gloppen (20050: ‘Public Interest Litigation, Social Rights and Social Policy’ in world Bank Conference on new frontiers of Social Policy:- Development in a Globalizing World. Held at Arusha, Tanzania, December 12-15, 2005 at pp. 3-6.

[22] Ibid

[23] See M. Kirby (2011) : - ‘Deconstructing the Law’s Hostility to Public Interest Litigation’, in Law Quarterly Review No. 2529, pp. 1-49 at p.1.

[24] Gloppen, op. cit, at p.3

[25] Hence the main components of the Public Rights Litigation process are:- (a) public rights cases brought to court;(b) cases accepted/admitted by the courts; (c) Judgments giving effect to social-economic-environmental rights; (d) transformation effect (impact on public rights/inclusion of vulnerable groups.)

[26] Ladan, M. T. (2017): - The right to a clean and healthy environment and obligation of the State’, in Ladan, M. T., Sustainable Development Goals, Climate Change and Extractive Resource Management in Africa. Table 1, SDGs related to human rights and Table 2, the nexus between human rights, security and Climate Change, at pp. 23-76, and 206-210. Published by Ahmadu Bello University Press Ltd, Zaria, Nigeria.

[27] UNEP, Nairobi, Kenya (2002): - Report оп Law and practice relating to Access to information, public participation and Access to Justice in Environmental matters: - Africa, Asia-Pacific, Latin America-Caribbean regions. pp. 1-86.

[28] Ladan, M. T. (2023): - The impacts of Triple planetary Crisis of Climate Change, Pollution and Biodiversity loss on human rights under international law. A Keynote presentation made at the University of Oslo, Faculty of Law, organized by the Norwegian Centre for Human Rights, 26-27 October 2023.

[29] Ladan, M. T. (2012): - Trends in Environmental Law and Access to justice Nigeria. Published by Lambert Academic Publishing Co., Saarbrucken, Germany, pp. 1-441.

[30] UN-OHCHR, UNEP and UNDP (2022): - What is the Right to a Healthy Environment? Information Note, pp. 1-21.

[31] Ibid.

[32] While Climate Justice has no fixed definition, the Summary for Policy Makers of Working Group II of the Intergovernmental Panel on Climate Change (IPCC) developed as part of its Sixth Assessment Report states that , Climate Justice "generally includes three principles: - distributive justice which refers to the allocation of burdens and benefits among individuals, nations and generations; procedural Justice which refers to who decides and participate in decision-making; and recognition which entails basic respect and robust engagement with, and fair consideration of diverse cultures and perspectives.

[33] Ladan, M. T. (2012): - "Addressing the plight of Environmental Migrants through African Union and ECOWAS Community Laws: A case for Climate Justice", in Trend in Environmental Law and Access to Justice in Nigeria, (2012), op cit., at pp. 129-156.

[34] See ECOWAS Commission, Abuja (2022): - ECOWAS Regional Climate Strategy and Action Plans, 2022-2030; African Union, Addis Ababa, AU Climate Strategy, 2022, and Federal Government of Nigeria, Abuja, (2021): - National Climate -Change Policy, 2021.

[35] UNDP, New York, (2022): - Environmental Justice, Securing our Right to a Clean, Healthy and Sustainable Environment, Technical paper, at pp. 13-16.

[36] Global Witness (2021): - What is Climate Justice? www.globalwitness.org 2 December, 12. 2021.

[37] Ibid.

[38] Mary Robinson Foundation, Climate Justice, et.al, (2011): - The Geography of Climate Justice, an introductory resource, pp. 1-10. www.ria.ie/Climate justice.aspx.

[39] Ibid.

[40] Ibid.

[41] UNEP, Nairobi (2024):- A Global foresight Report on Planetary health and human wellbeing, pp.1-108.

[42] Ibid.

[43] Global Witness (2021) op cit.

[44] UNEP (2024), op cit.

[45] Ibid.

