ECOWAS Community Court Judgment Against the Gambia: A Step Forward and a Step Backward

 

By David Abraham, a second-year law student at the University of The Gambia with a strong passion for the development of Law and Democracy as two inseparable constructs that are key to the development of Africa.

 

Abstract

 

The 14th February 2018 decision of the ECOWAS Community Court (ECCJ) in African Federation of Journalists and Others v. The Gambia (hereinafter referred to as AFJ and Others)[1] when thoroughly considered particularly in the context of the geo-political dynamics of the West African sub-region, is notable for three reasons: Firstly, this is the first time the Gambia has declared an intention to comply with a decision of the ECCJ: there are two outstanding judgments by this Court against The Gambia which have been flagrantly ignored up until this point. The referenced cases are Ebrima Manneh vs. The Gambia[2] and Musa Saidykhan vs. The Gambia[3]: both cases, as in AFJ and Others, involved abuses and violations of the rights of journalists and members of the Press in The Gambia. The Gambia is not alone in its habitual disobedience of ECCJ orders, and a great deal of West Africa States continually ignore any decisions that may be considered politically inconvenient—an estimated 60% of ECCJ decisions are ignored.[4] Thus, there is a glaring need for progress in terms of compliance with ECCJ judgments and orders, the Gambia’s acknowledgement of the ECCJ decision in this case may be found to be a positive development in this regard. Secondly, the judgment in this case also comes at a particularly unique moment in time, given the fact that the Gambia is in the process of transiting from 22 years of nominal democracy characterized by allegations of human rights abuses,[5] to a new government that is expected to be more compliant with international laws and norms. Transitional justice is an important theme at this time, and many people are looking to receiving some form of justice for the abuses committed by the previous government, as well as seeking to see signs that may suggest that the current government will not continue in any abusive or oppressive trends. Thirdly, this case creates an opportunity to examine the effectiveness of international human rights law: Human rights law is typically treated as a branch of public international law that is separate from international criminal law and one of the ways this difference is manifested is in the fact that cases are brought against states and not against individuals in contrast to international criminal law, where the opposite is the case.[6] This is a precarious arrangement since it allows the individual culprits to avoid any punishment while directing punishment to the people, in a vicarious manner. With consideration of these three issues, AFJ and Others presents both some positive developments and some negative ones, which will be discussed in this paper. As International Law continues to grow, and the Courts which administer it seek to gain more relevance, this paper will address the question of how judicial decisions such as that in AFJ and Others may either strengthen or weaken the ongoing efforts to strengthen international human rights law, particularly in the regional political context.

 

Introduction

 

The field of International Law is primarily concerned with regulating the conduct of sovereign states with a view to preventing those states from exercising their powers in a manner that inter alia,[7] violates human rights.[8] This definition presents two immediate challenges: The first is that International Law despite being a regulatory construct is required to acknowledge and respect the sovereignty of its subjects, and thus requires the consent of the regulated as a pre-condition to the exercise of jurisdiction, and further requires their ongoing approval in order to continue to exercise jurisdiction. Similarly, the second challenge is that the international bodies responsible for regulating the rule of law on a global scale do not have appropriate enforcement mechanisms – essentially leaving it up to the State itself to comply with international court judgements, and with other States to enforce these judgements.

 

The consequence of this is that political considerations frequently take pre-eminence over legal decisions, and international court judgments, particularly within the ECOWAS sub-region, frequently end up being ineffective. Nemo judex in casua sua[9] is an established legal principle; however, in cases where individual States are at relative liberty to accept or reject the decisions of International Courts, they are practically wielding a political interference over the judicial process, and violating this principle. It must also be noted though, that the discord between State parties to the ECOWAS Treaty and the ECCJ is not one sided: The ECCJ routinely offers compensatory remedies which may be injurious to the public policy of certain States. In a geo-political region that is almost exclusively composed of Least Developed Countries,[10] strict compliance with stiff monetary penalties simply cannot be expected.

