Africa
THE ECOWAS Court of Justice on Thursday, 7th December 2023 rejected an application by the Republic of Niger seeking an order of the court to suspend the execution of a decision of the Heads of State and Government of the Community imposing sanctions against the country.
“The Court takes the view that an entity that is the product of an unconstitutional change of government and which is not recognised by ECOWAS as a government of a Member State, lacks the capacity, prima facie, to bring a case before the Court, in which it seeks to derive benefit or reprieve. Therefore, to the extent that the present action and request for provisional measures standing in the name of Niger has been brought by an unconstitutional and unrecognised governmental authority, it is prima facie inadmissible,” the Court said in its ruling which was read by Justice Dupe Atoki on behalf of the presiding judge, President of the Court, Justice Edward Amoako Asante.
By Decision MSC.A/DEC.05/07/23 of 30th July 2023, regional leaders imposed sanctions on Niger aimed at restoring constitutional order in the country following the 26th July 2023 coup. The sanctions, which were imposed by regional leaders following their extraordinary meetings of ECOWAS of 30 July 2023 and 10 August 2023 in Abuja, include the closure of land and air borders between ECOWAS countries and Niger; the suspension of commercial and financial transactions between Member States and Niger as well as the freezing of the assets of the Republic of Niger and those of its parastatal agencies in the central or commercial banks of ECOWAS Member states.
Ruling in an application for interim measures brought by the government of Niger against the Authority of Heads of State and Government of the Community and two others, the Court found that as currently controlled by the military junta, the government lacks prima facie capacity before the Court. It accordingly ruled the application as inadmissible.
In its initiating application, the Republic of Niger, which was joined in the suit by seven other government entities, had asked the Court to order the suspension of all politically and economically binding sanctions against the Republic of Niger and its population resulting from the decision MSC.A/DEC/5/07/23 of 30 July 2023 until the merits of the case are decided.
It also urged the Court to order the suspension of decision MSC.A/DEC.6/08/23 dated 10 August 2023 ordering, especially, the activation and deployment of the ECOWAS Standby Force against Niger until the merits of the case are decided while all ECOWAS Member States and ECOWAS Institutions should comply with the provisions of Article 23(2) of the Protocol of the Court.
In the application, the Republic of Niger had justified the requirement for urgency of the suit as necessitated by the serious economic, financial, social, and human consequences of the measures taken by the Mediation and Security Council and by the ECOWAS Authority.
“The sanctions have had far reaching consequences for Niger, its citizens, and its business community, hindering the free movement of capital, goods and services. There are tens of thousands of Nigerien students and interns who have to travel to continue their studies but are blocked due to the sanctions. Also, the sudden cut of electricity supply by Nigeria, as part of the sanctions, has deprived hospitals of electricity and is precariously impacting the living conditions of the population.
It added that “in light of these circumstances and having regard to the fact that the country is facing a sub-regional threat of terrorism, Applicants submitted that there is an urgent case for the Court to order the suspension of the measures imposed on Niger.
On the issue of jurisdiction, the Republic of Niger submitted that the Court has competence to rule on the application pursuant to Article 9 (1)(c) and (2) of the Protocol of the Court as well as Articles 1, 2, 10, and 23 of the Protocol of the Court.
Regarding admissibility, Applicants stated that Article 21 of the Protocol of the Court indicates that the Court may order any provisional measure it deems necessary or appropriate whenever it is seized of a dispute.
The application for provisional measures must be made in a separate document and in accordance with Articles 32 and 33 of the Rules of the Court. Applicants contended that the application is admissible since it complies with the Rules of the Court, having been submitted as a separate document after the substantive Application was filed.
On the merits of the application, the Applicants submitted that by Article 79 of the Rules of the Court, applications for provisional measures under Article 21 of the Protocol of the Court, must specify the subject matter of the dispute, circumstances demonstrating the urgency of the measures sought, and the pleas in law and fact which justify, prima facie, the granting of the provisional measures sought.
But the Respondents, the Authority of Heads of State and Government of ECOWAS, the Community’s Mediation and Security Council and the ECOWAS Commission raised a challenge to admissibility on the grounds that the First Applicant, the Republic of Niger, and the other persons and entities suing as applicants with Niger lack the capacity to file the substantive application.