[46] UNDP (2022) op cit.

[47] UNEP (2002), op cit.

[48] Ibid.

[49] Ladan, M. T. (2023), op cit.

[50] Ladan, M. T. (2017), op. cit.

[51] Muyiwa, A (2023): - A human rights approach to Climate Litigation before the ECOWAS Court. In Environmental Law Review. SAGE Publications, 4 October 2023.

[52] Maria, A. T. and Margaret, B (2024): - Climate Change in the Courts:- A 2024 Retrospective, Sabin Centre for Climate change Law, Columbia Law School, Columbia University, New York USA, pp. 1-22.

[53] UNEP and Columbia Law School (2023): - Global Climate Litigation Report, Status Review (2023), (eds) Michael, B and Maria, A. T. (July 2023) PP. 1-57.

[54] Katelyn, H, Maria, A. T. and Michael B. G. (2023): - Status Report on Principles of International and Human Rights Law Relevant to Climate Change. Sabin Centre for Climate Change Law, Columbia Law School, Columbia University, New York, USA, pp.1-77

[55] Ibid

[56] Maria, A. T. and Margaret B. (2024) op cit.

[57] Ibid.

[58] UNEP and Columbia Law School (2023) op. cit.

[59] Katelyn H et.al (2023), op. cit.

[60] Maria, A.T., Lorena, Z, Marlies, H., Natalia, U., and Pedro, C.G. (2023): - Just Transition Litigation Cases Amid the Energy Transition. Sabin centre for Climate Change Law, Columbia Law School, USA, pp. 1-60. 36.

[61] UN-OHCHR, UNEP and UNDP (2022) op cit.

[62] Ladan, M.T. (2023): - The Climate Change phenomenon: - policies and legal framework. A paper presented at a two-day hybrid Capacity building Workshop on Rule of Law and Climate Justice. Organized by The Attorney-General Alliance Africa (AGA), NIALS, Abuja and NESREA, Abuja, at the Ladi Kwali Hall, Sheraton Hotel (Abuja Continental Hotel, Abuja. 27-28 March 2023; pp. 1-42.

[63] Ladan, M. T. (2017) op cit.

[64] Ladan, M. T. (2023) The Impacts of Triple planetary crisis, op. cit.

[65] Ibid.

[66] Ladan, M. T. (2023): -The climate change Phenomenon …….., op. cit.

[67] Ladan, M. T., (2022): - A Review of Nigeria's 2021 Climate Change Act: - Potential for increased Climate Litigation. In IUCN Newsletter, 28 March 2022, p.1-12

[68] Ibid.

[69] UNDP (2022) op.cit.

[70] Ladan, M. T. (2022) IUCN, op. cit.

[71] Ibid

[72] Ibid

[73] Ladan, M. T. (2023) The Climate Change……. , op. cit.

[74] Ibid

[75] Maria A. T. et al (2024), op. cit. .

[76] Muyiwa (2023) op. cit.

[77] Ibid

[78] Maria A.T (2024): - Climate Litigation in the Global South. Sabin Centre for Climate Change Law, Columbia Law School, USA. pp.1-128.

[79] Ibid.

[80] Ladan, M. T. (2023): - The impacts of Triple Planetary crisis, op. cit.

[81] Ibid.

[82] Hyuk, N. J. (2023): - Africa must set the Timing for its Energy Transition…….. In Africa Energy Chamber, Johannesburg, South Africa, Newsletter, December 12, 2023. www.energychamber.org.

[83] Ibid

[84] Yusra, S. and Marie, F. (2023): - Climate Change Litigation before the African Human Rights System: - Prospects and Pitfalls. In Journal of Human Rights Practice, vol.16, Issue 1, February 2024, pp. 146-159. Offord Academic.

[85] Ladan, M. T. (2012), op. cit.

[86] Katelyn, H., et al (2023) op. cit.

[87] Ibid.

