Judicialism and Regional Protection of Human Rights: An Overview of the Ecowas Paradigm

 

 

 

By

 

Henry C. Alisigwe (Ph.D., UNIZIK), Senior Lecturer at the Faculty of Law, Imo State University, Owerri, Nigeria and a Visiting Professor and Ag. Dean of Law at the Faculty of Law, University of The Gambia. His research interests are in the areas of Public International Law, International Humanitarian Law, Human Rights, Diplomatic and Consular Law, Law of The Sea, Law of International Institutions etc. E-mail: This email address is being protected from spambots. You need JavaScript enabled to view it.;

 

Chimere A. Obodo (LL.M, Aberdeen) is a Lecturer at the Faculty of Law, Imo State University, Owerri, Nigeria and is currently a Doctoral Research candidate at the Robert Gordon University Scotland.

 

Abstract

Human rights and their protection have always occupied the consciousness of mankind across various epochs. Agitations for the veneration of these rights are at the roots of many conflicts. Consequently, in its corporate manifestations as a state and given the social and normative functions of law, humanity has leveraged on the law as an aid to accord protection to these rights that are deemed ineluctable to the existence of a human being. However, to underscore its importance and as a touchstone to determine the progress of states towards the welfare of its citizens, the community of states that drives the international system have also made human rights a core objective. Thus, virtually all international organisations whether at supra-national or sub-regional levels, have human rights treaty regimes undergirding it. These treaty regimes are not self-executing and will thus depend on a select body of persons, working as an institution, for interpretation to assure on the certainty of its precepts. The concept of judicialism is symbolic of this body of persons working as an institution. Given the needs and challenges of the ECOWAS region regarding human rights promotion and protection, this work looked at judicialism as a concept and its use within the ECOWAS organisational structure in assuring the promotion and protection of human rights in the region of West Africa.

Keywords: Judicialism, Regional, Human Rights, ECOWAS, Paradigm

 

Introduction

Law is one of the institutions that are central to the social nature of man and without which he would be a very different creature. Thus, at every epoch in time, man has always relied on some form of law to give vent to his desire for peace, stability and orderliness in his quest to maximise the resources inherent in nature[1]. However, these desires can only be accomplished if the rights appurtenant to man is respected for that is the essence of using the law to integrate man into a community where he associates with others, share values and aspirations with his neighbours and develop common objects and ideas.Thus, the maxims ubisocietasibi jus and ubi jus ibiremedium are not just mere aphorisms. While the law is a stabilising index of man’s collective aspirations for achieving personal harmony within his society; a regime of human rights consciously protected under the law makes the realisation of man’s aspirations doubly sure. It is against this backdrop that every society irrespective of size or status has always created for itself a framework of principles within which to develop. Likewise, permissible acts and forbidden acts have all been spelt out and ingrained in the consciousness of the particular society.

Law has become that element that binds members of a society together in their adherence towards recognised values and standards consisting in the main of a series of rules regulating behaviour and mirroring to some extent the ideas and preoccupation of the society it seeks to regulate. In this regard, law, whether permissive and punitive which relates to either what it allows such as freedoms accorded the individual or punishment it metes out for encroaching on the freedoms allowed the individual, is not automatic and self-executing. Every society at every epoch in history has always assembled men and institutions whose primary aim have always been to interpret these laws with a view to settling disputes and within permissible limits and standards recognised for governmental actions for those in such authority. This proclivity for a body of persons or institution charged with interpretation of laws and settlement of disputes underlines the whole concept of judicialism. The judiciary has always existed in every society and in every epoch of time. Their nature and characteristics are often a function of the civilisation and sophistication of the particular society. In the same way, their roles have revolved around the protection of rights and the doing of justice. This role of the judiciary which is encapsulated in the expression ‘judicial power’ has been aptly described as the power which the state exerts in the administration of public justice[2] as contradistinguished from the power the state possesses to make laws and to execute laws.

The idea of law and the imperative of its functions in the life of man in society has been transmitted into the international arena which is made up of a conglomeration of societies cum states.[3] The driving force of the international system is sovereign and independent nation-states and international and regional organisations.[4]However, one major trait of the international system is competition over the human and material resources of the world environment. This struggle is sometimes reflected in the domestic scene where the quest for power is often very brutal. Critical in these struggles is the fate of the individuals who are caught up in the struggles. This prompts the question whether the rights and humanism of these individuals are always factored in or considered as constitute part of the booties? Against these backdrops, therefore, conscious efforts have always been made to institutionalise resort to a human rights regime, law and judicial process as a veritable instrument for actualising man’s desire for a peaceful and fulfilled living conditions. This resort to a regime of human rights, law and judicial process will, in turn, entail the selection of a select body of persons endowed with the requisite intellect and professionalism to adjudicate on sundry and separate issues as may be brought by interested parties. Nowhere are issues keener and more problematic than in the area of human rights which daily engages world attention. Given its relevance in assuring peace and stability, virtually all regional institutions have made its promotion and protection under a judicial procedure a cardinal objective. It is against this backdrop that this work examined the ECOWAS paradigm in judicial protection of human rights.

 

Meaning and Definition of Judicialism

In conventional English usage, the word “judicialism” has not yet attained a life of its own by way of being imputed with an ordinary meaning as per other words of the English language. However, etymologically speaking the term “judicialism” is a derivative of two words, to wit; “judicial” and “ism”. Consequently, we shall construct our meaning and definition of the term from an appraisal of two terms “judicial” and ism.” According to the Oxford Advanced Learners Dictionary, the word “judicial” is defined as ‘… connected with a court, a court or legal judgment.’[5] The same dictionary defined the word “ism” as ‘…. referring to a set of ideas or system of beliefs or behaviour.’[6]

On its part, The Webster Ninth New Collegiate Dictionary defined the word “judicial” as ‘… of or relating to judgment; the function of judging, the administration of justice or the judiciary’,[7] belonging or appropriate to a judge or the judiciary. In the same vein, the word ‘ism is defined as ‘a distinctive doctrine, cause or theory; act, practice, process; manner of action or behaviour characteristics of a person or thing; adherence to a system or class of principles’.[8] According to the Black Law Dictionary, ‘judicial’ is defined as ‘… of relating to or by the court or a judge’.[9] Furthermore, the Gilbert Law Dictionary defines the term ‘judicial’ as “relating to or pertaining to legal proceedings or the administration of justice’.[10] In other words, from the definitions of the words ‘judicial’ and ‘ism’, it is apparent that the word ‘judicialism’ connotes the idea, belief and practice of adjudication which is the legal process of resolving a dispute or the process of judicially deciding a case.[11]