 

There is also the question of who bears the liability for the punishment meted out to a State. Typically, human rights violations are committed by agents of the State, who are actors within the government, and the most intuitive approach would be to single out the actual perpetrators of human rights abuses either as individuals or as a government, as opposed to imputing their actions to the entire State. Under the current approach however, except for the most serious criminal cases which fall under the jurisdiction of the International Criminal Court (ICC),[11] international jurisprudence is not typically targeted towards governments and the members of governments as such, but rather towards the State as an entity.

 

These issues are particularly relevant in the Gambian context today, in the face of the judgment in AFJ and Others. The African Federation of Journalists sued the Gambian government on behalf of 5 Gambian journalists, who were either detained, imprisoned, tortured, forced to leave the country or all the aforementioned by agents of the Gambian government under the Yahya Jammeh regime. 

 

From 1994 to 2016, the Gambia was under the leadership of the Yahya Jammeh, whose government acquired a reputation for the repression and abuse of human rights.[12] One of the main areas where the Gambia under President Jammeh consistently fell short of international human rights standards was in its enactment of a variety of laws creating new offences that were perceived as targeting journalists and other critics of the government, and prescribing extremely harsh punishments.[13] The right to freedom of expression is a basic human right as enshrined in the United Nations Universal Declaration of Human Rights[14] and furthermore, Articles 5, 6 and 9 of the African (Banjul) Charter on Human and Peoples’ Rights (hereinafter referred to as the Banjul Charter)[15] establish protection from torture and arbitrary imprisonment, as well as guaranteeing the right to free speech. The Gambia is a member of the United Nations (UN),[16]as well as the African Union (AU),[17] binding it to the UDHR, and making it a State party to the Banjul Charter; yet her conduct under the Jammeh government was frequently in contravention of the requirements contained therein. It should also be noted that while the Jammeh government frequently operated under the cover of bad laws, its conduct was also frequently outright lawless since conduct such as unlawful detention and torture which the Jammeh government stands accused of are prohibited within the Gambian Constitution.[18]

 

The willingness and ability of the new Gambian government to make amends with regards to the Gambia’s poor human rights record has recently been put to the test by the judgment in AFJ and Others. In this judgement, the ECCJ awarded the plaintiffs 6 million Dalasi in damages, and ordered that the Laws of the Gambia as they concern media rights and freedom of speech be amended.[19] The Gambian government has swiftly responded by accepting the judgment and indicating a willingness to comply with it, providing some indication of the new government’s intention to be more compliant with human rights laws.

 

A Step Forward

 

The ECCJ decision in AFJ and Others should be viewed as a very positive development for three reasons: firstly, it strengthens the standing of the ECCJ by reinforcing The Gambia’s acceptance of ECCJ jurisdiction. This may help put pressure on other States to do the same. Secondly, it is also a positive development to the extent to which it provides the victims of the Jammeh government with compensation and a sense of justice. Thirdly, this judgment could also be viewed as having set a precedent, indicating that the current government intends to comply with the relevant human rights provisions The Gambia is bound by. However, there may be some room for argument over whether the Gambia’s acceptance of the ECC decision is a genuine step forward, since this decision is with effect only with regards to the current case. As noted earlier, there are two prior judgments against the Gambia which are yet to be implemented: perhaps in order to be taken seriously, the Gambian government should first accept and implement the previous outstanding judgements of the ECCJ.

 

As a proposal, a true step forward in this area might be to enact domestic legislation requiring the government of The Gambia to comply with the future decisions of the ECOWAS Community Court and other relevant international bodies to which The Gambia belongs. Whether such a move is feasible Vis a Vis the desire of every State to retain and protect its sovereignty is arguable, yet there remains a need for strong commitment to the decisions of international courts such as the ECCJ. In the absence of this, individuals who seek redress at such courts are put through the risk of wasting time and resources in pursuing justice at a Court whose power is subordinated to political interests. This is potentially a double injustice since, iustitiam morari iniustitia est.[20]

 

