Law | Center for Community Law https://backup.cfcomlaw.com/category/education/law/ Center For Community Law Fri, 21 Feb 2025 18:25:54 +0000 en-US hourly 1 https://wordpress.org/?v=6.9.4 https://backup.cfcomlaw.com/wp-content/uploads/2022/04/COMMUNITY-LAW_free-file4-150x113.png Law | Center for Community Law https://backup.cfcomlaw.com/category/education/law/ 32 32 President Boakai Reinstates Liberia’s Electoral Chief https://backup.cfcomlaw.com/president-boakai-reinstates-liberias-electoral-chief/ https://backup.cfcomlaw.com/president-boakai-reinstates-liberias-electoral-chief/#respond Fri, 21 Feb 2025 18:24:50 +0000 http://backup.cfcomlaw.com/?p=779 President Boakai Reinstates Liberia’s Electoral Chief
Center for Community Law

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President Boakai Reinstates Liberia’s Electoral Chief
Center for Community Law

By Paul Ejime*
President Joseph Boakai has reinstated Madam Davidetta Browne-Lansanah as Chairperson of Liberia’s National Elections Commission (NEC) one month after her “indefinite” suspension from the post.
According to an Executive Mansion statement on 15 January 2025, her suspension had followed an investigation into recent protests by aggrieved NEC workers regarding “administrative decisions taken by the NEC Chairperson without proper consultation.”
Madam Browne-Lansanah was accused of “unilaterally announcing the closure of the NEC office for one month and dismissing 25 employees without the knowledge or approval of the NEC Board of Commissioners, as required by law.”
However, in a vindication of Madam Browne-Lansanah, a new government statement on 20th February said the lifting of the suspension was “with immediate effect,” following a high-level meeting on 18th February “attended by the NEC Board of Commissioners, the ECOWAS Ambassador to Liberia, and senior officials of the Ministry of State for Presidential Affairs.”
In administrative language, an indefinite suspension of a public servant is usually followed by dismissal, but informed sources said, “nothing untoward or unprofessional” was found against Madam Madam Browne-Lansanah.
According to the sources, “some politicians within the corridors of power might have tried to use NEC insiders to undermine the authority of a woman described as “rugged, strong-willed and independent-minded.” 
Madam Browne-Lansanah received local and international praise for delivering a successful and one of Liberia’s most credible and transparent presidential and legislative elections in October 2023.
She was reported to have clashed with some commissioners last year over administrative matters resulting in the dismissal of some employees for “gross insubordination.”
This led to protests by some employees at the NEC headquarters in Monrovia.
Under the Liberian constitution, the NEC chairperson’s role is tenured, and Madam Browne-Lansanah’s term runs out in two years.
Liberia’s Rule of Law Legislative Caucus had described her suspension as “unconstitutional,” affirming that “NEC’s independence, protected under the Constitution, is vital to safeguarding democracy” in the country.
“The Supreme Court of Liberia has ruled unequivocally that the suspension of tenured officers is tantamount to their removal. Such removals are constitutionally permissible only through the impeachment process, which involves, the National Legislature,” the Caucus added.
It urged the “President to rescind (his) decision and allow constitutional processes to prevail,” adding: “The erosion of institutional independence risks plunging the country into uncharted territory and threatens the very essence of our democracy.”
To his credit, President Boakai has allowed the rule of law to prevail, with Madam Browne-Lansanah’s reputation intact.
In lifting the suspension, the president expressed the hope that the “uncertainty surrounding the NEC has been addressed, clearing the way for the smooth conduct of the upcoming Nimba County by-election to fill the vacancy left as a result of the passing of Senator Prince Yormie Johnson.”
The NEC was part of the 2003 Comprehensive Peace Agreement that ended Liberia’s14-year civil war. It replaced the 1986 Elections Commission as “an autonomous government institution, independent of any branch of government with powers to run elections in Liberia.”
According to Chapter 2, Section 2.1 of the New Elections Law of 2014, the NEC “shall be under the direction and management of seven (7) Commissioners appointed by the President of Liberia, who shall appoint one of them as Chairman and another as Co-Chairman. All of the appointments shall be subject to the consent of the Senate.”
Madam Browne-Lansanah is the fifth NEC Chairperson. In 2011, one of her predecessors, James Fromayan was forced to step down after being accused of bias by then-opposition leader George Weah.
The same George Weah, as President, appointed Madam Browne-Lansanah as NEC Chair in April 2020 and lost his re-election bid in the 2023 elections conducted by her.
A veteran broadcast journalist with a master’s degree in public administration and bachelor’s degrees in political science and public administration, Madam Browne-Lansanah also boasts some career experience working in the UN system before joining NEC 10 years ago as a commissioner.
She served as Co-Chair and Acting Chairperson before assuming the substantive position of Chairperson in 2020, pledging to “strengthen NEC’s core values of independence, integrity, professionalism and consistency.”
At a time when the ECOWAS region is grappling with the resurgence of military incursions in politics, badly run elections and three member States on the verge of quitting the 15-nation organisation, Liberia, Senegal and lately Ghana, hold up hope for survival of electoral democracy
*Ejime is a Global Affairs Analyst and Consultant on Peace & Security, and Governance Communication*

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In Defence of Judicial Authority in Nigeria https://backup.cfcomlaw.com/in-defence-of-judicial-authority-in-nigeria/ https://backup.cfcomlaw.com/in-defence-of-judicial-authority-in-nigeria/#respond Sun, 16 Feb 2025 22:08:58 +0000 http://backup.cfcomlaw.com/?p=771 In Defence of Judicial Authority in Nigeria
Center for Community Law

By Chidi Anselm Odinkalu*

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In Defence of Judicial Authority in Nigeria
Center for Community Law

