Fresh trouble for Tinubu to ECOWAS Court over planned military action in Niger

The Egalitarian Mission for Africa (EMA), an international group, has filed a lawsuit against President Bola Tínubu of Nigeria before the Economic Community of West African States (ECOWAS) Court of Justice. The group is seeking an order from the court to halt the proposed military intervention in the Republic of Niger, which is being planned by the Nigerian Government.

In the suit presented by Nigerian lawyer Dr. Oluwakayode Ajulo, EMA urges the regional court to utilize relevant ECOWAS treaties and international laws to prevent the Nigerian Government from spearheading a military invasion of Niger Republic. The group contends that such an action would violate the obligations outlined in the ECOWAS treaties, constituting an act of illegality.

The lawsuit, bearing the identification ECW/CCJ/APP/3/23, explicitly highlights that ECOWAS treaties expressly forbid aggression among member states.

EMA is not the sole plaintiff in this matter. Other plaintiffs include Professor Bola Akinterinwa, a former Director General of the Nigerian Institute of Internal Affairs (NIIA), and Hamza Nuhu Dantani, a lawyer from Nigeria’s Northern Region.

The defendants listed in the case are ECOWAS itself, the Heads of ECOWAS Mission, the President of ECOWAS Mission, the Federal Republic of Nigeria, and the Republic of Niger.

The backdrop of the lawsuit stems from a military group’s overthrow of the civilian and democratic government of President Mohammed Bazoun on July 26. President Bazoun was subsequently placed under unlawful military detention. While acknowledging the unfortunate nature of the coup d’état, the plaintiffs warn against Nigeria engaging in military hostilities that could exacerbate the crisis in Niger Republic.

Citing the displacement of over 300,000 refugees, mainly Nigerian citizens, from Niger Republic, the plaintiffs argue that a military intervention would violate fundamental rights, including the right to life, dignity, and liberty.

EMA and its co-plaintiffs urge the ECOWAS Court of Justice to issue a restraining order against any military action that may compromise the sovereignty and territorial integrity of Niger Republic.

The letter dated August 8, 2023 is entitled “NOTIFICATION OF PENDENCY OF CASE BEFORE THE ECOWAS COMMUNITY COURT OF JUSTICE; CALL FOR STRICT ADHERENCE TO THE PROTOCOL OF THE HONOURABLE COURT THE ECOWAS COMMUNITY COURT OF JUSTICE”.

It read in part, “We are Counsel to the Plaintiffs/Applicants in the above case before the ECOWAS Community Court of Justice and it is on their firm and unequivocal instructions that we write.

“Sequel to the Resolution and several sanctions imposed by the ECOWAS in the aftermath of the unfortunate and unconstitutional takeover of the democratically elected Government of the Republic of Niger, we have lodged a Case before the ECOWAS Community Court of Justice in an application for reliefs as the proposed military intervention in the Republic of Niger would be tantamount to aggression between ECOWAS Member States.

“The intervention will specifically violate Articles 1, 5, 15, 16, 17, 21, 22 & 24 of the African Charter on Human and Peoples’ Rights; Articles 1 (2), 2, 3, 4, 5, 6, 7, 8, 9, 11, 12, 13 & 14 of the International Covenant on Economic, Social and Cultural Rights; Articles 1, 3, 22, 23 (3), 25 (1) & 26 of the Universal Declaration of Human Rights 1948; Articles 1, 2, 3, 4, 5, 6, 7, 8, 9 & 10 of the Declaration on the Right to Development 1986; Articles 6, 15, 31, 63 & 64 of the Revised Treaty of the Economic Community of West African States; Article 10 of the Supplementary Protocol (A/SP.1/01/05) amending the Protocol (A/P.I/7/91) relating to the Community Court of Justice and Articles 10 (c), 22, 26, 27, 28, 56 of the ECOWAS Protocol Relating to the Mechanism for Conflict Prevention, Management, Resolution, Peace– Keeping and Security 1999.

“The Case, an official copy of which has been duly served on your Excellency through the ECOWAS Secretariat, 101, Yakubu Gowon Crescent, Asokoro, Abuja, has invoked the jurisdiction of the International Court to consider conventions, treaties, Protocols and regulations to which your Excellency and the Federal Republic of Nigeria are signatories and which override the resolutions, sanctions, domestic law and practices and which the ECOWAS Community Court of Justice has been called upon to declare illegal. Another copy of the Case is attached for your informed action.

“We wish to further draw your attention to Article 22(2) of the Protocol on the Community Court of Justice which mandates that “When a dispute is brought before the Court, Member states or institutions of the Community shall refrain from any action likely to aggravate or militate against its settlement”

“In the Case before the ECOWAS Community Court of Justice, The Economic Community of West African States (ECOWAS), Authority of Heads of State and Government (of which your Excellency is the Chairman), President, ECOWAS Commission, The Federal Republic of Nigeria (of which your Excellency is the President and Commander-in-Chief of the Armed Forces) have been sued as sovereign legal representatives of respective institutions including the Republic of Niger.

“It is your Excellency’s sacred duty as the Chairman of the Authority of Heads of State and Government of ECOWAS and the President and Commander-in-Chief of Armed Forces of Federal Republic of Nigeria under your hand to bring the institution of the Case before ECOWAS Community Court of Justice to the attention of the other Defendants/Respondents and to insist, particularly in your Excellences’ subsequent meetings, that the Defendants/Respondents, refrain from taking any action in respect of the subject matter pending the determination of the case, in view of your Excellency and Nigeria’s protocol obligation under the Article above quoted.

“Your Excellency, it is our firm confidence that by your enviable knowledge of high international standard of due adherence to the rule of law and respect for the supranational judicial process obtainable in a Case of this nature, we need not further stress the need to ensure that all the Defendants/Respondents concerned maintain the status quo presently obtaining, and restrain themselves from taking any step susceptible to being regarded by the ECOWAS Community Court of Justice and international Community as prejudicial to the interest of our client or any of the parties in court.

“Your Excellency would agree with us that as the law stands presently, the Resolution on proposed military actions be discontinued pending the determination of the Case by the ECOWAS Community Court of Justice.

“The Federal Government of Nigeria and other Defendants/Respondents have never been known to confront the international judicial system nor subject themselves to international ridicule and is beyond mischievously foisting a fait accompli on an International Court to which charter or protocol she is a High Contracting party.

“It is without any reservation that we proceed on the common ground that your Excellency would use your good offices as the Chairman, Authority of Heads of State and Government of ECOWAS and President & Commander-in-Chief of Armed Forces of the Federal Republic of Nigeria to adhere and advise compliance on the part of the afore-listed defendants.

“While thanking you for your adherence to the rule of law, please accept the assurance of our warmest professional regards.”