In the domestic legal context, it would certainly be a genuine step forward if the Gambia abides by its promise to repeal the laws alluded to in the ECOWAS Community Court judgment. The posture of the government however, may be interpreted as being rather unwilling to act in this regard, since it has been in power since early 2017[21] without making any strong moves to change the offending laws, despite having promised to do so as a part of its campaign manifesto.[22]

 

A Step Backward

 

Having considered some of the positive implications of the decision in AFJ and Others, it is also necessary to consider some of its negative implications. In dissecting the value of the decision in this direction, it must be pointed out that the Gambian people were themselves victims of the Jammeh regime. As mentioned earlier, there are numerous cases where Gambians who spoke out against the Jammeh government either disappeared under mysterious circumstances, were imprisoned following dubious judicial proceedings or forced into exile, and there was a tangible fear of the National Intelligence Agency (NIA), which was accused of complicity in many of these incidents. Repressive laws were enacted and used to harass journalists and dissidents, and otherwise to ensure that Gambian citizens could not safely exercise their right to free speech. A Court judgment therefore, on the human rights violations committed by the government of The Gambia that ends up punishing the people of The Gambia in the name of punishing the Gambian State, is effectively double punishment for the victim, and is itself a greater injustice.

 

Laws ought not to be applied rigidly, particularly where such rigid application would lead to an unjust outcome affecting the wellbeing of the members of the public in general. This idea is reflected in a limited manner within international law: Article 38(2) of the Statute of the International Court of Justice (Which Statute is part of the applicable law of the ECCJ[23]), provides that the Court may choose not to abide by the interpretation of any the sources of law discussed in Article 38(1), but may choose to decide any given case in the interest of the public good if the parties to the case agree to such application.

 

This provision, while limited by the requirement that the parties to the case agree to dispense with application of legal principles, demonstrates the importance of public policy considerations in international law. Following this observation, it would not be improper to suggest that Judges of the ECCJ and other Regional Courts with respect to Human Rights ought to decide cases, to the furthest extent possible, with public policy considerations in view.

 

Analysis

 

The principal focus of circumspection with regards to AFJ and Others is not one of whether the ECOWAS Community Court has made the right decision, but it is instead a question of whether it has provided the appropriate remedy, in view of the available legal remedies when the rights and interests of the plaintiffs are weighed against the interests of public policy. The issues here are not as straightforward as one might be led to believe: the simplistic argument would be that the State committed human rights infractions and therefore ought to be penalised. However, it seems reasonable to start from the point of view that the State is an abstract entity with no true claim to legal identity in and of itself, but rather represents a people and is itself represented by a government.

 

The most commonly agreed upon elements of statehood are:

 

(a) A defined population i.e a group people who identify with each other;

(b) Living within a geographical location;

(b) Possessing a sovereign government;

(c) And having the capability to enter into treaties and relations with other States.[24]

 

The important elements that must be considered within the scope of the present case are the elements of a people, and of a government. Clearly, a State is not merely one of these elements, rather it is the contraption that brings together all of all of these elements. More specifically, a State then comprises, inter alia,[25] both the people who live within a defined territory, and the government that acts on their behalf. In this way, judgements against a State – whist nominally borne by the government of the State – are really borne by the people of that State, albeit in a vicarious manner.

 

That a government should be treated as being different from the State seems obvious: The State is permanent, but governments come and go. Governments are also typically self-serving in many respects and cannot be said to always act in the best interests of the State or of their people. In many cases, corrupt rulers abuse the mechanism of the State in order to further their own interests. A suitable approach, then, to reasonably draw conclusions about whether a course of action or conduct should be attributed to a State or its government in any given case, would be to look to determine whether or not the government in question has acted outside the known scope of the will of the people which is expressed by and within the laws of that State. In the local context, the office of the President is created within the Gambian Constitution, and details the roles and functions of the president. Where the president acts outside the scope of these descriptions, he or she is effectively violating the will of the State. For example, the Gambian Constitution prohibits torture and provides protection for freedom of expression. Crucially, Section 17 of this Constitution also binds the Executive to uphold these and other human rights provisions. Where these laws are violated, the first victim is, generally, the State itself, and it cannot be then said that the government of the day has acted on behalf of the State. For emphasis, it should be noted that the Constitution of the Gambia provides in Section 2, that the sovereignty of The Gambia lies in its people, and that the powers of government are exercised on the behalf of them.[26] Thus, the sovereign State of The Gambia is only a representation of the people of the Gambia and should not be viewed as having a separate identity of its own, nor should its identity be strictly attributed to the personality of its government.