In relation to the Republic of Niger, the Respondents contended that it is currently controlled by a military junta which seized power unconstitutionally in violation of ECOWAS legal instruments and which ECOWAS does not recognise. That since such an unconstitutional government which has been denounced by ECOWAS and the international community cannot be legally deemed to represent the country, the Republic of Niger as currently controlled by the junta lacks capacity in the ECOWAS Court, making the substantive application and request for provisional measures inadmissible.
Concerning the other persons and entities joining as co-applicants with Niger, Respondents argued that ordinarily, both individuals and legal entities may invoke Article 9(2) of the Protocol of the Court for the determination of acts or omissions of Community officials that violate their rights.
However, in this case, the individuals and entities suing alongside the Republic of Niger do not possess distinct interests of their own. Instead, they are pursuing the same legal outcome that Niger, which is currently under the control of a military junta, does not have the capacity to claim.
These include Fatimata Moussa, a national of the Republic of Niger resident in Niamey; (iii) la Societe Nigeriene d’Electricite, a semi-public limited company which has its registered office in Niamey, Republic of Niger; (iv) la Chambre de Commerce et d’Industrie du Niger (Niger Chamber of Commerce and Industry) a professional body which has its registered office in Niamey, Republic of Niger; (v) Le Conseil des Users des Transport Publics (Nigerien Council of Public Transport Users) an industrial and commercial body with its head office in Niamey, Republic of Niger; (vi) Le Conseil National de l’Ordre des Pharmacisens du Niger (National Council of the Association of Pharmacists of Niger) with its head office in Niamey, Republic of Niger; (vii) La Chambre d’Agriculture du Niger (Niger Chamber of Agriculture) which has its head office in Niamey, Republic of Niger; and (viii) Le Syndicat des Commercants Importateurs du Niger (Importers and Traders Union of Niger) which has its head office in Niamey, Republic of Niger.
At its sitting of 21 st November 2023, the Court heard the submission of the parties.
In its ruling, the Court found that the substantive Application is prima facie inadmissible in respect of the Second to the Eighth Applicants within the meaning of Articles 9(2) and 10(c) of the Protocol of the Court.
It held that the second to eighth applicants made generalised allegations of the effect of the sanctions on their businesses and individuals, they did not plead the exact nature and extent of the harm caused to each of them by the measures imposed on Niger, to distinguish their legal interest in this case from that of the First Applicant.
“At first glance, none of the reliefs sought in the Application, aims to redress any specific injuries that have been pleaded by, and are personal to, the individuals and entities suing alongside Niger in this case. In the circumstances, the Court is constrained to hold that the
Application is prima facie inadmissible in respect of the non-state applicants within the meaning of Articles 9(2) and 10(c) of the Protocol of the Court,” the Court added.
The Court recalled its decision in Aristides Gomes v Senegal and 3 Others ECW/CCJ/JUD/08/23, where it explained the right of states, whether individually or collectively, to decide whether and on what grounds to recognize or deal with governments that ascend to power illegitimately.
Consequently the Court stated that international law also permits states to decide whether they recognise a particular entity as the government of another state and to determine the extent to which they wish to have economic, political, or diplomatic relations with such a government.
Individual states may, therefore, make ascension to power by democratic or constitutional means a condition for recognising and dealing with the government of another state.
Similarly, the Court held that within the context of international organisations, members may collectively establish rules requiring that governments of member states must come to power through democratic or constitutional means for them to be recognised as such.
An example of the latter is the common prohibition of unconstitutional changes of governments within ECOWAS and the African Union, and the requirement that the government of member states must obtain or maintain power through constitutional and democratic means.
Based on the general position that obtains under public international law, the Court held that the military junta currently controlling Niger may be considered as the government of the state. However, the rules of collective recognition of governments at ECOWAS and, at the level of the African Union, to which Niger has subscribed qualify that general position. In fact, these rules abhor the attainment or maintenance of power through unconstitutional means.
While the Court acknowledged that under certain exceptional circumstances, it is conceivable to acknowledge the capacity of a Member State whose government did not constitutionally obtain power to appear in proceedings before the Court, it held that this did not apply in the present case.
The Court reminded the parties of their obligation under Article 23(3) of the Protocol of the Court to “refrain from any action likely to aggravate or militate against” the hearing of the substantive Application.
Also on the three-member panel for the case is Vice President, Justice Gberi be Ouattara.
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December 8, 2023 @ 1:14 GMT|
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