[88] Yusra, et al (2023) op. cit.

[89] Ibid

[90] See AFOLABI OLAJIDE v. NIGERIA (2004 - 2009) CCJ ELR 1, CHIEF FRANK UKOR v. RACHAD LALEYE (2004 - 2009) CCJ ELR 19, HON. JERRY UGOKWE v. NIGERIA (2004 - 2009) CCJ ELR 37, ALHAJI HAMMANI TIDJANI v. NIGERIA (2004 - 2009) CCJ ELR 77

PROF ETIM MOSES ESSIEN v. THE GAMBIA (2004 - 2009) CCJ ELR 95, LINAS INTERNATIONAL NIG. LTD v. MALI (2004 - 2009) CCJ ELR 271,

STARCREST INVESTMENT LTD v. PRESIDENT, ECOWAS COMMISSION (2010) CCJ LR (PT. 3)99

[91] eg: REQUEST FOR ADVISORY OPINION (2004 - 2009) CCJ ELR 55

Request for Advisory Opinion from Executive Secretary of ECOWAS relating to Article 23 (11) of the Rules of Procedure of the Community Parliament and the provisions of Article 7 (2) and 14 (2) (f) of the Protocol on the Community Parliament.

REQUEST FOR ADVISORY OPINION (2004 - 2009) CCJ ELR 201

Request by the President of ECOWAS Commission on the renewal of the Tenure of the Director General and Deputy Director General of GIABA

[92] Article 9 (8) of the Protocol of the Court as amended by Supplementary Protocol A/SP.1/01/05 Article 7 (3) (g) of the 1993 ECOWAS Revised Treaty.

[93] Article 22 (1) (now renumbered Article 23 (1) of Protocol A/P1/7/91 as amended by Supplementary Protocol A/SP.1/01/05.

[94] Article 9 (1) (f) of the 1991 Protocol as amended by the 2005 Supplementary Protocol.

[95] The Series of cases between TOKUNBO LIJADU–OYEMADE v. ECOWAS COMMISSION, (2008) CCJ LR (PT 1) 50,

EXECUTIVE SECRETARY ECOWAS v. OYEMADE (2008) CCJ LR (PT. 1) 116

EDOH KOKOU v. ECOWAS COMMISSION,

HARUNA WARKANI & Ors v. ECOWAS COMMISSION,

FOLAMI & Anor v. ECOWAS PARLIAMENT (2010) CCJ LR (PT. 3) 50

[96] AMOUZOU HENRY v. REPUBLIC OF COTE D’IVOIRE (2004 - 2009) CCJ ELR 281 at 297 – 298 REGISTERED TRUSTEES OF THE SOCIO-ECONOMIC RIGHTS AND ACCOUNTABILITY PROJECT (SERAP) v. PRESIDENT, FEDERAL REPUBLIC OF NIGERIA – Ruling of paragraph 63

HADIJATOU MANI KORAOU v. REPUBLIC OF NIGER

[97] The new Article 9 as amended by Supplementary Protocol A/SP.1/01/05,

1. The Court has competence to adjudicate on any dispute relating to the following:

a) the interpretation and application of the Treaty, Conventions and Protocols of the Community.

b) the interpretation and application of the regulations, directives, decisions and other subsidiary legal instruments adopted by ECOWAS.

c) the legality of regulations, directives, decisions and other subsidiary legal instruments adopted by ECOWAS.

d) the failure by Member States to honour their obligations under the Treaty, Conven tions and Protocols, regulations, directives or decisions of ECOWAS.

e) the provisions of the Treaty, Conventions and Protocols, regulations, directives or decisions of ECOWAS Member States.

f) the Community and its ofﬁcials; and

g) the action for damages against a Community institution or an ofﬁcial of the Community for any action or omission in the exercise of ofﬁcial functions.

2. The Court shall have the power to determine any non-contractual liability of the Community and may order the Community to pay damages or make reparation for ofﬁcial acts or omissions of any Community institution or Community ofﬁcials in the performance of ofﬁcial duties or functions.

