#EndSARS: The ECOWAS Court judgement and challenge of compliance, By Cheta Nwanze

ECOWAS Court of Justice in session.

The recent ruling is welcome, but the real test lies in securing compliance from Nigeria’s government, which is known for its reluctance to adhere to unfavourable judicial rulings. This reluctance raises concerns about the practical impact of this judgment and highlights the ongoing challenge of translating legal victories into meaningful governmental action that benefits the people.

The judgment on the Lekki Massacre given by the ECOWAS Community Court of Justice on the 10th of July represents a pivotal moment for justice in Nigeria, particularly concerning the harrowing experiences of EndSARS protesters at the Lekki Toll Gate on 20 October 2020. The court unequivocally condemned the Nigerian government’s violent crackdown on peaceful demonstrators, who had gathered to advocate against police brutality and demand reforms. This landmark ruling underscores the court’s crucial role in upholding human rights and holding governments accountable for their actions.

The ECOWAS Court’s judgment now stands as a beacon of hope for victims and activists alike, affirming Nigerians’ fundamental rights to peaceful assembly, freedom of expression, and protection from state-sanctioned violence. The court found that the Nigerian government violated the rights to life, security of person, freedom of expression, assembly, and association, among others, and as such ordered the government to compensate the victims and investigate the abuses.

The protests, initially sparked by widespread outrage over recurring incidents of police brutality, particularly by the Special Anti-Robbery Squad (SARS), and specifically by a video of SARS operatives robbing a young man in Ughelli, Delta State, gained international attention for their scale and the government’s response. Instead of heeding the protesters’ calls for reform, Nigeria’s security forces unleashed a series of brutal assaults in various parts of the country, including but not limited to Lekki and Mushin in Lagos State, Ibadan in Oyo State, Ado-Ekiti in Ekiti State, Benin in Edo State, Warri in Delta State, Apo and Kubwa in Abuja, Kano, and perhaps most brutally in Obigbo in Rivers State, in the days after 20 October 2020, where a still unknown number of people were accused of being IPOB members/sympathisers, and brutally attacked.

The order for the Nigerian government to compensate the victims, conduct investigations into the abuses, and report back to the Court is a positive step towards accountability. Sadly, however, it does not address the consequences for the political actors involved, which limits its capacity to deter the government from using force against protesters in the future.

The Tinubu Administration, which has been battling a crisis of legitimacy due to a multiplicity of reasons, including but not limited to its small vote share on a small voter turnout and the unpopular but necessary removal of fuel subsidies, can take steps towards gaining legitimacy and public support by working towards healing and accountability for the events of 20 October 2020. A good starting place would be by immediately addressing the detention of protesters still being held in police custody.

The history of the ECOWAS Community Court of Justice (ECCJ) and the implementation of its judgments by member states is mixed. Despite its growing moral and legal authority, the ECOWAS Court lacks direct enforcement mechanisms and relies heavily on voluntary compliance by member states.

It would be incomplete to speak of the judgment without addressing the defence put up by the government. There was something particularly disturbing about the government’s counsel choosing to make its defence against the accusations by claiming that the protesters were aiding Boko Haram terrorists. This claim was not only baseless but also absurd, considering the geographical and operational disconnect between the peaceful protesters in Lagos and the terrorist activities of Boko Haram and ISWAP in the Sahel and Northern Nigeria. The Federal Government’s argument that Lagos protesters were supporting terrorist attacks far away in the Sahel is perplexing and appears to be an attempt to delegitimise the protests and justify the excessive (and in some instances lethal) use of force against unarmed Nigerians. It speaks to the militaristic nature of Nigeria’s democracy, in which any dissent is seen in purely regime change terms, which cannot be good for the health of our democracy.

Established in 1991 by the ECOWAS Revised Treaty, the Community Court of Justice offers a vital avenue for seeking redress for grievances, ensuring that even the most marginalised people can hold their governments accountable for human rights violations.

The recent ruling is welcome, but the real test lies in securing compliance from Nigeria’s government, which is known for its reluctance to adhere to unfavourable judicial rulings. This reluctance raises concerns about the practical impact of this judgment and highlights the ongoing challenge of translating legal victories into meaningful governmental action that benefits the people.

The history of the ECOWAS Community Court of Justice (ECCJ) and the implementation of its judgments by member states is mixed. Despite its growing moral and legal authority, the ECOWAS Court lacks direct enforcement mechanisms and relies heavily on voluntary compliance by member states.

Initially, the Court had limited visibility and impact, primarily dealing with disputes between member states and the ECOWAS Commission. However, the 2005 Supplementary Protocol expanded its jurisdiction to include cases brought by individuals and corporate bodies regarding human rights violations. This shift significantly increased the Court’s caseload and led to several landmark rulings on human rights cases. Despite these advancements, many member states have been slow or reluctant to comply with the Court’s rulings, citing various political and legal challenges. The lack of a robust enforcement mechanism within ECOWAS means that the Court largely relies on member states’ goodwill and political will to implement its decisions.

Nigeria’s mixed record regarding compliance with ECOWAS Court decisions, with notable instances of non-compliance, undermines the Court’s authority and sets a challenging example for other member states. Regardless, the availability of channels like the ECOWAS Court of Justice is crucial, even if member countries only sometimes comply with its judgments.

Nigeria, the largest and most influential member state in ECOWAS, presents a unique set of challenges for the ECOWAS Court regarding enforcing its judgments. Nigeria’s significant political and economic influence within ECOWAS often leads to a complex dynamic in which the country has the power to resist external judicial pressures that lead to reluctance to implement. In addition, the Nigerian legal system and bureaucracy can challenge the implementation of ECOWAS Court judgments, as the need for domestic legal processes to align with international rulings can create delays and complications.

Nigeria’s mixed record regarding compliance with ECOWAS Court decisions, with notable instances of non-compliance, undermines the Court’s authority and sets a challenging example for other member states. Regardless, the availability of channels like the ECOWAS Court of Justice is crucial, even if member countries only sometimes comply with its judgments.

The Court provides a formal avenue for individuals, institutions, and governments to seek redress and hold states accountable for human rights violations and other disputes. Maintaining official records of these cases and rulings ensures transparency and creates a valuable legal archive. While compliance may be inconsistent, documenting grievances and decisions is a step towards greater accountability and the rule of law in the region.

A respected ECOWAS Court would bring significant benefits. It would enhance human rights protection by providing a reliable mechanism for redress and justice, giving individuals and institutions confidence in challenging abuses of power. Additionally, it would contribute to regional stability by offering a neutral platform for resolving disputes between states, thereby reducing the likelihood of conflict.

With all that being said, we have to make an effort to stay with the positives, however marginal and note how the ECOWAS Court’s decision underscores the importance of this regional judicial body in providing a platform for individuals and less powerful institutions to seek justice against more powerful governments.

Cheta Nwanze is a partner at SBM Intelligence.