By Chidi Anselm Odinkalu*

“The judiciary… has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither force nor will, but merely judgment.” – Alexander Hamilton, The Federalist, No. 78.
In January 1983, a suspicious fire incident did considerable damage to NECOM House, the high-rise building in Lagos that housed the headquarters of the country’s telecommunications monopoly, then known as the Nigerian Telecommunications Limited, NITEL. Alhaji Shehu Shagari was in power as elected civilian president. 
The belief was widespread that the fire was the handiwork of “senior officials in the building (who) had been under investigation for fraud and embezzlement that police estimated at more than US$100 million.” 
The NECOM House fire was another in a succession of high-profile incidents with a whiff of arson affecting public infrastructure in the country. The previous month, another fire had consumed the Ministry of External Affairs, reportedly “set by accountants who were under investigation.” 
Casualty count from the fire incident was substantial but uncertain. 
By some coincidence, the fire occurred the week after the fire-fighting team at the facility had been inexplicably withdrawn. The response of the federal authorities was even more inexplicable. 
The 21 persons whom they chose to prosecute in connection with the incident included Ray Ekpu, at the time a senior journalist and columnist, whose crime appeared to be that he published an article after the incident suggesting that it was arson. 
Also charged were Adamu Akokhia, then-Chief Fire Officer of the Federation; and Saidu Garba, the Divisional Fire Officer responsible for the building. While they were suspects in pending criminal proceedings, the federal authorities also suspended Adamu Akokhia and Saidu Garba from work.
Saidu Garba sued at the High Court of Lagos State challenging his suspension. While his case was still pending, the Permanent Secretary in the Ministry of Internal Affairs, John Oyegun, issued a letter sacking him from the public service. 
Informed of this development, the presiding judge, Yahaya Jinadu, summoned John Oyegun to appear before him and explain why he should not be held in contempt of court. The judge subsequently found Mr. Oyegun guilty of contempt, cautioned him and ordered him to withdraw the letter of termination issued to Saidu Garba while his case was pending.
Despite the forbearance of the court, Mr. Oyegun failed to comply. On 3 August 1984, the court ordered his lawyer to secure compliance by his client with the order or cease participation in the proceedings until he complied. 
By this time, Major-General Muhammadu Buhari was in his eighth month in power as military ruler, having overthrown Shagari.
Five days later, on 8 August, then Chief Judge of Lagos State, Adetunji Adefarasin, summarily withdrew the case file from Yahaya Jinadu and reassigned it to himself, claiming that he did so at the request of the trial judge. Yahaya Jinadu denied ever having made such a request to the Chief Judge.
While Yahaya Jinadu was on pilgrimage to Mecca shortly thereafter, the Advisory Judicial Committee (AJC), then chaired by Chief Justice Sodeinde Sowemimo (the same one who infamously convicted Obafemi Awolowo two decades earlier), constituted a committee “that curiously condemned his actions and asked him to make written and verbal apologies” to, among others, the federal attorney-general, the President of the Court of Appeal, and the Chief Judge of Lagos State. Unwilling to abide an order which he characterised as “humiliation and disgrace of the judiciary”, Yahaya Jinadu served the statutory sixty-day notice of his intention to resign as a judge. In response, the military regime terminated his judicial career summarily.
For being acutely aware of the duty to conserve the currency of judicial authority and being prepared to defend that, Yahaya Jinadu paid a heavy price with his career. Those who traduced him set in motion a deadly corrosion of judicial authority whose inter-generational consequences today endanger the very foundations of both the institution and the country.
Two contemporaneous events this past week dramatized how badly so. 
Addressing judges at the beginning of the week at a continuing judicial education event in Abuja, the Federal Capital, Chief Justice of the Federation, Kudirat Kekere-Ekun, complained about deepening public distrust of the judiciary, reminding her colleagues that “it is not enough to be impartial; we must also be seen to be impartial. The perception of bias or impropriety can be as damaging as the reality itself.”
At about the same time as the Chief Justice uttered them, these sentiments were on trial at another end of town. The Federal High Court in Abuja was the venue of the now viral contretemps between Nnamdi Kanu, self-proclaimed leader of the Indigenous People of Biafra (IPoB), on the one hand; and the presiding judge, the lead prosecutor, and even his own team of lawyers, on the other. If anything was more troubling than the conduct of Mr. Kanu in that outing, it was the self-inflicted lack of judicial authority to firmly put a stop to it.
To be sure, there are ample provisions in the Administration of Criminal Justice Act (ACJA) empowering courts to preserve their authority or act against the disruption of their proceedings. A judge for a quarter of a century and a state attorney-general before that, the one charge that cannot possibly be made against the presiding judge in this case is inexperience. So, why was the court, nevertheless, so craven? 
On 24 September 2024, Justice Binta Nnyako had ruled in respect of the same proceedings concerning Mr. Kanu that: “The root of adjudication is confidence. The defendant has no confidence in this court.
Consequently, I hereby recuse myself from this trial and hereby remit the case file to the Chief Judge for further necessary action.” Three weeks later, it was reported that the Chief Judge decided administratively to overrule the trial judge’s recusal and return the case file to her.
There are, however, two problems with this decision.
First, as a matter of law, the Chief Judge may be a first among his peers but he is no paramount chief at large. His powers do not extend to administratively overruling a written decision of a judge sitting as such. Second, as a practical matter, a judge who by her own hand rules to recuse herself from proceedings after affirming cratered confidence in her handling of the proceedings cannot allow herself to be bullied or inveigled into attempting to ingest her judicial vomit.
The coincidence of these two developments almost assuredly denied the court of its constitutive authority, making it a passenger in that piece of execrable judicial theatre.
The standard under the 1999 constitution is that a court shall be constituted “in such a manner as to secure its independence and impartiality.”
A judge cannot return to claim impartiality and independence after having gone on record to recuse herself for having lost the confidence of the defendant. A forum in that setting hardly deserves the appellation of a court.
Nigeria’s 1999 constitution speaks loosely of “judicial power”. The traditional tools of power in this sense are coercive or transactional. As a fact, the judiciary lacks both. Its currency is neither arms nor money. Rather it is reason and authority.
To the extent that it is possible to salvage anything from the wreckage of those proceedings in that Federal High Court last week, it is the importance of holding the feet of the judiciary to fire when any judge – no matter how high – acts in a manner that casually endangers that authority. The costs of not doing so are incalculable.
*A lawyer and teacher, Odinkalu can be reached at chidi.odinkalu@tufts.edu*

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African Court on Human and Peoples’ Rights to Hear Landmark Case Between DRC and Rwanda https://backup.cfcomlaw.com/african-court-on-human-and-peoples-rights-to-hear-landmark-case-between-drc-and-rwanda/ https://backup.cfcomlaw.com/african-court-on-human-and-peoples-rights-to-hear-landmark-case-between-drc-and-rwanda/#respond Tue, 11 Feb 2025 19:01:23 +0000 http://backup.cfcomlaw.com/?p=757 African Court on Human and Peoples’ Rights to Hear Landmark Case Between DRC and Rwanda
Center for Community Law

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African Court on Human and Peoples’ Rights to Hear Landmark Case Between DRC and Rwanda
Center for Community Law