 

With this in mind, it seems clear that the monetary remedy applied by the ECCJ merely provides double punishment for the victims and is ineffective at fulfilling the purposes of legal remedies – It is widely accepted that legal remedies should come in one or all of four major forms:

 

(a) Compensation and restoration: Victims should be returned to their former state or offered just satisfaction;[27]

(b) Retribution: Perpetrators should be made to face the retributive consequences of their actions to satisfy the need for revenge;[28]

(c) Deterrence: punishment serves as a deterrent to future misconduct[29]

(d) Reconciliation: perpetrators and their victims may be brought together and reconciled, providing a sense of justice without there necessarily being any tangible punishment.[30]

 

The decision in the case superficially fulfils some of these objectives: The State which has been viewed following the traditional approach, as being the culprit is punished with damages which also ought to fulfil the deterrent function, while the victims have been compensated both by the awarding of damages and the order instructing the Gambia to repeal the offending laws. On closer inspection, however, it may be observed that these damages have failed to apply punishment to the truly guilty party, which was the Yahya Jammeh government and not the Gambian State which was itself a victim. Aristotle, writing in the ethics[31] is widely considered as having laid the foundation for what has developed into ideas of Compensatory justice today, and made this interesting declaration: ‘What the judge aims at doing is to make the parties equal, whereby he takes from the aggressor any gain he might have accrued’. It makes sense in the light of this foundation, that for a Court to apply any compensatory measures, it must consider whether the alleged aggressor has enjoyed any benefits by virtue of its conduct. In the material case, this calls for examination of whether the Gambia as a State has acquired any benefits from the human rights abuses committed by the Jammeh government: contrarily, The Gambia as a State has been shown to have itself been a victim of these abuses. Thus, the first condition for the imposition of compensatory damages seems to be absent.

 

In terms of retribution, the individuals directly responsible for the abuses have not been punished in any way, by the remedies imposed by the ECCJ. Instead, the victim, The Gambia is being punished twice. Vicariously as well, the individual awardees are also bearing part of this retributive burden since these monies will be paid from tax payers funds to which they are ostensibly, contributors themselves. 

 

Furthermore, the deterrent function as applied in this case is also likely to be quite ineffective: Since governments and Heads of States under the current processes are not targeted for punishment, what is there to deter them from committing such acts with the knowledge that a future government would be made to bear the burden?

 

Finally, it must be considered that this judgment is a potential opening of the floodgates. Since there may be hundreds more Gambian citizens with legitimate causes against the Jammeh government the question is, would the ECOWAS Community Court be willing to award each applicant similar remedies? This question is particularly notable, since the ECCJ in AFJ and Others also clarified that Human Rights violations are not statute barred. It would have no grounds then, for denying equal remedies to applicants who present similar cases, which potentially portends a huge compensation bill for The Gambia. Thus, the long-term outcome would be one of three: either that the Court becomes inconsistent in its decisions and therefore unreliable, that The Gambia becomes saddled with a crippling compensation bill, or that The Gambia refuses to cooperate further with the Court. None of these situations would serve the best interests of the public good, nor would it serve to further the goal of strengthening international human rights law. 

 

Conclusion

 

The interaction between States, their people, and the ECOWAS Community Court of Justice is a complicated one that should be simplified as much as possible, rather than compounded. A big part of the challenge here is that international human rights law is largely considered to be separate from international criminal law, and as such, without an extension of the powers of regional courts such as the ECCJ, there will be great difficulty in constructing a suitable approach to effectively administering justice in human rights cases. Yet, the relative degree of difficulty encountered in the course of justice ought not to be the appropriate benchmark of the worthiness of any course of action. Fiat Justitia ruat coelum[32] is a foundational principle of justice and the onus therefore is upon the international comity and specifically, the sub-regional comity of ECOWAS, to determine new means with which to approach human rights enforcement more effectively, particularly by the inclusion of criminal remedies.