3. Any action by or against a Community Institution or any Member of the Community shall be statute barred after three (3) years from the date when the right of action arose.

4. The Court has jurisdiction to determine cases of violation of human rights that occur in any Member State.

5. Pending the establishment of the Arbitration Tribunal provided for under Article 16 of the Treaty, the Court shall have power to act as arbitrator for the purpose of Article 16 of the Treaty.

6. The Court shall have jurisdiction over any matter provided for in an agreement where the parties provide that the Court shall settle disputes arising from the agreement.

7. The Court shall have all the powers conferred upon it by the provisions of this Protocol as well as any other powers that may be conferred by subsequent Protocols and Decisions of the Community.

8. The Authority of Heads of State and Government shall have the power to grant the Court the power to adjudicate on any speciﬁc dispute that it may refer to the Court other than those speciﬁed in this Article.

[98] Article 10. Access to the Court

“Access to the Court is open to the following:

a) Member States, and unless otherwise provided in a Protocol, the Executive Secretary, where action is brought for failure by a Member State to fulﬁll an obligation;

b) Member States, the Council of Ministers and the Executive Secretary in proceeding for the determination of the legality of an action in relation to any community text;

c) Individuals and corporate bodies in proceedings for the determination of an act or inaction of a Community ofﬁcial which violates the rights of the individuals or corporate bodies;

d) d. Individuals on application for relief for violation of their human rights; the submission of application for which shall:

i. Not be anonymous; nor

ii. Be made whilst the same matter has been instituted before another International Court for adjudication;

e) Staff of any Community institution, after the Staff Member has exhausted all appeal processes available to the ofﬁcer under the ECOWAS Staff Rules and Regulations;

f) Where in any action before a Court of a Member State, an issue arises as to the interpretation of a provision of the Treaty, or the other Protocols or Regulations, the national court may on its own or at the request of any of the parties to the action refer the issue to the Court for interpretation.”

[99] ACCESS BY INDIVIDUALS TO REGIONAL COURTS

1. EACJ : East African Court. Article 30(1) of the Treaty for the establishment of the East African Community (as amended on the 14th of December, 2006 and 20th of August, 2007.

[100] PROFESSOR ETIM MOSES ESSIEN v. REPUBLIC OF THE GAMBIA ECW/CCJ/APP/04/07 Ruling of 14^th March 2007;

HADIJATOU MANI KORAOU v. REPUBLIC OF NIGER ECW/CCJ/APP/08/08; MUSA SAIDYKHAN v. REPUBLIC OF THE GAMBIA ECW/CCJ/APP/11/07

[101] MUSA SAIDYKHAN v. REPUBLIC OF THE GAMBIA (Supra) OCEAN KING NIGERIA LIMITED v. REPUBLIC OF SENEGAL (Supra)

FEMI FALANA v. REPUBLIC OF BENIN ECW/CCJ/APP/10/07 – paragraph 22 & 23

[102] HADIJATOU MANI KORAOU v. REPUBLIC OF NIGER (Supra)

[103] --- Ruling of 19th December, 2011

[104] Suit No. ECW/CCJ/APP/08/11, Judgment No. ECW/CCJ/JUG/04/12 of 31st January, 2012.

[105] MUSA SAIDYKHAN v. REPUBLIC OF THE GAMBIA ECW/CCJ/APP/11/07 see paragraphs 48, 49 & 50 of Ruling of 30th June, 2009.

[106] REGISTERED TRUSTEES OF THE SOCIO-ECONOMIC RIGHTS AND ACCOUNTABILITY PROJECT (SERAP) v. FEDERAL REPUBLIC OF NIGERIA & UBEC ECW/CCJ/APP/08/08, Ruling of 27th October 2009 paragraph 18, 19 & 20.