 

 

Rationale for the Judicial Function

 

It needs emphasising at this juncture that every society irrespective of its civilisation and sophistication at any given epoch in history has always devised means whereby disputes arising in the daily intercourse of its members could be settled. The need for the judiciary is underlined by the fact that dispute is an inevitable fact of man’s socio-economic and politico-cultural existence. Moreover, given man’s aptitude for absolutism when invested with power, the judiciary comes in handy as the institution invested with the power to hold the balance between the government and the governed. Thus, within the municipal law and in the context of constitutionalism, the judiciary acts as the watchdog to ensure that both the government and the governed act in accordance with the provisions of the supreme law and other laws of the land. Any good society must have as its foundation's law, justice, peace and security, as these values rank among the crucial needs of the people in any society.[12]

 

Living in society creates rights and imposes duties. However, man is a social and rational being and is imbibed with a free-will. This enables him to obey or disobey the laws passed to govern and regulate different social relationship and interactions. However, the need for the law of the society to be enforced and their breaches redressed in turn necessitated the need for an arbiter and umpire which in turn led to the introduction of the court system designed to look after the interpretation of the society’s laws, to adjudicate and to settle disputes in order to maintain social and just equilibrium.[13] In the task of carrying out its adjudicatory functions, the judiciary is always confronted with the challenge of mediating between principle and practice; between constitutional idealism and naked and practical idealism; between the hopes of ordinary men and women and their despair.[14] Thus, the judiciary as the guardian of the law is in the unique position to create among the people an attitude of respect for law and legality in the conduct of public affairs. A fortiori, the attitude of the people towards the law and legality is conditioned to a large extent by the way in which its provisions are interpreted and applied by the courts.

 

A liberal and purposive interpretation of the law coupled with courageous dynamism in its application attracts vitality and reality to its provisions. This notwithstanding, it further engenders on the consciousness of the rulers the peremptoriness of its command and the futility of disobeying its provisions. Consequently, it has been posited and we agree that ‘a government faced with such imminent risk of having its acts invalidated by an ever watchful judiciary might … make respect for the constitution a touchstone of all its actions’.[15] For the governed, the impact of the approach above to statutory interpretation will be the engendering of a willingness to seek the intervention of the court against any breach of the provisions of the law by the government. Still, at the International level, the unwavering resolve by members of the International Community for resort to law and legality in the conduct of inter-state intercourse has engendered an aptitude for judicialism among actors of the international system. Especially is this so when the horrors of the two World Wars, the impunity of political leaders in quelling agitations by their citizens and the status (political, economic and military) of the various states are factored in. Judicialism comes in as an assurance that the world can be turned into a community of states governed by law and legality.

 

 

Characteristics of the Judicial Function

 

The judicial function is necessarily coterminous with the exercise of judicial power. Judicial power is the power which the state exerts in the administration of public justice. While this is to be contradistinguished from the power of executing them, it necessarily encapsulates the power which every sovereign must necessarily have to decide controversies between itself and its subjects whether the right relates to life, liberty or property. However, against the backdrop that other processes exist for the amicable resolution of disputes, it becomes necessary at this juncture to highlight some of the attributes appurtenant to the exercise of the judicial function, to wit;[16]

 

(a)        Courts decide controversies or disputes: For it to do this, such controversies or disputes must be justiciable disputes, that entails a dispute or controversy affecting the legal rights of a person and for which the laws of a country have invested the courts with power to decide upon.

(b)        Courts typically decide whether legal rights exist in a particular case and by so doing finally disposes of the whole dispute.

(c)        Courts apply pre-existing legal rules: This is predicated on the fact that legal rights are dependent upon the existence of legal rules.

(d)        Courts make determinations which are binding upon the parties.

(e)        The judicial process affords the disputing parties the opportunity of arguing for a decision in their favour by presenting proofs and reasoned argument.        

(f)        The judicial power is not self-activating as it can only be exerted at the instance of a person asserting a legal right.

(g)        The courts are invested with power to enforce compliance or obedience to the decision.

(h)        The courts are often constituted in such a way that they remain independent from popular or party pressure.

 

However, it needs emphasising at this juncture that at the International level, all these attributes may not apply strictly due to the concept of sovereignty. Thus, International Judicial Institutions lack the power to enforce their decisions.

 

 

Meaning and Nature of Human Rights:

Just like most legal concepts, there is no unanimity of views on the definition of human rights by both legal and political writers, yet virtually every legal instrument regulating human conduct contains a list of rights which are supposed to be promoted, secured and protected. Every attempted definition of human rights is often blighted by the authors’ philosophical and ideological biases.[17] Against this backdrop, Cranston has defined human rights as ‘something of which no one may be deprived without great affront to justice. There are certain deeds which should never be done, certain freedom which should never be invaded; some things are suppressively sacred’.[18] This definition has been criticised as being too idealistic, lacking in precision since it seeks to engraft such notion as justice onto it when it is a trite fact that justice as a value varies from society to society.[19] In another dimension, Dowrick’s definition posits human rights as ‘those claims made by men for themselves or on behalf of other men supported by some theory which concentrates on the humanity of man, on man as a human being, a member of the human kind’.[20] Furthermore, Gasiokwu opines that this definition which is thought ambiguous has its underpinnings in natural law which in its time was politically motivated despite its religious and ethical colouration.[21]

 

Given the fact that understanding what ‘right’ involves a descent into a controversial albeit intense jurisprudential debate, to wit: must a right be one that is positively recognized within a particular legal system before its acceptance under international law or vice versa;[22] or must such cohere with the moral and ethical values venerated by a particular community,[23] we share the view expressed by Professor Osita Eze when he posited as follows: ‘human rights represent demands or claims which individuals orgroups make on society, some of which are protected by law and have become part of lex lata while others remain aspirations to be attained in the future’.[24] Stricto sensu, only a right accorded recognition and protection under a particular legal system can be considered a right.