A historic legal battle is set to unfold as the African Court on Human and Peoples’ Rights (AfCHPR) prepares to hear a crucial case between the Democratic Republic of Congo (DRC) and the Republic of Rwanda. Scheduled for February 12 and 13, 2025, at the Court’s seat in Arusha, Tanzania, this case marks a significant milestone in the pursuit of justice and accountability in Africa.
Background of the Case
On August 21, 2023, the Democratic Republic of Congo (Applicant State) filed an application against Rwanda (Respondent State), citing severe human rights violations. The claims are based on multiple legal frameworks, including:
The African Charter on Human and Peoples’ Rights
The Protocol to the African Charter on Women’s Rights
The African Charter on the Rights and Welfare of the Child (ACRWC)
The International Covenant on Civil and Political Rights (ICCPR)
The International Covenant on Economic, Social and Cultural Rights (ICESCR)
At the core of the allegations are human rights violations linked to the ongoing armed conflict in eastern DRC since 2021. The conflict, involving the DRC’s armed forces and the M23 rebel group, has been exacerbated by alleged backing from Rwanda.
Key Allegations
The DRC contends that Rwanda’s actions have led to:
Massacres and occupation of several territories
The displacement of over 520,000 people
A cholera epidemic due to poor sanitary conditions in displaced populations
The destruction of schools, depriving 20,000 children of education
Widespread damage to infrastructure, including power facilities, homes, health centres, and agricultural land
The harbouring of individuals accused of serious crimes, despite international arrest warrants issued against them
In response, the DRC is seeking a court ruling that holds Rwanda accountable, orders the withdrawal of its alleged support for M23, and mandates reparations for victims and damages caused by the conflict.
Rwanda’s Defence and Court Proceedings
Rwanda has challenged the Court’s jurisdiction over the matter and questioned the admissibility of the case. Consequently, the upcoming public hearing will focus on determining whether the AfCHPR has the authority to hear the case and whether the application meets the necessary legal criteria.
This hearing is poised to set a precedent for interstate cases before the African Court, with potential ramifications for regional stability and international law enforcement in Africa.
Why This Case Matters
The outcome of this case could shape the future of conflict resolution and human rights enforcement on the continent. It highlights the role of regional judicial bodies in holding states accountable for their actions and ensuring justice for affected populations.
A Rare Interstate Dispute Before the African Court
This case stands out as one of the few instances of interstate disputes between African Union member States. As a result, the jurisdiction the African Court is called upon to exercise in this matter extends beyond its usual human rights jurisdiction, which typically involves disputes between individuals and states.
The case offers a unique opportunity to observe the Court’s interpretation of general international law principles, which are expected to play a crucial role in this proceeding. Notably, this case echoes the previous Armed Activities on the Territory of the Congo case (New Application: 2002) brought by the Democratic Republic of Congo (DRC) against Rwanda before the International Court of Justice (ICJ). In that instance, the ICJ declined jurisdiction, as none of the jurisdictional grounds relied upon by the DRC were sufficient to establish the Court’s authority over Rwanda.
This new application before the African Court will be closely watched, as it may set an important precedent for how interstate disputes are handled within Africa’s legal framework.
Stay tuned for further updates as the African Court navigates this critical case that could redefine interstate litigation in Africa.

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Jittery Junta Leaders and Compelling Needs for ECOWAS Unity https://backup.cfcomlaw.com/jittery-junta-leaders-and-compelling-needs-for-ecowas-unity/ https://backup.cfcomlaw.com/jittery-junta-leaders-and-compelling-needs-for-ecowas-unity/#respond Wed, 29 Jan 2025 09:07:40 +0000 http://backup.cfcomlaw.com/?p=742 Jittery Junta Leaders and Compelling Needs for ECOWAS Unity
Center for Community Law

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Jittery Junta Leaders and Compelling Needs for ECOWAS Unity
Center for Community Law


By Paul Ejime*
 
Ahead of the 29 January 2025 deadline for their self-imposed exit from ECOWAS, the junta leaders of Mali, Burkina Faso and Niger, the Alliance of Sahel States, AES, have become jittery, deploying every trick, including disinformation, misinformation and blackmail to deflect blame for the inevitable consequences and uncertainty of their military adventure.
 
ECOWAS leaders at their last Abuja summit in December 2024 warned the three countries that having served notice of their withdrawal from the regional bloc in January 2024, the separation will become effective 12 months later, according to the regional bloc’s relevant protocol. This is despite the grace period of six months mentioned in the summit Communique. After receiving official correspondence from the ECOWAS Commission on the summit’s decision, the juntas have gone into propaganda overdrive.
 
For context, Niger is a country that has benefitted and continues to reap from Nigeria’s generosity including infrastructural development such as the rail system, electricity supply and new road networks. When ECOWAS leaders toyed with the idea of using military force to restore constitutional order in Niger following the August 2023 military coup led by Gen. Abdourahamane Tchiani, Nigerians were among the strongest opponents of the move arguing that seven Nigerian states shared borders and affinity with Niger.
 
It is therefore ludicrous for Tchiani to be accusing Nigeria of collaborating with France to destabilise Niger. In reality, the three AES countries are landlocked, and the Tchiani-led junta has fallen out with authorities in Benin Republic, a neighbouring country. In addition to their border dispute, Niger no longer has access to the Benin port for its imports and this has resulted in severe hardship in Niger, charactised by scarcity of essential goods, run-away inflation, high unemployment, a dysfunctional healthcare system and avoidable deaths in hospitals.
 
Instead of addressing their domestic existential threats, coupled with criticism of human rights violations and intolerance of dissent, Tchiani and his colleagues in Mali and Burkina Faso are blaming outsiders for the humanitarian crisis they brought on their people.
 
ECOWAS might have made a mistake by attempting to use military force on Niger without exhausting other available options. However, military rule is an aberration in today’s World and the organisation has since changed tact, using diplomacy instead, to engage its four member States under military rule, including Guinea.
 
Yet, the three junta leaders are unyielding. Meanwhile, the appalling security situation, one of the reasons the military rulers gave for toppling the civilian governments has not improved. Armed groups are still inflicting heavy casualties on civilians and soldiers in the three countries.
 
The AES juntas claim to detest France, but their countries are still members of the Francophone West African Economic and Monetary Union, UEMOA, supported by Paris. They are also still using the franc CFA currency, controlled by the French Treasury.
 
It is interesting that after agreeing on new national passports that will not bear the ECOWAS insignia, the junta leaders have announced that ECOWAS citizens can visit their three countries without a visa, which is consistent with the ECOWAS 1979 free movement protocol, a case of eating their cake and having it.
 
ECOWAS at 50 this year, cannot claim to be perfect. One of its major problems is leadership at the national and regional levels. But just as a chain is as strong as its weakest link, an organisation is only as good/effective as its weakest member.
 
ECOWAS evolved from the ashes of military dictatorships, however, in the last 12 years, the malaise of sit-tight syndrome, state capture, indiscriminate altering of national constitutions, election rigging, stifling of opposition and personalisation of democracy” crept in.
 
Critics now see the regional economic bloc once praised for its track record in conflict management and resolution as a club of self-serving leaders lacking the political will to end “political or constitutional coups,” which are as dangerous if not deadlier than military coups. But the solution is not in more coups, civilian or military. Urgent collective and deliberate measures are required to arrest the slide in the interest and benefit of community citizens in the “ECOWAS of People”.
 
The statement credited recently to the Togolese Foreign Minister Robert Dussey to the effect that Togo could join the AES countries, requires further interrogation since the Togolese President Faure Gnassingbe and his Senegalese counterpart Diomaye Faye are the ECOWAS envoys negotiating rapprochement with the AES group.
 
Is Faure running with the hare and hunting with the hound? Last year, his government carried out controversial changes to Togo’s constitution and conducted widely criticised legislative elections, believed to pave the way for his tenure elongation in violation of regional protocols. Togo has covertly offered the AES countries access to its Lome port and recently, all four countries had a joint military exercise. Could Togo’s reported plan to join the AES group, Faure’s ploy to pre-empt ECOWAS’ attempt to question his dodgy democratic credential Faure’s political ambition?
 