MOUKHTAR IBRAHIM AMINU v. GOVERNMENT OF JIGAWA STATE, ECW/CCJ/APP/02/11 Ruling of 7^th July, 2011 paragraphs 42 – 45.

[107] PETER DAVID v. AMBASSADOR RALPH UWECHUE ECW/CCJ/APP/04/09 Ruling of 11 June, 2010 paragraph 40 – 41.

[108] PETER DAVID v. AMBASSADOR RALPH UWECHUE

[109] THE REGISTERED TRUSTEES OF THE SOCIO-ECONOMIC RIGHTS AND ACCOUNTABILITY PROJECT (SERAP) v. PRESIDENT, FEDERAL REPUBLIC OF NIGERIA ECW/CCJ/APP/08/09 Ruling of 10^th December, 2010.

STARCREST INVESTMENT LTD v. PRESIDENT, ECOWAS COMMISSION ECW/CCJ/APP/01/08 Judgment of 8^th July, 2011

OCEAN KING NIG LTD v. SENEGAL ECW/CCJ/APP/05/08 Judgment of 8 July 2011.

[110] Suit No. ECW/CCJ/APP/02/05; Judgment No. ECW/CCJ/JUD/03/05 (07/10/05).

[111] See SUIT NO. ECW/CCJ/APP/04/09 PETER DAVID v. AMBASSADOR RALPH UWECHUE, SUIT NO. ECW/CCJ/APP/02/06 QUDUS GBOLAHAN FOLAMI & ANOR v. COMMUNITY PARLIAMENT, SUIT NO. ECW/CCJ/APP/01/07 DR EMMANUEL AKPO v. G77 SOUTH HEALTH CARE DELIVERY PROGRAMME & ANOR. HON DR. JERRY UGOKWE v. FEDERAL REPUBLIC OF NIGERIA (2004 - 2009) CCJ ELR 37 INCORPORATED TRUSTEES OF MIYETTI ALLAH KAUTAL HORE SOCIO- CULTURAL ASSOCIATION v. FEDERAL REPUBLIC OF NIGERIA ECW/CCJ/APP/----/------ Ruling of 13th July, 2011 paragraph 38

[112] paragraph 55-58 of the Ruling of 10th December, 2010

[113] paragraph 61-62 of the Ruling of 10th December 2010

[114] Yuval, S. (2012) : - Assessing the Effectiveness of International Courts. First Edition, Oxford University Press, p.117

[115] Ibid

[116] Laurence Helfer and E, Voeten (2014) : - Inter-national Courts as Agents of Legal Change: - Evidence from LGBT Rights in Europe, 68 Int'L Org. 77.

[117] Ibid.

[118] Ladan, M.T. (2021) Op.cit

[119] Ibid.

[120] Femi Falana (2021): - ECOWAS Court: - Achievements, Challenges and Prospects. International Conference of the ECCJ, Lomé, Togo, 22- 24 November 2021.

[121] Tony, A.M (2018) :- Enforcement of the Judgement of the ECOWAS Court of Justice. NILDs Journal of Law Review, Vol.1, No.1 August 2018, at pp. 71-96.

[122] Suit No. ECW/CCJ/APP/08/08, October 27, 2008.

[123] See Saidykhan v. The Republic of the Gambia (2010) CCJELR 139

[124] Manneh v. The Republic of Gambia, No. ECW/CCJ/JUD/03/08, June 5, 2008.

[125] El-Tayyib Bah v. Republic of Sierra Leone, No. ECW/CCJ/JUD/11/15, Decision, May 4, 2015.

[126] Women Against Violence and Exploitation in Society v. the Republic of Sierra Leone, No. ECW / CCT/ JUD / 37 / 19, December 12, 2019

[127] Congres pour la Démocratie et le Progrès v. Burkina Faso, No. ECW/CCJ/JUD/16/15, July 13, 2015.

[128] No. ECW/CCT/JUD/03/05, October 7, 2005.