 

Concern for human rights predates the modern era and is traceable from the times of the Greek City States[25]through the various stages of socio-economic formations. It remains moot whether such ideas of rights and liberty equates with the modern-day conception of human rights. This is against the backdrop that neither the Greeks nor the Romans had any concept of universal human rights. Thus, it was for this reason that slavery was justified in ancient times as a natural condition[26]In this regard, ­­medieval charters of liberty such as English Magna Carta has been impugned as not been charters of human rights let alone charters of rights but rather constituted a form of political and legal agreement to address specific political circumstance.[27]

 

The basis of most modern legal interpretations of human rights has been traced back to recent European history. Thus, the 12Articles (1525) are considered to be the first record of human rights in Europe. They were part of the peasant demands raised towards the Swabian League in the German Peasant war in Germany. For instance, in Spain, Bartolome de Sepulveda in the famous Valladolid debate in 1542maintained an Aristotelean view of humanity as divided into classes of different worth, while Las Cases argued in favour of equal rights to freedom of slavery for all humans regardless of race, sex or religion. However, in 1683 Britain, the English Bill of Rights (or an Act Declaring the Rights and Liberties of the Subjects and Settling the Succession of the Crown) and the Scottish Claim of Rights each made illegal a range of oppressive government actions. Similarly, two major revolutions occurred in the United States (1776) and France (1789). The events during this period led to the adoption of the United States Declaration of Independence and the French Declaration of the Rights of Man and the Citizens respectively, and both Declarations established certain rights for human enjoyment. It is important to mention the Virginia Declaration of Rights in 1776 which encoded into law some fundamental civil rights and freedoms.[28]

 

Given this development in the area of rights up to the twentieth century, many groups and movements successfully achieved profound social changes in the name of human rights. For example, in Western Europe and North America, labour unions brought about laws granting workers the rights to strike, establishing minimum work conditions and forbidding or regulating child labour. The women rights movement succeeded in gaining for many women the right to vote. While national liberation movements in many countries succeeded in driving out colonial powers,[29] movements by long-oppressed racial and religious minorities succeeded in many parts of the world.[30] However, it is instructive to note that despite the promotional effect of debates and agitations in sharpening the consciousness of human rights issues, progressive shifts in its nature and scope vis-à-vis its promotion and protection is always the product of struggles between the privileged and the oppressed. Thus, whenever and wherever people come together to resist despotism, impunity, oppression, hunger, want and many more, at the core of such resistance is what people feel is their right even though such is not baptised ‘human right’ conceptually speaking.

 

 

Classification of Human Right under International Law

 

Legal writers and jurists are unanimous in holding the view that human rights can be classified into three broad categories. These are:

 

a.         First Generation Rights which consists of civil and political rights and have under its ambit such issues like the right to life, right to liberty, right to self-determination. Its major exponents are the Western countries.

b.         Second Generation Rights which consists mainly of socio-economic rights. It embraces issues like the right to work, right to an adequate standard of living. Its exponents were the socialist countries of which the defunct U.S.S.R. was the pivot.

c.         Third Generation Rights: This genre of rights looks more to the group as a           whole and not the individual. It includes the right to development. Its major proponents are the developing countries who believe that because of the depredations wrought on their economies by colonialism, they have a right to sustainable development.

 

Note that for the three categories of rights to be effectively enjoyed, they must go pari passu. Thus, it is generally accepted in contemporary times that continued dichotomisation of this category of rights does no justice to the extent that these rights tend to be interrelated and interdependent.[31]Indeed, for what meaning is there to right to life when one has no work or access to healthcare.

 

Furthermore the classical civil and political right such as the right to vote is necessarily understood as implicating the state to use resources to organise regular elections by printing ballot papers, installing booths, and ensuring political participation of citizens.[32]However, the scope of the protection of these rights and the degree of their realisation vary among countries often depending on the prevailing political philosophy and the development of the productive forces.[33] Thus, while the Western approach emphasises the basic civil and political rights of individuals by imposing limitations on the power of the state vis-à-vis the individuals, the socialist approach imposes an affirmative and proactive role on the state. A priori, the promotion and protection of human rights moved beyond limiting the interference of states to casting a duty on states to take active steps towards ensuring the enjoyment of these rights. A fortiori government actions in respect of the rights are denoted by the obligations imposed by these rights. Of particular importance to this analysis, the government has four major tiers of obligation which apply equally to all the rights, to wit: respect, protect, fulfil and promote. These tiers of obligation expatiate as follows: states must respect rights by refraining from interfering with the enjoyment of these rights; for example, by not evicting people who are homeless. States must protect bearers of rights from intrusions by third parties by way of legislating or by adopting other measures, for example by prohibiting exploitative labour practices by employers of labour. States are to fulfil rights when they are required to take positive measures to ensure the direct enjoyment of a right; for example, building and equipping the hospitals. The obligation to promote rights require states to enable people to exercise rights in the longer term; for instance, by education and the creation of awareness about these rights.[34]

 

 

The Concept of Regionalism

 

The trends towards regionalism are in part an outcome of the necessity of pooling national resources for protection in a divided world buffeted on all sides by conflicts and economic crisis.[35] Regionalism is assumed to be a bulwark against adverse economic and security development as well as a galvaniser for development in all spheres of human development and constitute one of the most interesting developments in recent international relations. The UN Charter accords recognition to regional arrangements while its human rights norms have been the minimum standard relied upon by regional organisations in defining their human rights standards. Thus, it acts as a validating instrument. In strict legalese, the concept of regionalism is amenable from a domestic law perspective and international law perspective.

In domestic law, it is used to denote areas smaller than states. In this wise, it can thus be defined as:

‘That system where the government permits and encourages the development of the culture and institutions originally belonging to a region within the state and even to the delegation of substantial legal and constitutional powers to the region, only short of sovereignty’.[36]

At International Law, however, regionalism is used to emphasise an area embracing the territories of three or more states. These states are bound together by ties of common interest as well as of geography.[37]Contiguity need not be a necessity; neither do they need to be on the same continent. An example of the non-contiguous association of fewer states straddling the various continents is the fifteen nations NATO alliance. It needs stating that the term “regionalism” is elastic enough to accommodate sub-regional groupings[38] and is a recognition of the fact that greater progress could be made in the political, economic and security fields on a regional or sub-regional basis between states whose fundamental similarity of political and economic institutions lessened the barriers to progress and cooperation.[39] Thus there could be regionalism in respect of the economic organisation, cultural organisation, health, and many more, all geared towards enhancing the humanity of the individual.