There is a strong anti-French sentiment in Francophone African countries linked to controversial colonial agreements including defence/military pacts, which the AES leaders are capitalising on for their populist dispositions. The agreements have nothing to do with ECOWAS, so it begs the question that the AES leaders are blaming the organisation for them.
 
To come clean of accusations of foreign influence/interference, ECOWAS must assert its independence and put its house in order but not succumb to blackmail. The organisation should innovate and reinvent itself to withstand emerging threats from the geopolitical and geostrategic shifts in international relations ecosystem.
 
ECOWAS leaders should be pulling together, including reaching an agreement on the term limit for the President/Prime Minister in Member States, to stop the tenure elongation syndrome haemorrhaging the organisation. They should deliver good governance and muster the political will to end political or constitutional coups and other causes/enablers of military coups.
 
Ghana’s new President John Mahama has named a Special Envoy to the AES countries. The Ghanaian leader should be encouraged to work within the ECOWAS system to prevent a further weakening of the organisation.
 
Also, Nigeria as the “big brother, regional power” and the current ECOWAS Chair, should step up to the plate and work with other leaders to champion the rescue and repositioning of ECOWAS.
 
Membership of a united ECOWAS provides unlimited opportunities for regional cooperation and development. ECOWAS/AES’ separation will unleash potential negative consequences on the population of the AES countries, including massive loss of jobs from the closure of Community institutions and humanitarian food reserve facilities. Also, there will be an end to the benefits of regional free trade scheme and the immediate recovery of more than US$273 million at the ECOWAS Bank for Investment and Development (EBID) loans and liabilities.
 
A sudden exit from the ECOWAS Inter-Governmental Action Group against Money Laundering (GIABA), will also make the AES countries vulnerable to the global Finance Action Task-force (FATF) sanctions, plus an end to regional security cooperation, shared intelligence and coordinated joint military operations, which will make the countries easy targets for more deadly attacks by terrorist and armed insurgency groups.
 
Addressing the media in Abuja on Monday 27 January, the Head of EU Delegation to Nigeria and ECOWAS, Ambassador Gautier Mignot urged ECOWAS to reconsider its decision on the AES group.
 
“It is a decision that we regret because we strongly support West African integration. Splitting does not seem to us a good idea,” said the envoy, who cited the EU’s experience with Brexit, based on negotiation and dialogue.
 
The junta leaders should also take a cue from the EU official’s counsel, bearing in mind that they will be held accountable for the consequences of dragging millions of their compatriots into socioeconomic catastrophe and political uncertainty.
 
ECOWAS is only demanding that they respect regional protocols and honour their countries’ obligations and commitment to democratic principles instead of sticking to endless opportunistic political transition programmes designed for their self-perpetuation in power.
 
It is within the rights of AES nations to associate or pursue common goals, but not necessarily by quitting ECOWAS. Organisations such as the Mano River Union; Lake Chad Basin Commission/Authority, the Zone of Prosperity and UEMOA, are all members of ECOWAS.
 
*Ejime is a Global Affairs Analyst and Consultant on Peace & Security, and Governance Communications*

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The Human and Economic Costs of Awaiting Trial https://backup.cfcomlaw.com/the-human-and-economic-costs-of-awaiting-trial/ https://backup.cfcomlaw.com/the-human-and-economic-costs-of-awaiting-trial/#respond Thu, 23 Jan 2025 19:54:29 +0000 http://backup.cfcomlaw.com/?p=733 The Human and Economic Costs of Awaiting Trial
Center for Community Law

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The Human and Economic Costs of Awaiting Trial
Center for Community Law

The Centre for community law has instituted an action at the ECOWAS Community Court of Justice seeking several declarations from the court regarding the seeming indiscriminate and unreasonable use of awaiting trial to remand accused persons in custody in Nigeria.
Relying on several international instruments, the Centre’s main arguments are that awaiting trial breaches the several fundamental rights of the detainees, principally the right to presumption of innocence, which it grossly breaches in respect of those detainees who spend longer time in custody than they would have spent had they been tried and convicted for the offence for which they were charged.
Highlighting the report recently released by Nigerian Correctional Service, termed “the Summary of Inmate Population by Convict and Awaiting Trial Persons as at 23rd December 2024 Total Inmate Population”,  the Centre argues that the use of awaiting trial to detain accused persons who are entitled to bail is a drain on the resources of the Nation in two ways. The first is that the budgetary allocation, which is grossly inadequate in the first place, for the welfare of the inmate is a clear misappropriation of resources that should have been used for developmental purposes. The second is that the economy, and indeed the rest of the population, would be denied the contributions of the detainees to the economy during the period of incarceration and even when they are eventually released, as they may not ever recover from the trauma of incarceration for the rest of their live, especially where they were wrongly accused.
For context, Nigerian Correctional Service “Summary of Inmate Population by Convict and Awaiting Trial Persons as at 23rd December 2024 Total Inmate Population” was revealed that:
The total prison population is (Seventy        Nine Thousand, Two Hundred and Thirty Seven (79,237) inmates;
  Out of (a) above, convicted inmates are only twenty six thousand, seven hundred and eighteen (26,718) inmates;
Out of (a) above,  awaiting trial inmates are  a whopping  Fifty Two Thousand, Five Hundred and Nineteen (52,519)  inmates.
Going by (a) to (c) above, the percentage of convicted inmates is 34% while that of are awaiting trial is 66%.
In the court processes signed by Benjamin O Ojumah, Esq of Pristinus Solicitors, Benin City, the Centre seeks, among others, a  declaration that the actions of the Defendant and its agents in incarcerating accused persons without trying them within a reasonable time is a violation of the treaty obligations of the Respondent. It also seeks a declaration that Nigeria is in violation of its duty to prevent torture and  to provide good governance for the people who are deprived of essential services to the tune of money used to maintain, in prison custody, individuals who should not be in prison but being on bail should be contributing their quota to economy of the Nation, are incongruous to the treaty obligations of the respondent. This bears in mind that many of the awaiting trial inmates are eventually discharged and acquitted but sometimes after they have spent a longer time in prison than the length of custodial punishment prescribed for the offence for which they are remanded.

