The ECOWAS Court of Justice has denied arguments from the Government of Liberia that the regional court is “incompetent to review, interpret, and apply the national constitution and domestic laws of Member States.”
The government, represented by its Solicitor General, Cllr. Sayma Syrenius Cephus, argued that the court lacks jurisdiction to entertain argument or rule on the suit filed by Cllr. Kabineh M. Ja’neh that his impeachment from the Supreme Court Bench violated his human rights, particularly the right to a fair hearing and impartial trial.
In his argument, Cllr. Cephus asked the Court to “declare that the application is inadmissible” since the impeachment of the “Applicant was done through a political process that also followed the due process of law as laid down in Section 43 of the 1986 Constitution of Liberia.”
However, the Court, which was established pursuant to Articles 6 and 15 of the ECOWAS Revised Treaty, denied the Liberian government’s argument and said that the case/matter was “admissible and within the jurisdiction” of the court.
In its 73-page judgment, the Court, led by Justice Edward Amoako Asante, argued that the case was within its Jurisdiction to the extent that it has “clearly established violation of the Applicant’s right to a fair hearing and right to work.”
Contrary to Cllr. Cephus’s argument, the Court’s ruling, pursuant to the 2005 ECOWAS Supplemental Protocol, which was codified, states that the Court has jurisdiction “to hear human rights cases and expands the admissibility rules to include disputes between individuals and their own member states.”
It was on this same principle that the Court in 2008 ruled that the Government of Niger failed to protect one of its citizens from enslavement by passively tolerating the practice. In 2011, the Court also ruled that it was compulsory for the Government of Nigeria to provide adequate financial support for public education in order to fulfill its obligation under the African Charter on Human and Peoples’ Rights.
Also, the Court further ruled that the impeachment of the Applicant, Cllr. Ja’neh, was illegal and ordered the Liberian government to pay reparations in the sum of US$200,000 for moral prejudice suffered for the violation of his rights instead of the US$25,000,000 demanded by the Applicant.
“The ECOWAS Court of Justice also ordered the Republic of Liberia, to restore, calculate and pay to the Applicant all his withheld entitlements, including salaries, allowances, and pensions benefits as from the date of his impeachment to the date of notification of the Court’s judgment,” said the Court ruling endorsed by its panel of three Judges.
However, the Court, despite ruling in Cllr. Ja’neh favor, dismissed his allegation of bias against the Chief Justice of Liberia during the impeachment trial as “unstainable”.
Despite the ruling, the Court also ordered Cllr. Ja’neh’s reinstatement as an Associate Justice of the Supreme Court or “in the alternative, to grant him the right to retire from service on the date of notification of the judgment of the Court with full pension’s benefits as if he had retired at the normal retirement age for justices of the Supreme Court.”
The Court, which ruling is final and binding under the 1991 Protocol, has given the government of President George Manneh Weah six months to report on the enforcement of the judgment.
However, it is yet unclear as to whether the government, on its end, will choose to recognize the Court ruling, despite its previous stands that the Court lack jurisdiction on the case. However, the ECOWAS Protocol mandates member states to take all measures necessary to ensure the execution of the Court’s decision.
Nevertheless, the Court ruling cannot be enforced under Article 24 of the 2005 Protocol, except the execution of a judgment of the Court in a form of a Writ of Execution is sent or submitted to a member state by the Chief Registrar of the Court.
In this case, it is unclear whether the Chief Registrar of the Court has forwarded the Writ of Execution, a document the Weah administration needs in order to execute the judgment, according to its national courts. The ECOWAS Protocol also mandates member states to determine the national authority to execute the Court’s judgment and inform the Court of the relevant authority.
Enforcement of the ECOWAS Court’s judgments over the years has been a major problem due to the fact that none of the legal instruments — the Revised Treaty or Supplementary Protocols — discusses means of enforcement of the regional court’s rulings in the case where member states default.
The suit by Cllr. Ja’neh, which was filed on August 23, 2019, through Applicant Counsel Femi Falana, leading six other lawyers, alleged that the processes leading to his removal violated his human rights, particularly the right to a fair hearing and impartial trial, right to work and dignity of the person, guaranteed by the African Charter on Human and Peoples Rights, as well as the Universal Declaration of Human Rights.
In the suit, Cllr. Ja’neh’s counsels also claimed that the purported impeachment, trial, conviction, removal from office, and replacement, violated the Liberian Constitution — and that the Respondent, the government of Liberia, subjected him to impeachment proceedings with no Prescribed Rules of Procedure, thereby depriving him of his fundamental right to fair hearing as stipulated in the 1986 Constitution of the Republic of Liberia.
They also argued that the impeachment trial, conviction, removal from office, and replacement violated Article 72 (B) of the 1986 Liberian Constitution, which guaranteed Ja’neh’s rights to holding and protection to the office as Associate Justice during good behavior until the age of seventy (70) which age of 70 he had not reached prior to his Impeachment.
Cllr. Ja’neh’s impeachment, which officially adjourned March 29, 2019, saw members of the Senate finding the former Associate Justice guilty of misconduct and gross breach of duty of the Road Fund Case, and guilty in the Annie Constance Case, which also entailed official misconduct and gross breach of duty.
The Senators, finding Cllr. Ja’neh guilty, said he exercised an “abuse of discretion, granting a Writ of Prohibition” in the Road Fund Case, which denied the government of collecting levy/taxes in the total sum of US$27 million.
During the voting process, the Senate voted 22 to find him guilty on the count of the Road Fund Case, while 4 Senators voted not guilty. On the count of the Constance Case, which also entailed official misconduct and gross breach of duty, 18 Senators voted guilty; 8 Senators voted not guilty.
As for in the counts of Theft of Records of the House of Representatives and the Impeachment Prohibition, which are considered official misconduct, 14 Senators voted guilty; and 12 Senators voted not guilty. Cllr. Ja’neh was impeached by the House of Representatives on August 28, 2018. His impeachment trial began on February 14, 2019, and officially adjourned on March 29, 2019.