[129] Case No. ECW/CCJ/ JUD/01/14, January 28, 2014.

[130] Source: ECCJ, Abuja (2023):- Judicial Statistics from 2005 to 24 March 2023, as at 24th March 2023.

[131] Ibid.

[132] Ladan, M.T. (2021), op. cit.

[133] SERAP V. Federal Republic of Nigeria, No. ECW/ CCJ/JUD/18/12, December 14, 2012. Also see Murray, et al (2017): - Monitoring Implementation of the decisions and judgements of the African Commission and Court on Human and Peoples Rights. In Vol.1, African Human Rights Year book, 150-166.

[134] SERAP & Federal Republic of Nigeria and UBEC, No. ECW/CCJ/JUD/07/10, Nov. 30, 2010.

[135] Tony (2018), op. cit.

[136] Ibid

[137] Ladan, M. T. (2021)

[138] Suit No. HRCM/376/15 (2-02-2016).

[139] Open Society Initiative, (2010) : - From Judgement to Justice: - Implementing International and Regional Human Rights Decisions. Open Society Foundation, New York, USA.

[140] Tony, op cit.

[141] Inter American Court of Human Rights (2023): - Learn About the Monitoring Compliance with Judgement. San Jose, Costa Rica.

[142] Ladan, M.T. (2022), ECOWAS Integration Model. A Presentation Made at the ECOWAS Court of Justice Conference, held at Cape Verde, Praia, 9-12 May, 2022.

[143] Legal service organizations work to achieve equal Justices for poor aand vulnerable people through community education, advice, legal counsel and representation for individuals and groups, systemic advocacy through litigation and lobbying and/or training for civil society organizations and government ofﬁcials. (such as SERAP, SERAC, HURILAWS, CISLAC etc in Nigeria).

[144] In some countries public rights/interest litigation is undertaken by public institutions such as National Human Rights Commission, Legal Aid Councils, Ombudsmen (Public Complaints commission), or like in Brazil, by public prosecutors.

[145] See Ladan M.T., (2011):- Accessing the ECOWAS Court Through Strategies for the Establishment of Registry Ofﬁces:- Legal Justiﬁcation, Form and Modalities of their Functioning. A presentation made at an International Conference on the theme:- Strategies for the Strengthening of the Effectiveness of the ECOWAS Court of Justice. Organized by the ECOWAS Court of Justice, Abuja. Venue:- Ange Hill, East Legon Hotel, Accra, Ghana. Date:- 21-25 February, 2011.

THE PROSPECT OF CLIMATE LITIGATION BEFORE THE ECOWAS COURT OF JUSTICE AS A TOOL FOR ENFORCING THE RIGHT TO A HEALTHY ENVIRONMENT TO ACHIEVE CLIMATE JUSTICE IN WEST AFRICA

Prof. M. T. Ladan

Monday, January 20, 2025

RESEARCH WORKING PAPER SERIES NO.1, JANUARY 2025

S/N

CRITERIA

COMMENT

1

Utility

· Value (added to the subject matter) or usefulness (to target group): as opposed to outdatedness or outliving its usefulness.

2

Responsiveness

· To the conflicting and competing societal interests; human needs, problems and challenges facing humanity and societies.

3

Compliance Monitoring

· For improved human rights observance results when human rights law and policy are complied with.

· Compliance reinforces the credibility of human rights protection efforts for sustainable development and the legal systems that support them.

4

Enforcement

· Legal action, where necessary to compel compliance and to impose sanctions as a consequence for violating the law or posing a threat to continental and national interest.

· An effective enforcement strategy (Judicial, prosecutorial, administrative and non-litigious such as ADR) helps ensure fairness for those who willingly comply with legal and policy standards.

5

Evaluation

· Calls for periodic review and reform of Practice law and policy

6

Implementation

· Require strategies (Administrative, Budgetary, judicial, voluntary etc.) for discharging obligations, responsibilities or duties.

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