The Community Court of the Economic Community of West African States (ECOWAS) has dismissed an application by the Republic of Niger praying the court to, among others, suspend sanctions imposed on the country by the ECOWAS Authority of Heads of State and Government.
The application for interim orders was filed along with a substantive case in which Niger and seven other applicants are challenging the legality of sanctions imposed by ECOWAS following a military coup in the West African country in July 2023 that overthrew the government of President Mohammed Bazoum.
The court, in the ruling delivered by its President, Justice Edward Amoako Asante, agreed that it has prima facie jurisdiction over the substantive case.
It however held that it could not grant the request for interim orders sought by the applicants because they were yet to meet the additional requirement for the court to assume jurisdiction over the case.
The court noted that the Republic of Niger, as currently controlled by the military junta, lacked prima facie capacity before the Court, making the substantive application prima facie inadmissible.
It held that the substantive application was, on the face of it, inadmissible as it relates to the other applicants within the meaning of Articles 9(2) and 10(c) of the Protocol of the Court.
The court was of the view that an entity, resulting from an unconstitutional change of government, and not acknowledged by ECOWAS as a government of a member state, inherently lacks the capacity to initiate a case before the court with the aim of obtaining benefits or reprieve.
It held that it could exercise jurisdiction over the substantive suit and the application for interim orders, which were brought in the name of the Republic of Niger, “by an unconstitutional and unrecognized governmental authority.”
It added that the other seven applicants, who the court described as “non-state applicants, suing alongside the Republic of Niger,” failed to provide specific details regarding the nature and extent of the harm suffered by each of them from the measures imposed on Niger.
The court noted that their failure to differentiate their legal interests in the case from those of the Republic of Niger was fatal to their case.
At the hearing held on 21 November, 2023 the applicants, represented by a team of lawyers led by Moukaila Yaye, argued that the sanctions imposed by the Authority of Heads of State and Government of ECOWAS have had adverse effect on the Nigerien people including shortage of food, medicine and electricity, due to the closure of borders and suspension of electricity supply by Nigeria.
They asked the court for interim orders that will compel the Authority of Heads of State and Government to immediately suspend the sanctions.
They said that ECOWAS overreacted by imposing the sanctions and that Niger was unequally and unfairly treated compared to three other ECOWAS member states (Mali, Burkina Faso and Guinea) that have experienced coup d’états in recent years.
Lawyer to the ECOWAS Authority and other respondents in the case, François Kanga-Penond,
told the court the that the Republic of Niger is currently controlled by a military junta which seized power unconstitutionally in violation of ECOWAS legal instruments.
Kanga-Penond contended that since such an unconstitutional government which had been denounced by ECOWAS and the international community could not be legally deemed to represent the country, both the substantive application and request for provisional measures were inadmissible.
He therefore urged the Court to decline the request for interim orders.
In the substantive application, the applicants -the Republic of Niger, six Nigerien organisations and a Nigerien national – had prayed the court to declare the measures taken by the ECOWAS Authority of Heads of State and Government of ECOWAS during its extraordinary sessions of 30 July and 10 August 2023, to restore constitutional order in the Republic of Niger illegal.
They urged the court to nullify all decisions of these ECOWAS organs imposing sanctions, including the decision to resort to military intervention in the Republic of Niger.