 

It should be noted that the conduct that forms the subject matter of this case could be eligible for scrutiny under the Rome Statute (RS). Article 7(1)(k)RS provides prohibitions against torture and deprivation of liberty, with violations of these provisions to be treated as crimes against humanity. The difficulty with referring such cases as the situation in the Gambia under the Jammeh regime, to the ICC for consideration lies in the fact that the ICC is focused on processing only what are viewed as the most serious infractions. One critical element that must be fulfilled is that the course of action should have been widespread or systematic in nature, which refers to the scale of the conduct, and the level of organization involved in its execution. The conduct of the Jammeh government is unlikely to meet these requirements, and would likely not qualify for ICC jurisdiction. However, it must be then be observed that this conduct while it does not meet the threshold for ICC consideration still falls within the subject matter jurisdiction of the Rome Statute which prohibits, inter alia, torture and arbitrary imprisonment.

It then seems quite appropriate that human rights abuses which do not meet the Rome Statute’s widespread or systematic requirements should not then be considered under an entirely different field of international law, but should rather be treated at lesser criminal courts with a lower threshold for qualification. Regional and sub-regional Courts such as the ECCJ ought to be expanded to possess criminal law jurisdiction, failing which other Courts ought to be created to serve this purpose.

 

This approach is likely to be quite arduous to implement, and will likely be fraught with some of the same challenges as currently faced by the ECCJ, such as non-compliance. However, there is another possible approach to protecting States from bearing the liability for the self-serving actions carried out by their governments, outside the will of the people: Courts may order rescission in cases where the plaintiff may be restored to their former state, and other general measures such as the amendment of bad laws. Monetary damages however, are directly injurious to public policy and thus are indirectly injurious to the development of international human rights law which in its current state is inextricable from political considerations.

 

 

 

 

 

 

 

 

 

 

 

 

 

References

 

International Treaties and Conventions

Rome Statute of the International Criminal Court, (adopted 17th July 1998, entry into force: 1st July 2001

United Nations Declaration of Human Rights (UN General Assembly, 1948)

African Charter on Human and Peoples’ Rights (adopted 28 June 1981, entry into force 21 October 1986)

The Montevideo Convention on the Rights and Duties of the States, (entry into force: 26 December 1934).

 

Gambian Legislation and Statutes

The 1997 Constitution of The Gambia.

 

Books

Dinah. L. Shelton, Remedies in International Human Rights Law, (GW Law Publications and Other Works, 2005), p 10 at 1.2.1.

Aristotle, The Ethics, Trans. J.A.K Thompson, (1955), 148-9.

 

Cases

African Federation of Journalists vs. The Gambia, ECW/CCJ/APP/36/15

Manneh v The Gambia ECW/CCJ/APP/04/07 

Musa Saidykhan v. Gambia, ECW/CCJ/JUD/08/10

ICC, Prosecutor v. Ruto, Koshey and Sang, "Decision on the confirmation of charges", ICC-01/09-01/11, 23 January 2012, para. 176-177.

 

Internet and News Sources

Human Rights Brief, ECOWAS Community Court Focuses on Effective Implementation, <http://hrbrief.org/2012/11/ecowas-community-court-of-justice-focuses-on-effective-implementation/> accessed 8th April 2018

World Report 2017, Gambia Events of 2016, <https://www.hrw.org/world-report/2017/country-chapters/gambia> accessed 8th April 2018

‘The Gambia Under Yahya Jammeh: 22 Years of Repression and Rights Violations’, (Media Foundation for West Africa), http://www.mfwa.org/country-highlights/the-gambia-under-yahya-jammeh-22-years-of-repression-and-rights-violations/ accessed 8 April 2018

