ECOWAS Court rejects Falana’s suit, upholds reduction in its judges’ number

The Community Court of the ECOWAS has described as ‘unfounded,’ a suit filed by a former President of West African Bar Association (WABA) Femi Falana (SAN), challenging the legality of the 2017 decision by Heads of State and Government of ECOWAS to reduce the number of judges of the court from seven to five.

In a judgment on December 2019, the court declared that the Heads of State and Government of ECOWAS are ‘vested with the competence to reduce the number and that the Decision of the ECOWAS Authority of Heads of State and Government taken at the 51st Summit in June 2017 is legal and effective.’

A three-man panel of the court held that it ‘has not established that the contested decision infringed any of Falana’s rights.

Justice Januaria Moreira Costa, who read the lead judgment, was of the view that “the decision in question was adopted, as a transitional act, in the framework of monitoring the functioning of Community institutions and achievement of ECOWAS objectives, until the amendment of the relevant Community Texts, as can be understood from the text of the Decision having binding effects.”

She rejected the plaintiff’s argument that the decision violated Articles 3, 6 and 15 of the Revised Treaty.
Justice Costa affirming instead, that “the contested decision did not seek to amend Article 3 of the Protocol on the court, but merely to suspend temporarily, the effects of such Article by limiting the number of judges to five until the amendment of the Protocol is implemented.”

She relied on the translated English version of decision A/Dec.2/5/17 which read “the number of judges at the Community Court of Justice shall be reduced to five in accordance with the reform of the institutions pending the necessary amendment of the Community texts providing for a reduction in the number of statutory appointed members.”

The court further noted that the decision was implemented at the end of tenure of the seven judges of the court in 2018 leading to the inauguration of five new judges in July 2018 and that the alleged congestion and undue delay in justice delivery were predictions of the plaintiff who did not establish/ prove any violation of rights.

Justice Costa proceeded to dismiss the suit as ‘unfounded.’

Justice Gberi-Be Ouattara (who presided) and Justice Dupe Atoki (member of the panel) agreed with the lead judgment.

Falana had, in the suit marked: ECW/CCJ/APP/32/18 filed on August 7, 2018, argued among others that the decision by the defendants- the Authority of Heads of States and Government and the Council of Ministers- to reduce the number of the judges of the ECOWAS Court was illegal as it contravened the provisions of Articles 3, 6 and 15 of the ECOWAS Revised Treaty and Article 3 of the Protocol on the Court among others.

Falana argued that the decision infringed on his right to fair hearing and access to justice resulting from an increase in pending cases before the court and delays in delivery of justice.