A fortiori, a regional organisation is in definitional terms an association of three or more states bound together by common economic, religious, geographical, political or security affiliations. The allure regionalism holds in recent times is not unrelated to the socio-economic and political challenges encountered by states which have engraved upon their psyche, the stark reality about the desirability of interdependence which has, in turn, necessitated commensurate efforts aimed at achieving some desirable level of cooperation. Especially is this so in the human rights field and the need to protect the individual against the tyranny of the state. However, while the romanticism ascribed to the role regionalism plays in solving some of the challenges faced by mankind is merited, sight should not be lost of the fact that regionalism could be antagonistic to universalism.[40]

 

Regional Protection of Human Rights

Towards the end of the twentieth century, the gravitational pull of human rights intensified, permeating into nations and regional blocs. Thiswas further enhanced by the concept of globalisation which increasingly accentuated the common causes of humanity and neo-liberal ideologies. Significant advances have subsequently been made in expanding the normative reach of human rights law. Regionalising human rights is a normative beacon that beckons states to internationally agreed minimum standards.[41]This has the capacity of entrenching a higher level of convergence and coherence between states and thus allowing for greater norm specification in the regional and non-regional spheres. Thisis more likely actualisedwhen states are closely bounded by economic and political ties,and it opens the possibility for faster response and improved implementation of human rights norms.

For instance, Europe, America and Africa have adopted human rights conventions which complements and reinforce universal human rights conventions.[42] These conventions which contain norms and institutions that are accepted by states as binding are likely to be more successful than their universal counterpart because of political and cultural homogeneity and shared judicial traditions and institutions within a region and which provide the basis for confidence in the system which is necessary for effective implementation.[43]In addition, the human rights regimes in Europe, America and Africa operates under the auspices of an inter-governmental organisation respectively[44] and undergirded by judicial and semi-judicial institutions. Take, for instance, the Council of Europe was responsible for the European Convention for the Protection of Human Rights and Fundamental Freedoms which was adopted in 1950 but came into force in 1953. As the first regional human rights instrument, the European human rights system has also remained the best developed regional human rights system.[45]Notably, the European Convention which has fourteen Protocols incorporated thereon contains mainly civil and political rights.[46]

The American Convention, on the other hand, is a product of the organisation of American States and was adopted in 1969 but came into effect in 1978. It not only contains rights similar to those contained in the European convention but also contain some socio-economic rights. However, the African Charter on Human and Peoples Rights is a product of the defunct Organisation of African Unity. It was adopted in 1981 but became operational in 1986. In a marked deviation from both the European and American Convention on rights, it contains justiciable socio-economic rights and also elaborates on the duties of individuals and the rights of the people. It needs stating here for emphasis that just as regional groups draw inspiration from the UN instruments on human rights, so too does the sub-regional organisations draw inspiration from regional organisations.

 

Ecowas, Judicialism and Human Rights Protection

The West African sub-regional institution known and called ECOWAS[47] was established on May 28,1975, by Heads of States and Governments in West Africa sequel to the signing of the treaty of Lagos. It originally comprises of sixteen states within the West African sub-region, but Mauritania opted out in 2000.[48]  It focused more on inter-governmental relations even as it aims at collective self-sufficiency through the advancement of economic integration in West Africa that should ultimately lead to a large trading bloc and single monetary union. However, given the emerging unipolar world occasioned by the demise of the Soviet Union in 1991 and the wave of democratisation sweeping across the African continent, ECOWAS in 1992 commissioned a review of its founding treaty.[49]The resultant report recommended that a shift be made from ECOWAS exclusive focus on inter-governmental relations to involving the people, NGOs, and the private sector and adopt provisions establishing organs such as the Parliament of the Community comprising of representatives elected by the peoples of the member states, an Economic and Social Council comprising socio-political groups drawn from all sections and categories of the body, the Community Court of Justice,among others. These and other recommendations formed the fulcrum of the report which was implemented through the adoption of the ECOWAS Revised Treaty in 1993.

By the revised treaty of 1993 which became operational on 23rd April 1995, the aims of ECOWAS include the promotion of co-operation and integration leading to the establishment of an economic union in West Africa with a view to raising the living standards of its peoples and to maintain and enhance economic stability, foster relationsamong member states and contribute to the progress and development of the African continent.Against the backdrop of that, the founding treaty made no provision for the creation of supra-national institutions to superintend the regional integration process given that the dominant trend then was in favour of full veneration of states independence and sovereignty; the ECOWAS revised treaty of 1993 created institutions[50] to which it entrusted supra-national functions.[51]  This new legal regime brought about by the revised treaty of 1993 confers on the community the power to enact legal instruments which also conform to the principles of immediate and direct effect.[52]In addition, it enshrines the supremacy of community law over national legislation.

The Revised ECOWAS Treaty as part of its fundamental principles, enjoined states parties to among other objectives to recognise, promote and protect the human and people’s rights in accordance with the provisions of the African Charter on Human and Peoples Rights.[53] In furtherance of this human rights objectives, the Community Court,[54] as an institution was clothed with a human rights jurisdiction.[55]That said, it is necessary to acknowledge at this juncture that regional human rights regimes complements international human rights treaties.[56]Their validity is underpinned by Articles 52(1) and 56 of the UN Charter.  A priori, the UN and its organs have always provided inspiration and encouragement for the establishment of a regional human rights system as an ethical regime embedded on certain intrinsic attributes of our shared humanity.

Ladan observed that regional human rights regime had been justified as providing complementarity to the universal standards by facilitating the adoption and adaption of universal human rights to regional peculiarities.[57] In this way, it is hoped that the regional human rights systems can bridge the gap between the aspirations of universal proclamations and the effective realisation and protection of human rights norms.[58]It is further believed that regional human rights regimes enable rights to be formulatedon the basis that not only commands confidence among the regional but also allows effective enforcement.[59] However, with regards to human rights as a core value of ECOWAS, it only needs restating that apart from member states’ individual subscription to international human rights treaties, the respective Liberian and Sierra Leonian conflicts of 1989 and 1991 provided a trigger that compelled a reappraisal of the role of human rights in guaranteeing regional stability and security in ECOWAS.