@centre for community law

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Celebrating 50 Years of ECOWAS: A Jubilee of Unity and Progress? https://backup.cfcomlaw.com/celebrating-50-years-of-ecowas-a-jubilee-of-unity-and-progress/ https://backup.cfcomlaw.com/celebrating-50-years-of-ecowas-a-jubilee-of-unity-and-progress/#respond Wed, 01 Jan 2025 23:46:14 +0000 http://backup.cfcomlaw.com/?p=712 Celebrating 50 Years of ECOWAS: A Jubilee of Unity and Progress?
Center for Community Law

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Celebrating 50 Years of ECOWAS: A Jubilee of Unity and Progress?
Center for Community Law

The ECOWAS Authority has announced grand plans to celebrate the 50th anniversary of ECOWAS with pomp and pageantry across all member states throughout 2025. The celebration will commence in Ghana and culminate in Togo.
The festivities will span across all member States, with a special focus on Nigeria, home to the ECOWAS headquarters and General Yakubu Gowon, the last living Founding Father.
The Heads of State and Government of fifteen West African countries established the Economic Community of West African States (ECOWAS) by signing the ECOWAS Treaty on May 28, 1975, in Lagos, Nigeria. The Treaty of Lagos was signed by the Heads of State and Government of Benin, Burkina Faso, Côte d’Ivoire, The Gambia, Ghana, Guinea, Guinea Bissau, Liberia, Mali, Mauritania, Niger, Nigeria, Sierra Leone, Senegal, and Togo. Its mission was to promote economic integration across the region. Cabo Verde joined the Bloc in 1977, bringing its membership to sixteen. However, Mauritania, the only Arabic-speaking member, withdrew in December 2000, reducing the membership to fifteen. Mauritania recently signed a new associate-membership agreement in August 2017.
The 1975 Treaty has since been replaced by the Revised Treaty of 1993, which reformed several aspects of the Bloc. Notably, it strengthened ECOWAS’s stance on human rights by incorporating the African Charter on Human and Peoples’ Rights into its legal system and reinforcing the ECOWAS Court.
Since its creation, ECOWAS’s membership has remained stable at fifteen, despite Mauritania’s exit. However, this stability is now threatened by the potential departure of Mali, Niger, and Burkina Faso from the Bloc this January.
ECOWAS has faced challenges in achieving its core aim of integration. Despite significant accomplishments, particularly in the area of free movement, ECOWAS citizens often feel disconnected from the Bloc due to its limited relevance in their daily lives.
Hopefully, this celebration—an undoubtedly costly venture—will focus on the people, with a concerted effort to sensitize them to the core values of ECOWAS.
Hopefully, it would usher in an era of renewed cooperation for unity and progress in all areas of its competence.

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Ghana 2024 Elections, ECOWAS and AES Juntas https://backup.cfcomlaw.com/ghana-2024-elections-ecowas-and-aes-juntas/ https://backup.cfcomlaw.com/ghana-2024-elections-ecowas-and-aes-juntas/#respond Sun, 15 Dec 2024 14:57:12 +0000 http://backup.cfcomlaw.com/?p=694 Ghana 2024 Elections, ECOWAS and AES Juntas
Center for Community Law

By Paul Ejime

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Ghana 2024 Elections, ECOWAS and AES Juntas
Center for Community Law

By Paul Ejime

Ghana has pulled off another feat in democratic consolidation after successfully conducting a ninth round of generally peaceful Presidential and Parliamentary Elections. While democratic elections have become a norm in the country, the 2024 General Elections were distinct in various aspects that challenged the resilience of democracy, yet, Ghanaians rose to the occasion
Forty-eight hours after the poll, the Electoral Commission (EC) announced processed results from 267 out of 276 constituencies, and declared former President John Dramani Mahama, candidate of the opposition National Democratic Congress (NDC), as the winner and President-elect with 56.55% of the votes against 40.61% scored by the out-going Vice President Mahamudu Bawumia, the presidential fag-bearer of the ruling New Patriotic Party (NPP).
Indeed, less than 24 hours from the close of balloting, Vice President Bawumia had telephoned President-elect Mahama to concede defeat.
Also, following the declaration of the official results by EC, out-going President Nana Akufo-Addo congratulated Mahama on “his decisive victory” and invited him to a meeting to initiate the transition process.
There was no rocket science to it, but a matter of political actors respecting the will of the people. The two dominant political parties had agents in almost all the more than 40,000 polling stations, who monitored process and relayed polling results to their party data system for parallel vote collation/tabulation.
Like in most elections, the run-up to Ghana 2024 was not without political tension, misinformation, disinformation, fake news and hate speech, culminating in violent incidents in some Regions/Districts, with at least one or two reported deaths and injuries.
Even after the results of the presidential race were announced, shootings, looting and destruction of public and private properties were still reported in some volatile regions. Police reported some arrests and promised prosecution of culprits.
Similar post-election violence is not uncommon in Ghana, but it reached a crescendo in the 2020 elections when eight people were killed.
Some critics believe that the “unsatisfactory” handling of the 2020 election killings and the lack of public confidence in some public institutions, might have contributed to the government’s defeat at the poll. The other factors include economic hardship, allegations of official corruption, nepotism and “political arrogance” exhibited by some public officials.
Also, artisanal illegal gold mining, locally called “galamsey,” and its negative environmental consequences (including degradation of water bodies and destruction of forest reserves) have become a major political issue, with the two major political parties trading allegations over complicity.
Equally concerning were the menace of violent extremism and vigilantism or the use of thugs/private security agents by politicians, despite the existence of the Anti-Vigilantism and Related Offences Act 999 of 1999.
The combined effects of the COVID-19 pandemic, which caused severe economic disruptions across the globe, currency fluctuation and the Russia-Ukraine conflict, which has impacted food security for many African countries, have left the Ghanaian economy reeling out of control amid high inflation and unemployment, especially among the youth. Also, the country’s debt crisis and engagement with the International Monetary Fund (IMF) for economic recovery might have played a significant role in the outcome of the elections.
Akufo-Addo and Mahama, who will become Ghana’s 13th President since the country’s independence from Britain in 1957, have now locked horns in four presidential battles with both emerging victorious on two occasions – (2012 and 2024 Mahama) and (2016 and 2020 Akufo-Addo).
The 2020 race produced a hung parliament with the two dominant parties having an equal number of MPs in parliament, and the opposition NDC producing the parliamentary Speaker for the first time in the country’s political history. The decision by four MPs to quit their parties and the Supreme Court’s order stopping the Speaker from declaring the MPs’ seats vacant had aggravated the political tension.
Ghana has 24 registered political parties. Thirteen (13) fielded presidential candidates, while fifteen (15) had candidates for the parliamentary elections, complemented by independents. Nonetheless, the ruling NPP and the opposition NDC remain the dominant parties, alternating control of political power three times in 32 years (2000, 2008 and 2016) and now in 2024.
According to the EC, 900,000 new eligible voters were added to the national voter’s register in 2024 bringing the total to 18,774.159 (15% higher than in 2020), in an estimated national population of 34.42 million.
In a marked departure from tradition, the 2024 political campaigns were more of a door-to-door affair than public rallies. The NDC’s stronghold is the Volta Region and parts of the North and Muslim community, while the NPP draws its majority following from the Akan ethnic group, mainly from the Ashanti and other Southern Regions.
Religion is not overly contentious in Ghana, but the 2024 poll tested the country’s religious tolerance. It was the first time in Ghana’s history that two candidates from the two major political parties, professing different faiths came from the same region, the North. Mahama is Christian and Bawumia a Muslim.
In the end, Mahama recorded a sweeping victory with a more than 1.5 million majority vote margin, the highest since 1992. There is no perfect election. However, Ghana has demonstrated that an electoral process, which is a multi-stakeholder responsibility is integral to the entrenchment of democratic culture, nurtured by strong and resilient institutions.
As the icing on the cake, Ghana, for the first time, also has its first elected female Vice President, Prof Nana Opoku-Agyemang, Mahama’s running mate in the 2024 elections.
Local and international election observers, including from ECOWAS, the African Union and the Commonwealth, and civil society organisations, were unanimous in their positive assessment of the outcome of Ghana’s latest elections, the professionalism of most actors, and the transparency of the electoral process bar the isolated violent incidents, which they captured in their reports with recommendations particularly on collation and results management for the relevant authorities to address.
Incidentally, the ECOWAS Election Observation Mission to Ghana was led by Nigeria’s former Vice President Namadi Sambo, while the West African Elders’ Forum was headed by his boss, former President Goodluck Jonathan.  The fact that President Jonathan, with Sambo as his deputy, also telephoned then-candidate Muhammadu Buhari to concede defeat in Nigeria’s 2015 presidential election, just as Bawumia has done in Ghana, was not lost on the international community.
By and large, after the successful and peaceful presidential and parliamentary elections in Senegal and Liberia, the outcome of Ghana’s elections is a strong message that democracy, with all its flaws, is the way to go, by providing the people with the mechanism to periodically change leaders who fail to deliver.
The conversation on the credibility or transparency of elections remains open-ended, but a flawed election is not enough reason to jettison democracy.
With the January 2025 deadline fast approaching on the notice issued by the junta leaders of the Alliance of Sahel States, AES, to pull their countries – Mali, Burkina Faso and Niger from ECOWAS, the message from Accra is that it is never too late for a patriotic leader to do the right thing in the interest of the people.
The citizens of AES countries are going through severe socioeconomic hardship, insecurity and political isolation, which could only worsen, with an avoidable humanitarian disaster if their countries should unceremoniously quit ECOWAS.
ECOWAS might have made some mistakes in its approach to halt the wave of military incursions into politics in West Africa, but that is no justification for military coups or unconstitutional change of governments.
Since their withdrawal announcement, the junta leaders have made little to no progress on constitutional rules or implementation of their transition programmes. They should not vindicate the notion that they are opportunistic power grabbers.
For their part, ECOWAS leaders must put their house in order at the national and regional levels by ending bad governance, corruption, human rights violations, election rigging as well as “constitutional and ballot box coups.”
*Ejime is a Global Affairs Analyst and Consultant on Peace & Security and Governance Communications

