By a human rights lawyer, Dan Kovalik, in regards to the forthcoming ECOWAS Conference being held in Cape Verde 9-12 May

The Economic Community of West African States (ECOWAS) can best be described as “a West African version of the EU. ”Unlike the European Union, however, the level of integration remains limited, mired in regional and bilateral  disagreements, but progress is being made. ECOWAS is headquartered in the Nigerian capital of Abuja and Nigeria is by far the largest financial contributor to grouping. One notable, perhaps even surprising, area in which there has been significant progress towards integration has been in the settling of commercial and human rights disputes through the ECOWAS Court of Justice(“the Court”), established in 1993.

In the intervening years the mandate of the court has broadened from an initial focus on cross-border commercial matters, to general commercial disputes and ultimately a landmark move in 2005 to include a continent-leading human rights mandate. The Court itself has grown in stature and is today recognised as one of the most respected human rights courts not just in Africa but globally. One unique aspect of the Court is the fact that a person can make an application to the Court even if local remedies have not been exhausted. The noted Nigerian human rights lawyer and activist Femi Falana, who is regarded by many as the “Father of the Court,” explained this by saying “Too often a person would be detained for months even years on end awaiting the end of a domestic legal process in one of the ECOWAS member states. This was a tool to just keep someone in de facto imprisonment with limited recourse to justice. The clause in the ECOWAS Court’s rules of procedure permitting an applicant to seek relief even before exhaustion of domestic remedies was a way for this to take place.”

The Court’s annual international conference, this year being conducted under the theme of “ECOWAS Integration model: The Legal Implications of Regionalism, Sovereignty and Supranationalism,” (“the Conference”) is taking place in Cape Verde from 9-12 May. The Conference is an important event as it provides an opportunity for jurists, advocates, scholars and lay people to learn about the important role of the Court in legal matters of the ECOWAS. This is especially so when it comes to the recognition that has been bestowed upon the Court for its work in the advancement of Human Rights which makes the selection of Cape Verde as the host nation of the Conference all the more puzzling and disappointing.

It is an undisputed fact that over the past two years, the Cape Verde regime of Prime Ulisses Correia has shown regular contempt for the Court. Cape Verde has openly failed to comply with binding rulings of the Court, attempted to subvert well-established protocols of the Court for its own political expediency and taken every opportunity it can to diminish the authority of the Court. All of this whilst continuing to milk the full benefits of its membership of the ECOWAS, to which it contributes next to nothing financially.

In particular, the actions of  Ulisses Correia’s Cape Verdean regime in the matter of Venezuela’s Special Envoy Alex Saab, between June 2020 and October 2021 were motivated only by a desire to do whatever it took to please the United States in its well-documented pursuit of politically motivated hegemony against Venezuela. The lies and half-truths told by Cape Verde during this period, according to Femi Falana have “left a stain on all of Africa.”

Ulisses Correia’s regime’s behaviour in the period can only be described as schizophrenic. Cape Verde announced that it did not recognise the authority of the Court, but its own former Minister of Justice is not only a member of the panel of justices of the Court, but was also one of the three justices who decided in favour of Alex Saab; the Correia regime then claimed it had “not participated in the proceedings” when it clearly did having appointed Cape Verdean lawyer Henrique Borges as its attorney and who attended the hearings; the regime further claimed that the Court did not have the authority to adjudicate on human rights matters when Article 11 of the 2005 Protocol is clear that once it has been signed by 9 of the 15 ECOWAS member states that it became binding upon all members – in the end 14 of the 15 signed with on Cape Verde missing the signing ceremony and on and on.

Suffice to say, despite bizarre statements to the contrary, Cape Verde actively and fully participated in the legal process which resulted in the Court declaring not once, but twice in 2021, that the detention of Alex Saab by Cape Verde was “illegal, that he be released immediately, that the extradition process being conducted against him be terminated.” The Court also ordered the payment of compensation by Cape Verde to His Excellency Alex Saab for the damage suffered by him.

The Court ruled that Alex Saab’s arrest was unlawful, Alex Saab must be released immediately, and the extradition process was ordered to be terminated. In addition, the Court ordered Cape Verde to pay compensation to Alex Saab for the damage done to him.  On the flip side, the cynical response of Ulisses Correia, following his regime’s consent to the forcible removal of Alex Saab from Cape Verde by the United States, was “We are a country with international commitments (sic)…We have to give something in exchange for our participation in cooperative security.”

But here we are on the eve of the Court’s highest profile annual gathering, and it is being held in (drum roll, maestro!)…Cape Verde! Presenting Cape Verde with an opportunity to boast of its self-styled position as “the model African democracy” is tantamount to self-harm by those that made the decision to hold the Conference in Cape Verde. The international community has watched open-mouthed as Cape Verde has further ingratiated itself with the United States by ignoring a binding decision of the African Commission on Human and People’s Rights (ordering the cessation of the extradition process being carried out against him), the United Nations Human Rights Committee and letters of rebuke from four UN Working Groups and once UN Special Rapporteur. That is quite a Grand Slam of Notoriety for any country but unimaginable for a ten island archipelago with a population of a little over 500,000.

Cape Verde’s deliberate act of detaining a diplomat who is entitled to clear and unambiguous immunity and inviolability establishes a dangerous precedent. It casts aside centuries of international law which governs the movement of diplomats and leaves open the real possibility that any diplomat, from any country, in any part of the world, can be captured and detainedj ust to satiate politically motivated judicial overreach of another state. The awarding of the Conference to Cape Verde must be recognised an error of judgement on the part of the ECOWA Secretariat and the Court should distance itself from the decision making process which resulted in this.

In the words of Dr Femi Falana “the extraterritorial politically motivated judicial overreach of the United States is a twenty-first century form of colonialism. Africa must wake up to that reality. Africa and Africans deserve better and the only way we will truly achieve independence of thought and independence of institutions is through our own efforts and not through the platitudes of wolves disguised as sheep.”

Dan Kovalik

Daniel Kovalik is a graduate of the Columbia University School of Law and teaches International Human Rights Law at the University of Pittsburgh, School of Law. He can be contacted at +1 412 335-6442.

Download letter to the Federal Republic of Nigeria and ECOWAS from David Velasquez, Ambassador of the Bolivian Republic of Venezuela