The ECOWAS Heads of States in July 1991 adopted a Declaration of Political Principles wherein they reaffirmed the need for the creation of a stable and secure region in which people of West Africa can live in freedom under the law and for concerted regional action to promote democracy on the basis of political pluralism and respect for fundamental rights as embodied in universally recognised international instruments on human rights and in the African Charter on Human and Peoples Rights. An undertaken was further made vide the Declaration to respect human rights and fundamental freedoms in all their plenitude including in particular freedom of thoughts, conscience, association, religion, or belief for all our peoples without distinction as to race, sex, language, or creed.  Assurances were made to promote and encourage the full enjoyment by all our peoples of their fundamental human rights, especially their political, economic, social, cultural, and other rights inherent in the dignity of the human persons and essential to his free and progressive development.[60]

The recognition of human rights as a fundamental value in the Revised Treaty is of great importance as it consecrates human rights into common political values underpinning integration that will lead to the establishment of an economic union. Amongst key issues expected from the economic union is raising the living standards of its people, maintaining and enhancing economic stability and fostering relations among member states which pro tanto contributes to the progress and development of the African continent. However, while the roles of other ECOWAS institutions in realising the human rights objectives cannot be overemphasised, the centrality of the ECCJ remains ineluctable in the success of these objectives. That said, the jurisprudence of the court is replete with bold and progressive attempts at enshrining human rights ethos and values into the fabric of community affairs which sometime allows it take position that issui generis when juxtaposed with other regional human rights instruments. Take, for instance, some international law provisions[61] requiring the exhaustion of domestic remedies[62] as a condition precedent before instituting a legal action before supranational judicial and quasi-judicial institutions.[63]

Domestic remedies are, indeed, remedies open to natural or legal persons before the judicial or administrative courts or bodies, whether ordinary or special, of the state causing the injury.[64]Thus, extra-legal, non-judicial, and remedies as of grace or favour do not qualify as remedies to be exhausted.[65]The rule on exhaustion of domestic remedies flows from the domestic jurisdiction principle in international law wherein states have no right to interfere in the internal activities of other states’.[66] This rule aims at permitting states to solve their internal problems in line with their laid down constitutional procedures before invoking any international judicial dispute settlement mechanisms. However, the position of the law is different where such internal remedies expected to have been laid down in their constitutional framework are non-existent or are unduly and unreasonably prolonged or unlikely to bring ineffective relief.[67]

Still, this customary international law rule has been assimilated into treaty law vide its adoption by the various international and regional human rights instruments.[68]While theoretically, there remains a controversy as to whether this rule is a substantive or procedural rule or some hybrid of both, it remains indubitable that the purpose of the rule is to enable the state to have an opportunity to redress a wrong that has been wrought within its legal order and pro tanto reduce the number of international claims.Moreover, it also accords with the sovereignty and jurisdiction of foreign states by not pre-empting the operation of their legal systems.[69] However, the ECOWAS Court in granting access for human rights violation made a radical detour with its omission of any provision on exhaustion of domestic remedies. In a series of judgements, the court would seem to have concluded in favour of a monist legal order in matters of human rights violations. For example, the court in Musa Saidykhan V Republic of The Gambia,[70]while dismissing the objections of the defendant to the exercise of jurisdiction by the court on the ground of non- exhaustion of domestic remedies, ruled as follows:

‘[T]he the fact that there is a rule of customary international law in 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 grantedplaintiffs are coming before this court. Therefore ...that rule is not applicable to this court’.[71]

Despite the lethargy of most ECOWAS member states governments to human rights protection, the widespread violations of human rights by state agents and the drudgery of state institutions saddled with the responsibility, the ECOWAS Court’s attitude on the non-exhaustion of local remedies rule is a welcome development.[72]Still, criticisms for the court’s non-adherence to the non-exhaustion of local remedies rule is often anchored on the following:

(a)   The local remedies rule allows the parties the opportunity to file an appeal against an erroneous ruling in a first instance trial.[73]

(b)   Lodging a complaint against a government for human rights violations in national courts provides a government with the opportunity to respond without the requisite drama of a lawsuit on an international stage.[74]

 

These critics seem oblivious of the prospect the rule holds in entrenching human rights ethos and values in the fabric of West African states governmental affairs. A review by the ECOWAS Court may provide complainants with the opportunity to obtain more generous settlements at the domestic level, and apriori may just be the fillip the domestic courts need to align with international standards. Nonetheless, given the poor governance structure and weak institutions that pervade the ECOWAS sub-region, the authors align their views with Ohurogu who in justifying the rule posits thus:

 

‘The member states of ECOWAS are either fragile and emerging democracies or authoritarian regimes whose legal systems have little or no tradition of judicial independence, the rule of law, and lacking in judicial integrity. The cost of justice can only be afforded by the rich and well-placed members of the society. Insisting on the exhaustion of local remedies under the circumstances will be a direct way of denying justice to the oppressed. It is these groups of vulnerable people that need the protection of the court; they are the ones who will never be able to afford justice within their local institutions’.[75]

 

From this follows that the argument in favour of upholding the non-exhaustion of local remedies rule may seem alluring when viewed against the backdrop that it is a principle of public international law.Moreover, it is likely that there is, for instance, a justifiable deviation on international human rights law basis which is of sui generis character whose object and purpose is the protection of the basic rights of individuals irrespective of their nationality. The effect of this is that states’ are deemed to have submitted themselves to a legal order within which they, for the common good of people within the region, assume various obligations not only in relation to other states, but toward all individuals within their jurisdiction.[76] Thus, it can be argued that since the violations of human rights are at the root of human agony and wars across various epochs, any mechanism that will substantially address human rights protection and promotion should not be sacrificed on the altar of admissibility procedure.

 

 

Conclusion

 

The allure of human rights keeps getting more attractive in the international system such that many principles of international law are being reconsidered where adherence to such principles might provide, albeit inadvertently, cover for the violation of human rights. Today human rights have transmuted into jus cogens norms while its obligations are of ergaommes status. The importance of law and the judicial process in aid of human rights promotion and protection have become entrenched in the psyche and consciousness of the international community. This is against the backdrop of the fact that most of the world’s humanitarian crisis are rooted in the violation of human rights. However, there is need to give victims and perpetrators fair hearing despite the admiration of these rights. The defence of complaints will, in turn, entail the empaneling of a select group of persons with the requisite intellect and physical stamina as judges to adjudicate on matters concerning the violation of these rights.

 

International human rights law system is designed to induce states to remedy the inadequacies of their national laws and institutions in protecting the universal human rights goals.[77]For this reason, the judiciary remains the bulwark against impunity in any society and its promotional effect in the global human rights regime cannot be overemphasised. This perceived role of the judiciary becomes poignant when the human rights regime in Africa is appraised. Thisis so given the lethargy of African governments and weak institutional structures within the African continent. Thus, resort to international judicial institutions for the protection of human rights of individuals becomes the citizens preferred options in most cases. Equally, it is within this contextual milieu that the ECOWAS Court was discussed.