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The Assembly of the International Seabed Authority https://backup.cfcomlaw.com/the-assembly-of-the-international-seabed-authority/ https://backup.cfcomlaw.com/the-assembly-of-the-international-seabed-authority/#respond Wed, 04 Dec 2024 15:55:09 +0000 http://backup.cfcomlaw.com/?p=691 The Assembly of the International Seabed Authority
Center for Community Law

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The Assembly of the International Seabed Authority
Center for Community Law

 
The Assembly’s duties are broadly categorized into policy-making and administrative functions:
Policy Formation
The Assembly establishes general policies in accordance with UNCLOS and the 1994 Agreement, ensuring the regulation of seabed activities aligns with international law.
Administrative Oversight
Specific responsibilities include:
Elections: Selecting members of the Council, other key bodies, and the Secretary-General.
Budget Approval: Sanctioning ISA’s two-year budget and determining member contributions.
Regulatory Frameworks: Approving rules and regulations governing prospecting, exploration, and exploitation of seabed resources.
Report Analysis: Reviewing annual reports from the Secretary-General and other relevant bodies.
Future Mandates
As deep-sea mineral exploitation progresses, the Assembly will play a crucial role in ensuring equitable sharing of financial benefits derived from seabed activities. Additionally, it will oversee compensation mechanisms for developing countries affected by diminished export earnings due to seabed production.
This broad spectrum of responsibilities highlights the Assembly’s essential function in shaping and monitoring the sustainable use of seabed resources
 

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ECOWAS Dilemma, Despair and Hope https://backup.cfcomlaw.com/ecowas-dilemma-despair-and-hope/ https://backup.cfcomlaw.com/ecowas-dilemma-despair-and-hope/#comments Fri, 02 Aug 2024 12:15:56 +0000 http://backup.cfcomlaw.com/?p=673 ECOWAS Dilemma, Despair and Hope
Center for Community Law

By Ali Ocheni

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ECOWAS Dilemma, Despair and Hope
Center for Community Law

