By: Kebba AF Touray
The ECOWAS Court of Justice on 7 December 2023 dismissed a request filed by the Republic of Niger, to suspend sanctions imposed on the country by the ECOWAS Authority of Heads of States and Governments.
The request for interim measures is part of a broader case brought by the Republic of Niger and seven other applicants challenging the legality of sanctions imposed on it by ECOWAS, following a military coup in the West African country in July 2023 that overthrew the Government of former President Mohammed Bazoum.
In the ruling delivered by Justice Edward Amoako Asante, the Court acknowledged that it has a prima facie jurisdiction over the substantive application.
However, the Court ruled that it could not grant the request for interim measures since the additional requirement for the case to be prima facie admissible had not been met. The Court explained that the Republic of Niger, currently controlled by a military junta, lacked prima facie capacity before the Court, making the substantive application prima facie case inadmissible.
The substantive application was also held to be prima facie inadmissible in respect of the rest of the Applicants within the meaning of Articles 9 (2) and 10 (c) of the Protocol of the Court.
At the hearing held on the 21 of November 2023, the applicants represented by MrMoukailaYaye and five other lawyers argued that the sanctions imposed on Niger by the Authority of Heads of States and Governments of ECOWAS, have had adverse effects on the Nigerien people particularly on the shortage of food, medicine and electricity, due to the closure of borders and the suspension of electricity supply by Nigeria. They asked the Court for interim orders to compel the Authority of Heads of State and Government to immediately suspend the sanctions.
According to them, ECOWAS over-reacted by imposing the sanctions, and 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.
François Kanga-Penond who represented the ECOWAS authority and other respondents in the case, told the Court that the Republic of Niger is currently controlled by a military junta that seized power unconstitutionally, in violation of ECOWAS’ legal instruments. He argued 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, and urged the Court to decline the request for interim measures.
In a substantive application, the applicants (the Republic of Niger, six Nigerien organisations, and a Nigerien national), asked the Court to declare the measures taken by the ECOWAS Authority of Heads of States and Governments during its extraordinary session of 30th July and 10th August 2023, to restore constitutional order in the Republic of Niger illegal. They requested the Court to nullify all the decisions of the ECOWAS organs that imposed the sanctions including the decision to resort to military intervention in the Republic of Niger.