 

The Court must be emphasisedas part of the re-engineering of the ECOWAS institutional structure for purposes of assuring a more robust renaissance in the quest for the development of the sub-region in all facets of development. Its human rights jurisprudence is both refreshing and interesting. This is against the backdrop of its admissibility criterion. It blazed a trail that is unprecedented in the history of international judicial enforcement of human rights with its exclusion of the exhaustion of local remedies rule. While many writers have assailed this exclusion as not being in tandem with international law and the prevalent judicial norm cum practice of other supranational judicial bodies; it is herein argued that the exclusion is one that should be maintained. This is against the backdrop that the human rights regime in many West African states are weak despite all pretensions to adherence to international human rights standards. Thus, only a radical paradigm shift nurtured by the judex can rein in the governments of member states into recognising their human rights responsibilities to their citizens. If fillip is to be given to the lofty ideal of integration as espoused in the revised ECOWAS Treaty, the human rights regime must be accorded primacy in substantive terms above every procedural rule of admissibility.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Bibliography

 

Articles

 

Alisigwe H. C., ‘Impact of Regionalism on the Evolution of International Legal Norms’ (2012) 3 JCCL, 253

Weston B. H., Lukes R. A., and Hnat K. M., ‘Regional Human Rights Regimes: A Comparison and Appraisal’ (1987) 20 Vanderbilt Journal of Transnational Law, 585

Williams A, ‘The European Convention on Human Rights, the EU and the UK: Confronting a Heresy’ (2013) 24 (4) The European Journal of International Law, 1157

 

 

Books and Chapters in Books

 

Alisigwe H.C., ‘Regionalism as a tool for International Economic Development’ in USF Nnabue (ed.) Themes on Law of Development (Faculty of Law, Owerri, 2017)

Appadorai A., The Substance of Politics (Oxford: Oxford University Press, 1975)

Chaturvedi A. K., Dictionary of Political Sciences (Academic Publishers, New Delhi, 2006)

Cramston M., ‘Human Rights: Real and Supposed’ in Raphael (ed) Political Theory and the Rights of Man, (Indiana University Press, Bloomington, 1967)

Dakyen I. C., ‘The Nigerian Judicial System: Problems, Challenges and Prospects’ in Timothy A. Oyeyipoet.al (Ed.) Judicial Integrity, Independence and Reform (Snaap Press Ltd, Enugu, 2006)

Dowrick F. E., (ed) Human Rights, Problems, Perspectives and Texts, (Westmead, England, 1979)

Dugard S., International Law (4th Edition, Juta and Company Ltd, Capetown, 2011)

Elegido J. M., Jurisprudence, (Spectrum Books, Ibadan, 1994)

Enabulele A. and Bazuaye B., Teachings on Basic Topics on Public International Law, (Ambik Press, Benin, 2014)

Eri U., “The Role of The Judiciary in Sustaining Democracy in Nigeria” In Timothy A. Oyeyipoet.al (Ed.) Judicial Integrity, Independence and Reform (Snaap Press Ltd, Enugu, 2006)

Eze O., Human Rights in Africa: Some Selected Problems (NIIA, Lagos, 1984)

Falana F., ECOWAS Court: Law and Practice (Legaltex Publishing Company, Lagos, 2010)

Garner B. A., (Ed) Black’s Law Dictionary(8th Edition, West Publishing Co. Minnesota, 2004)

Gasiokwu M. O. U., Human Rights: History, Ideology and Law (Fab Anieh Ltd, Jos, 2003)

Gilbert Law Dictionary (Gilbert Law Summaries, Chicago, 1997)

Ladan M. T., Introduction to ECOWAS, Community Law, Integration, Migration, Human Rights, Access to Justice, Peace and Security (ABU Press, Zaria, 2009)

Mish F. C., (Ed.) Webster Ninth New Collegiate Dictionary (Merriam-Webster, Massachusetts, 1990)

Murthy B. S., International Relations and Organisations (Eastern Books Company, New Delhi, 1991)

Nwabueze B. O., Judicialism and Good Governance in Africa (Nials, Lagos, 2009)

Nwabueze B. O., Judicialism inCommonwealth Africa (C. Hurst and Company, London, 1977)

Nwabueze B. O., The Judiciary as The Third Estate of The Realm (Gold Press Ltd, Ibadan, 2007)

Orwa D.K., “Theories of International Relations” in OJ Ojo, et al, African International Relations (Longman, London, 1985)

Palmer N.D., and Perkins H. C., International Relations (3rd Edition, AITBS Publishers, Delhi, 2010)

Rehman J., International Human Rights Law (Pearson, London, 2010)

Shelton DL., ‘An Introduction to the History of International Huma Rights’ (2007) George Washington Law faculty Publications and Other Works, 1052.

Shaw M. N., International Law (7th Edition, Cambridge University Press, Cambridge, 2014)

Viljoen F., International Human Rights Law in Africa (2nd Edition, Oxford University Press, Oxford, 2012)

Wehmeier S., (ed) Oxford Advanced Learners Dictionary(7th Edition, Oxford University Press, Oxford, 2006)

 

 

 

Table of Cases

 

Cudjoe V Ghana- Communication 221/98, Twelfth Annual Activity Report

Diallo case, (Preliminary objections) Guinea V DRC) 2007 ICJ Reports

Elettronica Sicula (ELSI) Case 1989 ICJ Reports

Falana and Anor. V Republic of Benin & 14 ORS (2010) CCJLR (Pt. 3) 119

Finnish Ships Arbitration Case (934) 3 UNRIAA

Interhandel (Switzerland V USA) Case, ICJ Reports

 

 

Table of Legislation

 

African Charter on Human and Peoples’ Rights

European Convention on Human Rights

Inter-American Convention on Human Rights

Optional Protocol 1 to the International Covenant on Civil and Political Rights

Vienna Declaration and Programme of Action

 

 

Thesis

 

Alisigwe H.C., Judicialism in International Law: The Pivots, Prospects and Challenges (Unpublished Ph.D.   Dissertation, Faculty of Law, Nnamdi Azikiwe University, Awka, 2016)

 

 

Conference Proceedings

 

Ohurogu C., “Non-Exhaustion of Local Remedy as A Distinctive Feature of the ECOWAS Community Court of Justice   Human   Rights Mandate” paper presented at an International Conference on PROTECTION OF HUMAN RIGHTS AS A FACTOR FOR PEACE BUILDING IN WEST AFRICA organised by the ECOWAS Court of Justice held at Bamako Mali from 18-20th April 2018