‘The Gambia: President Barrow Sworn in at Packed Stadium’ (The BBC) <http://www.bbc.com/news/world-africa-39011393> accessed 8 April, 2018

Vivian Afloah, ‘One Year After Jammeh: Is the Barrow Government Keeping Its Promises?’(Media Foundation for Africa, 17 December 2017) < http://www.mfwa.org/one-year-after-jammeh/>accessed 8 April, 2018

United Nations, <http://www.un.org/en/sections/what-we-do/uphold-international-law/> accessed 31st March 2018

One World Nations Online, ‘List of Least Developed Countries’, <http://www.nationsonline.org/oneworld/least_developed_countries.htm> accessed 8 April 2018

ChartsBin, ‘List of African Union Member States’, (ChartsBin), <http://chartsbin.com/view/1341> accessed 8 April 2018

Community Court of Justice – ECOWAS, (courtejustice.org), <http://www.courtecowas.org/site2012/index.php?option=com_content&view=article&id=2&Itemid=5>, accessed 12 April 2018.

 



[1]African Federation of Journalists vs. The Gambia, ECW/CCJ/APP/36/15

[2] Manneh v The Gambia (2008) AHRLR 171 (ECOWAS 2008)

[3] Musa Saidykhan v. Gambia, ECW/CCJ/JUD/08/10

[4] Human Rights Brief, ECOWAS Community Court Focuses on Effective Implementation, http://hrbrief.org/2012/11/ecowas-community-court-of-justice-focuses-on-effective-implementation/

[5] World Report 2017, https://www.hrw.org/world-report/2017/country-chapters/gambia

[6] Rome Statute of the International Criminal Court, Article 25(1)

[7] Latin i.e “among other things”

[8] United Nations, What is International Law, http://www.un.org/en/sections/what-we-do/uphold-international-law/ accessed 31 March 2018

[9] Latin i.e “no man shall be a judge in his own case”

[10] http://www.nationsonline.org/oneworld/least_developed_countries.htm

[11] See: the Preamble of the Rome Statute of the International Criminal Court

[12] The Gambia Under Yahya Jammeh: 22 Years of Repression and Rights Violations, (Media Foundation for West Africa), http://www.mfwa.org/country-highlights/the-gambia-under-yahya-jammeh-22-years-of-repression-and-rights-violations/ accessed 8 April 2018

[13] Ibid

[14] United Nations Charter Declaration of Human Rights

[15] Africa (Banjul) Charter on Human and Peoples Rights

[16] http://www.un.org/en/member-states/

[17] http://chartsbin.com/view/1341

[18] 1997 Constitution of The Gambia, Sec. 19, 21

[19] African Federation of Journalists vs. The Gambia, ECW/CCJ/APP/36/15

[20] Latin i.e to delay justice is to deny justice

[21] ‘The Gambia: President Barrow Sworn in at Packed Stadium’ (The BBC) <http://www.bbc.com/news/world-africa-39011393> accessed 8 April, 2018

[22] Vivian Afloah, ‘One Year After Jammeh: Is the Barrow Government Keeping Its Promises?’(Media Foundation for Africa, 17 December 2017) < http://www.mfwa.org/one-year-after-jammeh/> accessed 8 April, 2018

[23] Community Court of Justice – ECOWAS, (courtejustice.org) <http://www.courtecowas.org/site2012/index.php?option=com_content&view=article&id=2&Itemid=5>, accessed 12 April 2018

[24] The Montevideo Convention on the Rights and Duties of the States, 1933, Article 1

[25] Latin i.e. ‘among other things’

[26] The 1997 Constitution of The Gambia, Sec. 2

[27] Dina. S. Shelton, Remedies in International Human Rights Law, (GW Law Publications and Other Works, 2005), p 10 at 1.2.1.

[28] Ibid at p 12, 1.2.2

[29] Ibid at p 13, 1.2.3

[30] Ibid at p 14, 1.2.4

[31] Aristotle, The Ethics, Trans. J.A.K Thompson, (1955), 148-9

[32] Latin i.e. ‘let justice be done though the heavens fall’