By Ali Ocheni

Mali, Burkina Faso and Niger, the three Alliance of Sahel States, with the French acronym AES have so far rebuffed overtures from ECOWAS and the rest of the international community to return to the regional bloc after their threat to withdraw.
This has put the future of the ECOWAS grouping in doubt. The bad situation in the politically restive region with the military takeovers of civilian governments in Mali, Guinea and Burkina Faso, only got worse with the 26 July 2023 coup in Niger.
No doubt, ECOWAS has made tremendous progress with some laudable achievements since its formation through the May 1975 Treaty of Lagos. The achievements include its flagship 1979 Protocol on the Free Movement of Persons, Goods, Services and Right to Establishment, which allows community citizens visa-free movement and the right to stay in a country other than their own for 90 days. 
In addition, community citizens are free to establish businesses and reside in other member States under liberal conditions. There are also the ECOWAS Passport and Biometric Identification Card Scheme, and the ECOWAS Trade Liberalisation Scheme, which allows duty-free export of goods within the regional market of over 420 million people.
The official intra-ECOWAS trade hovers between 11% and 15%, but thanks to the large volume of informal trade by itinerant traders, Nigerian goods, for instance, have become common attractions in the markets of other ECOWAS member countries and vice versa.
ECOWAS membership has also enabled members to increase the volume of their products and services in the region, with Nigeria, the regional powerhouse, with more than half of the ECOWAS population and the biggest financier, contributing more than 60% of the ECOWAS annual budget.
ECOWAS has recorded the most progress in conflict prevention, resolution, management and maintenance of regional peace. It restored peace to Liberia, Sierra Leone, Cote d’Ivoire, The Gambia, Guinea and Guinea Bissau, among its member states challenged by conflicts.
ECOWAS has also achieved measurable success in regional infrastructure development such as the Lagos-Abidjan Highway, the West Africa Gas Pipeline and the electricity power and sustainable energy projects.
ECOWAS, as the most active of Africa’s eight Regional Economic Communities (RECs), is also expected to play a pivotal role in the success of the African Continental Free Trade Area (AfCFTA) project aimed at increasing the volume of continental trade and boosting economic development and industrialisation. Ghana, and ECOWAS member state, hosts the AfCTA Secretariat.
However, the future of ECOWAS is severely threatened by insecurity, characterised by terrorism, jihadist and separatist insurrections, renewed incursion of the military into politics and the AES decision to leave the regional bloc.
For more than a decade, political instability and insecurity have heightened in Mali, Burkina Faso and Niger and the coups in those countries could be linked to instability in the Sahel, following the murder of Libyan leader Col. Muammar Gaddafi in 2011 in the French-led NATO intervention.
Subsequently, Mali became the epicentre of terrorist threats in the Sahel, from where armed groups spread into neighbouring ECOWAS states of Burkina Faso and Niger.
Gaddafi was able to engage the separatist Tuareg militia on a monthly salary when he was in power. After his death, the armed groups migrated and settled in large numbers with their weapons in northern Mali and Niger. Drug trafficking, kidnapping for ransom and other violent crimes took hold of the ungoverned space.
Before long, the Tuaregs reignited their armed rebellion for the state of AZAWAD in Northern Mali. ECOWAS through its Early Warning system, informed Mali and Niger about this dangerous development and advised that the militiamen be disarmed, trained and integration into the society.
While Niger heeded this ECOWAS advice and took some measures, Mali was adamant, and instead, former President Amadou Toumani Toure, reportedly paid the returning militiamen millions of dollars for pacification.
With this development, Mali and its vast porous borders with seven other countries became a haven for the armed groups including Al Qaeda, ISIS and other terrorist groups from North Africa and the Middle East.
The armed groups provided fertile ground for criminals and drug barons and became so powerful to form a separate government in northern Mali, outside the control of successive Bamako governments.
Under that state of anarchy, Capt. Amadou Sanogo seized power in the 2012 military coup, but with the intervention of Nigeria, ECOWAS and France, the coup leader and his group were persuaded to leave office, paving the way for the 2013 election which brought President Mamadou Boubocar Keita to power. He was re-elected in 2018 but was toppled in another coup led by Col. Assimi Goita in 2020.
Other causes of the political crises in the ECOWAS region include bad governance, corruption, arbitrary change of national constitutions, vote rigging and human rights violations by the civilian leaders, who also failed to end insecurity in their countries.
These factors and the lust for political power by the coup makers led to the epidemic of military takeovers from the civilians in Mali, Burkina Faso, Guinea and Niger and compounded by the refusal of the junta leaders to abide by provisions of the ECOWAS 2001 Supplementary Protocol on Democracy and Good Governance.
The sanctions imposed on the junta-led countries and the threat by ECOWAS to intervene militarily to restore constitutional order in Niger did not go down well with coup makers.
The three AES countries accused ECOWAS of imposing inhumane sanctions and failing to assist them in fighting terrorism and insecurity. They also charged ECOWAS with deviating from its “founding principles and of being teleguided by foreign powers,” especially France.
Even after ECOWAS lifted the sanctions and pulled back on the military intervention in Niger, the three AES countries have remained adamant.
Ironically, the three countries are still members of the eight-nation West African Economic and Monetary Union, UEMOA, all members of ECOWAS, set up by France and also still using the franc CFA currency controlled by the French Treasury.
From the long transition timetables announced by the junta leaders with the provision that they will be eligible to contest in the transition elections to civilian rule, it is obvious that the soldiers are bent on perpetuating themselves in power while avoiding reprimand by ECOWAS.
They may have expelled troops from EU countries led by France, and America, but the three landlocked countries, considered among the poorest in the World have also embraced Russian troops in their territories.
Doubtless, the consequences of the exit of Mali, Burkina Faso and Niger from ECOWAS will affect integration and stability in West Africa and the Sahel regions, including potential impacts on the free movement of persons, goods, services and right to establishment.
The importance of the three in agriculture will also be felt – Niger is a key supplier of onions and Burkina Faso exports large quantities of tomatoes and other fruits and vegetables to the regional markets.
Another fallout will be potential exodus of citizens of the three states from the other ECOWAS member states with more than five million Malians, Burkinabes and Nigeriens in Côte d’Ivoire and many Nigeriens in Ghana, Togo and Benin, who may be forced to return home. The AES countries will lose millions of dollars of ECOWAS-negotiated trades and projects and could be forced to retaliate by expelling ECOWAS citizens from their territories.
Another consequence is that the AES states could enter into alliances with countries which might be unfriendly with ECOWAS, raising the danger of jeopardising regional security and integration.
Part of the security implication of the AES withdrawal is that the coastal states of ECOWAS could suffer the influx of terrorists from the Sahel and North Africa, further complicating the security situation in both regions.
Other benefits which the AES group could lose, include the withdrawal of their citizens working in ECOWAS institutions and their candidates seeking positions in international organisations such as the United Nations will no longer enjoy the usual ECOWAS consensual solidity and support.
While the AES countries insist on their immediate withdrawal from ECOWAS, the regional organisation is following its protocol which provides for a 12-month notice for withdrawal as happened with Mauritania, which served notice in 1999 and only left in 2000.
So, the opportunity is still available for both sides to engage to resolve their differences diplomatically, particularly with the decision by ECOWAS 7 July Summit in Abuja nominating the Presidents of Senegal, Benin and Togo as mediators to bring the three breakaway states back into the fold.
President Diomaye Faye of Senegal had already started the troubleshooting before his appointment, following his meeting with Nigerian President Bola Tinubu, the re-appointed Chairman of the ECOWAS Authority of Heads of State and Government.
However, there is serious doubt if the Presidents of Benin and Togo who are nursing third-term ambitions and were absent at the Abuja Summit, would be effective on this assignment. Both countries are currently at loggerheads over retaliatory border closures threatening their diplomatic relations. Togo is also secretly collaborating with the junta-led countries.
One viable option for ECOWAS is to allow the AES countries to continue with their alliance while still members of ECOWAS. The three are still UEMOA members, and with ECOWAS membership.
Other precedents are members of the Mano River Union, the Co-Prosperity Alliance Zone of West Africa, and the Council of Understanding, Counsiel de l’Entente in French, all pursuing common goals and objectives while retaining their ECOWAS membership.
The three AES countries as ECOWAS member states also belonged to the EU-supported G-5 Group of Sahel nations fighting terrorism.
ECOWAS and the AES must prevent turning the region into a proxy war theatre, especially with foreign powers like Russia, China, Turkey and others hoovering to establish footholds in West Africa and the Sahel. Also, replacing one foreign power with another will not guarantee  solution to the security problem serve the region’s interests.
ECOWAS and the AES leaders must be reminded that their countries will be more effective in protecting their interests as a collective instead of working in silos.
Now that the AES’ concerns regarding ECOWAS sanctions and the threat of military intervention in Niger have been lifted, the junta leaders must show good faith and convince critics that their decision to withdraw from ECOWAS is not solely to avoid scrutiny or for power grab.
Most importantly, coup makers should not be allowed to benefit from their unconstitutional change of government through self-succession.
Nigeria as the current Chairman should reassert its leadership in ECOWAS and lead by example.
 ECOWAS leaders must take a serious look at the regional Protocol on Democracy and Good Governance and ensure a rule of thumb application and compliance with its provisions, especially the zero-tolerance for all unconstitutional changes of government.
Constitutional or political and ballot-box coups are as dangerous and condemnable as military coups, and all coups and other anti-democratic behaviour must be met with the same severe consequences if ECOWAS is to restore its dented integrity.
ECOWAS must ensure that member states respect and comply with regional protocols and uphold international standards and best practices of democracy and good governance.
Ambassador Ali Ocheni was Nigeria’s Consul General in Shanghai, People’s Republic of China and former Head of the ECOWAS National Office in the Nigerian Foreign Affairs Ministry.