 

 

Websites

 

Busch A. E., ‘Judicialisms Cost to the Republic’ available on >http://ashbrook.org/publications/onprin-v11n2-busch/<

Caenegem RC, ‘A Note on Chapter 39 of Magna Carta’ (2014) available at >http://www.scielo.org.za/pdf/funda/v20n2/44.pdf<

Ohurogu C., “Non-Exhaustion of Local Remedy as A Distinctive Feature of the ECOWAS Community Court of Justice   Human   Rights Mandate” paper presented at an International Conference on PROTECTION OF HUMAN RIGHTS AS A FACTOR FOR PEACE BUILDING IN WEST AFRICA organised by the ECOWAS Court of Justice held at Bamako Mali from 18-20th April 2018

Ojwang J. B., “Judicial Ethics and Judges Conduct: The Complaint Mechanism” at Pp. 2-3 available at >http://kenyalaw.org/kl/index.php?id=1937<

Tanko I., “Judicialism and Judicial Process in Nigeria: What the Supreme Court Did; What the Supreme Court May Do” available at >http://nials-nigeria.org/PDFs?judicialism<

Waki A. M., “ECOWAS Court and the Promise of the Local Remedies Rule” available at >http://hrbrief.org/2009/11/ecowas-court-and-the-promise-of-the-local-remedies-rule/<

 

 



[1]  H.C Alisigwe, Judicialism In International Law: The Pivots, Prospects and Challenges (Unpublished Ph.D. Dissertation, Faculty of Law, Nnamdi Azikiwe University, Awka, 2016) P.1

 

 

[2] BO Nwabueze, Judicialism in Commonwealth Africa (C. Hurst and Company, London, 1977) 1.

[3]  In the political realm, society culminates into states on the subtlety of the distinction between society and state; see A. Appadorai, The Substance of Politics (Oxford University Press, Oxford, 1975) 13.

[4]  DKOrwa, ‘Theories of International Relations’ in OJ Ojoet al, African International Relations     (Longman, London, 1985) 1.

[5]  S Wehmeier (ed) Oxford Advanced Learners Dictionary(7th Edition, Oxford University Press, Oxford, 2006) 803.

[6]  Ibid, 791.

                [7] FC Mish (ed) Webster Ninth New Collegiate Dictionary (Merriam-Webster, Massachusetts, 1990) 653.

[8]  Ibid, 641.

[9]  BA Garner (ed) Black’s Law Dictionary(8th Edition, West Publishing Co. Minnesota, 2004) 862.

[10]Gilbert Law Dictionary (Gilbert Law Summaries, Chicago, 1997) 176.

[11]The term ‘judicialism’ is also gaining currency and acceptance among jurists and legal text writers, in discussing the adjudicatory process and institutions. See JB Ojwang, ‘Judicial Ethics and Judges Conduct: The Complaint Mechanism’ available at >http://kenyalaw.org/kl/index.php?id=1937<              accessed on 28/09/2018; AE Busch, ‘Judicialisms Cost to the Republic’ available on >http://ashbrook.org/publications/onprin-v11n2-busch/< accessed on 28/09/2018; B Nwabueze, Judicialism and Good Governance in Africa (Nials, Lagos, 2009); Justice Ibrahim Tanko ‘Judicialism and Judicial Process in Nigeria: What The Supreme Court Did; What The Supreme Court May Do’ available at http://nials-nigeria.org/PDFs?judicialism; accessed on 28/10/2012. B Nwabueze, Judicialism inCommonwealth Africa (note 2 above) 2.

[12] ICDakyen, ‘The Nigerian Judicial System: Problems, Challenges and Prospects’In TA Oyeyipoet.al (ed) Judicial Integrity, Independence And Reform (Snaap Press Ltd, Enugu, 2006) 331.

[13]Ibid.

[14] U Eri, ‘The Role of the Judiciary in Sustaining Democracy in Nigeria’ In TA                 Oyeyipoet.al (ed) (note 12 above) 174.

14 B Nwabueze, The Judiciary as the Third Estate Of The Realm (Gold Press Ltd, Ibadan, 2007) 3.

[16] JM Elegido, Jurisprudence (Ibadan: Spectrum Books, 1994) 287-288.

[17] MOU Gasiokwu. Human Rights: History, Ideology and Law (Jos, Fab Anieh (Nig) Ltd 2003) 1.

                  [18]M Cramston; ‘Human Rights: Real and Supposed’ in Rapheal (ed) Political Theory and the Rights of Man

                  (Indiana University Press, Bloomington 1967) 57.

[19]  MOU Gasiokwu. (n 17 above) 2 and 3.

[20] FE Dowrick, (ed) Human Rights, Problems, Perspectives and Texts, (Westmead, England, 1979) 8-9.

[21] MOU Gasiokwu, (n 17 above) 11.

[22] This calls to mind the Monist/Dualist Schools of Thought in International law.

[23] We are not by this unmindful of the intricate web between law and morality.

[24]OsitaEze, Human Rights inAfrica: Some Selected Problems (NIIA, Lagos, 1984) 5.

                  [25]OsitaEze,ibid. 1. This by no means denies its existence in Traditional African Societies which may be contemporaries of the Greek City States.

[26] Ibid

[27]RC Caeneggem, ‘A Note on Chapter 39 of Magna Carta’ (2014) available at >http://www.scielo.org.za/pdf/funda/v20n2/44.pdf< accessed 20 September 2018.

[28] DL Shelton, ‘An Introduction to the History of International Huma Rights’ (2007) George Washington Law faculty Publications and Other Works, 1052.

[29] As exemplified by most African countries.

[30] As exemplified by the African-American Civil Rights Movements.

 

[31] This was the fulcrum of the consensus expressed in the Vienna Declaration and Programme of Action wherein   all rights were declared indivisible. See UN DOC A/CONF 157/23, 12 July 1993.

[32]F. Viljoen, International Human Rights Law in Africa  (2nd Edition, Oxford University Press, Oxford,  2012)

6.

[33] O. Eze, (n 24 above)2.

[34]F Viljoen, (n 31 above) 6. However, protection as used in this work is suggestive of all the four obligation

to wit: Respect, Protect, Fulfill and Promote.

[35] HC Alisigwe, “Regionalism as a tool for International Economic Development” in USF Nnabue (ed.)