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Africa’s Continental Criminal Court Can No Longer Wait https://backup.cfcomlaw.com/africas-continental-criminal-court-can-no-longer-wait/ https://backup.cfcomlaw.com/africas-continental-criminal-court-can-no-longer-wait/#comments Tue, 16 Jul 2024 07:25:14 +0000 http://backup.cfcomlaw.com/?p=669 Africa’s Continental Criminal Court Can No Longer Wait
Center for Community Law

*By Chidi Anselm Odinkalu

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Africa’s Continental Criminal Court Can No Longer Wait
Center for Community Law

*By Chidi Anselm Odinkalu

Less than a decade ago, the detention centre of the International Criminal Court (ICC) in Scheveningen on the outskirts of The Hague could easily have been mistaken for a committee meeting of leaders of the African Union. One of its long-term guests was Laurent Gbagbo, a former president of Côte d’Ivoire. From neighbouring Liberia, Gbagbo’s contemporary, Charles Taylor, kept up a punishing schedule on the tennis courts of the facility. With them there also was former Vice-President of the Democratic Republic of the Congo (DRC), Jean-Pierre Bemba.
At about the same time, Kenya’s President, Uhuru Kenyatta; and his Deputy and future successor, William Ruto, were suspects on trial before the ICC. For over five years before that, since 2009, the Court had an arrest warrant still outstanding for Sudan’s President Omar Hassan Al-Bashir.
Even as the ICC advanced towards an arrest warrant for Sudan’s then dictator, the African Union (AU) complained somewhat vainly that “abuse and misuse of indictments against African leaders have a destabilizing effect that will negatively impact on the political, social and economic development of States and their ability to conduct international relations.”
The month before the ICC authorized the arrest warrant against Omar Al-Bashir, in February 2009, the summit of the African Union’s Heads of State and Government requested the Commission of the African Union “in consultation with the African Commission on Human and Peoples’ Rights, and the African Court on Human and Peoples’ Rights, to examine the implications of the Court being empowered to try international crimes such as genocide, crimes against humanity and war crimes, and report thereon to the Assembly in 2010.” In the wake of the onset of the crisis in Libya, the African Union decided that the ICC’s focus on the African continent was “discriminatory.” In Malabo, the capital of Equatorial Guinea, in June 2014, the AU adopted a treaty to confer on the court jurisdiction over international crimes. This treaty is known as “the Malabo Protocol”, after the city where it was adopted.
It was the assessment of the AU then that the Bashir arrest warrant would “seriously undermine the ongoing efforts aimed at facilitating the early resolution of the conflict in Darfur.” More than five years after Omar Al-Bashir’s ouster and one and a half decades after the ICC’s arrest warrant for him, the current metastasis of atrocities in Darfur provides reason to reassess the African Union’s fears.
At the time when the AU first voiced its fears and suspicions about the ICC in the first decade of this millennium, they were largely greeted with derision. This attitude was foundational to the existence of the ICC. At the adoption of the statute establishing the court in 1998, then UK Foreign Secretary, Robin Cook, infamously sniffed that “this is not a court set up to bring to book Prime Ministers of the United Kingdom or Presidents of the United States.”
This colonial superciliousness did not preclude African countries from recognizing the opportunities in the ICC. The continent was the single largest source of resilient support to the project and process that culminated in the creation of the Court. With 33 of the 124 member states of the ICC, Africa provides over 26.6% of the signatories to the Statute establishing the Court, the largest single bloc of any continent. In January 2004, when few trusted the Court to exercise its functions with skill or responsibility, Uganda’s President Yoweri Museveni voluntarily referred the situation in the country to the court, yielding up the first case received by it. By the end of the first decade of its operations, the prosecutorial docket of the ICC read like a political geography of Africa: Central African Republic, Côte d’Ivoire, DRC, Kenya, Libya, Mali, Sudan, Uganda.
A senior lawyer practising at the ICC accused it of being “a vehicle for its primarily European funders, of which the UK is one of the largest, to exert their influence and, particularly, in Africa.” For a long time, fundamentalists of the ICC dismissed this view as lacking in credibility.
As the current prosecutor of the Court, Karim Khan, prepared to turn his attentions to the atrocities in the ongoing crisis in Gaza earlier this year, however, all the suspicions about the targeting of Africa by the court were confirmed. In a high profile interview with the Cable News Network (CNN) last month, Mr. Khan disclosed that an unnamed senior Western official seeking to dissuade him from seeking an arrest warrant against Israel’s Prime Minister, had told him that the ICC was “built for Africa and for thugs like Putin.”
At about the same time, it emerged that the head of Israel’s much feared foreign intelligence agency, the Mossad, had “allegedly threatened a chief prosecutor of the international criminal court in a series of secret meetings in which he tried to pressure her into abandoning a war crimes investigation.” According to The Guardian in London, this was part of “an almost decade-long campaign by the country (Israel) to undermine the court (ICC).” In the wake of these disclosures, those who issue gratuitous lectures to Africa about the impunity and accountability have seen nothing and said even less.
The Prosecutor whom they threatened was Fatou Bensouda, Gambia’s current High Commissioner to the United Kingdom whose courage in defending the independence of her office as the second Prosecutor of the ICC made her the subject of punitive sanctions by the United States.
In the Malabo Protocol, the African Union, tired of protesting the pigmented project of the ICC, decided to endow an African Court of Justice and Human and Peoples’ Rights with jurisdiction over 14 crimes of an international or trans-boundary nature on the continent. These include aggression; war crimes; crimes against humanity; genocide; trafficking in persons, in hazardous wastes or in drugs; terrorism, corruption; money laundering; mercenarism; piracy; illicit exploitation of natural resources; and unconstitutional changes in government.
Despite the truly capacious scope contemplated by this treaty, a sustained international campaign frightened most African states into losing their sovereign nerves about the establishment of the court. The current scandal around the skulduggery and double standards in relation to the ICC’s efforts to address Afghanistan and Palestine have finally persuaded African countries to return attention to the project of an African competence on international crimes.
On 31 May, Angola became the first country to ratify the Malabo Protocol. That leaves 14 more to do so before the African Court of Justice and Human and Peoples’ Rights can be established. That cannot happen too soon. When it does, the new court will have 15 judges who will sit in three sections. The General Affairs section will handle cases on mostly trade, regional integration and continental institutions. The section on Human and Peoples’ Rights will focus on human rights cases. There will also be a section on International Criminal Law which will have a pre-trial, trial and appellate chamber. The new Court will house one prosecutor and also one registrar.
Fundamentalists of the ICC mock the idea of an international crimes instance for Africa. In truth, in the period of just over two decades of its operations, the record of the ICC has been largely underwhelming. It can do with all the help that it can get. The continental criminal instance proposed by the AU should be seen as a pay-down by Africa on precisely that kind of assistance. Ten years after its adoption, there is no longer time to wait; Angola’s leadership in the push to bring the Malabo Protocol into force deserves to be quickly complemented by other African countries.
A lawyer and a teacher, Odinkalu can be reached at chidi.odinkalu@tufts.edu

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