Themes on Law of Development (Faculty of Law, Owerri, 2017) P.; See also ND Palmer & HC Perkins,

International Relations (3rd Edition, AITBS Publishers, Delhi, 2010) 558.

[36]  AK Chaturvedi, Dictionary of Political Sciences (New Delhi: Academic Publishers, 2006) 263.

[37]  HC Alisigwe, “Impact of Regionalism on the Evolution of International Legal Norms” (2012) 3 JCCL, 253; Palmer and Perkins, (n 34 above) 558-559.

[38]   Within the context of this work, the terms “regionalism”, “regional organisation” includes a sub-regional

group/organisation under international law.

[39]   BS Murthy, International Relations and Organisations (Eastern Books Company, New Delhi, 1991) 229.

[40]   Especially is this so in the human rights field where the antagonism has engendered the discourse on Cultural

Relativism versus Universalism in terms of norms and standards.

[41]   This minimum standard constitutes the collective expression of humanity’s conscience and capture a shared

vision for a humane world. See F Viljoen, (n 31 above) 9.

[42]  S Dugard, International Law (4th Edition, Juta and company, Capetown, 2011) 341.

[43]  Ibid, 342; See also BH Weston, RA Lukes and KM Hnat, ‘Regional Human Rights Regimes: A Comparison

And Appraisal’ (1987) 20 Vanderbilt Journal of Transnational Law, 585.

[44]  These are The Council of Europe, The Organisation of American States and The African Union.

[45] A Williams, ‘The European Convention on Human Rights, the EU and the UK: Confronting a Heresy’ (2013) 24 (4) The European Journal of International Law, 1157.

[46]   S Dugard, (n 41 above) 342.

[47]   Abbreviation for Economic Community of West Africa States.

[48]   These are Benin, Burkina Faso, Cote D’Ivoire, The Gambia, Ghana, Guinea Bissau, Liberia, Mali, Mauritania

Niger, Nigeria, Senegal, Sierra Leone, Togo and Cape Verde. For further details, see F Falana, ECOWAS

Court: Law and Practice (Legaltex Publishing Company, Lagos, 2010) 1; MT Ladan,  Introduction to

ECOWAS, Community Law, Integration, Migration, Human Rights, Access to Justice, Peace and Security

(ABU Press, Zaria, 2009) 1.

[49]    Falana, Ibid, 3; Ladan, Ibid, 1.

[50] These institutions include (a) The Authority of Heads of States and Government (b) The Council of

Ministers (c) The Community Parliament (d) The Economic and Social Council (e) The Community Court

of Justice (f) The Executive Secretariat (g) The Fund for Co-operation, Compensation, and Development

(h) Specialized Technical Commission, and (i) any other Institution that may be established by the Authority.

[51] Also referred to as the principle of Supra-nationality. It simply means a situation wherein an international

Institution is invested with the plenitude of powers to take binding decisions on sovereign states either

generally, or in specific areas of state activities

[52]Immediate Effect obviates the need for the transformation of Community norms to the national level and

for any procedure involving their inclusion into national law, while Direct Effects means that the rules

of Community law must deploy their full effects in a uniform manner in all member states from their date

of entry into force and all through their period of validity.  See alsoLadan, (n 47 above) 8.

[53] See Article 4(g) of the Revised Treaty

[54]See Article 6(e) of the Revised Treaty.  It was originally known as the Tribunal of the Community but was renamed   the Community Court vide Protocol   A/P1/7/91.   The Revised ECOWAS Treaty merely strengthened it by entrenching the court as part of the institutional framework   of the organization. For detailed discourse on the institutional structure, and   jurisdiction of the court, see HC Alisigwe, (n 1 above) 324- 344; See also A.Enabulele and B Bazuaye, Teachings on Basic Topics on Public International Law, (Ambik Press, Benin, 2014) 334-343.

[55]See Article 9(4) of Supplementary Protocol A/SP.1/O5.

[56]Ladan, (n 47 above) 268.

[57]Ladan, (n 47 above) 268.

[58]Ibid.

[59]Ibid.

[60] ECOWAS Declaration of Political Principles, Declaration A/DCL.1/7/91 adopted by the 14th Session of the

Authority of Heads of State and Government. See also Falana, (n 47 above)56;Ladan, (n 47 above) 268.

[61]This rule is cognizable both at customary international law and under Treaties. See the Elettronica Sicula

(ELSI) Case 1989 ICJ Reports,15 at 52.

[62] Domestic Remedies is also used interchangeably with the term “Local Remedies”.

[63] Article 56 (5) of the African Charter.

[64]Article 14(2) ILC Draft article.

[65] See Diallo case, (Preliminary objections) Guinea V DRC) 2007 ICJ Reports para.47; Cudjoe V Ghana

Communication 221/98, twelfth Annual activity report (1998-199); See also Ohurogu ,op.cit.P. 21.

[66] MN Shaw, International Law (7th Edition, Cambridge University Press, Cambridge, 2014) 199.

[67]Ibid; See also SDugard, (n 41) 295.

[68] Article 35 European Convention on Human Rights; Article 46 Inter-American Convention on Human Right;

Article 5 Optional Protocol 1 ICCPR; See also the Interhandel  (Switzerland V USA) Case , ICJ Reports

1958, 6 and 27.

[69]  Shaw, op.cit p.596.

[70]  (2009) CCJLR (Pt. 2) 58.

[71] See, Falana& Anor V Republic of Benin& 14 Ors (2010) CCJLR (Pt. 3) 119.

[72] For a Seminal work in support of the ECOWAS Court’s position on non-exhaustion of domestic remedies, see      C Ohurogu “Non-Exhaustion of Local Remedy As A Distinctive Feature of the ECOWAS Community Court of Justice   Human   Rights Mandate” paper presented at an International Conference on PROTECTION OF HUMAN RIGHTS AS A FACTOR FOR PEACE BUILDING IN WEST AFRICA organised by the ECOWAS Court of Justice held at Bamako Mali from 18-20th April 2018; cfLadan, op.cit, 286-287.

[73] C Ohurogu, (n 71 above) 4; AM Waki, “ECOWAS Court and the Promise of the Local Remedies Rule” inOhurogu (n 71).

[74] Ibid; See also Finnish Ships Arbitration Case (934) 3 UNRIAA.

[75]C Ohurogu, (n 71 above) 14.

[76] J Rehman, International Human Rights Law (Pearson, London, 2010) 14.

[77]C Ohurogu, (n 71 above) 18.