Balancing State Accountability and Individual Rights: The ECOWAS Court’s Decision in Melville Roberts v. Republic of The Gambia, ECW/CCJ/JUD/43/24

By Orimogunje Samuel Temitope*
Introduction
It cannot be overemphasised that modern international law revolves around the protection of Human Rights. Human Rights, as loosely defined, are the inherent and innate property that every Homo sapiens possesses and is entitled to. Under international law, every state has been saddled with the responsibility, whether in action or omission, to protect the Rights of its citizens.
These obligations are contained in various human rights instruments, which may be regional – the African Charter on Human and Peoples’ Rights, and the European Convention on Human Rights, for instance – or global – the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights, for instance. 
Also, if there is a violation of these Rights by an organ of the State, agency, or other instrumentality of the State, whether performing duty for the State’s benefit, the state will be held accountable for the encroachment of such Rights. See (Draft Articles on the Responsibility of States for Internationally Wrongful Acts 2001, Article 4). Notwithstanding, if the act or omission is carried out by a private individual, the state will not be accountable for such violation. If the private individual acts under the direction of the State, or there is an element of governmental authority or under the direction of the state, then the State will be held responsible. See (Articles on the Responsibility of States for Internationally Wrongful Acts 2001, Articles 5 and 8; Jack Rockson & Global Agriculture Development v Liberia, ECW/CCJ/JUD/16/24; Algom Resources Ltd v Republic of Sierra Leone, ECW/CCJ/JUD/03/23; Velasquez Rodriguez v Honduras, IACtHR). The subject matter of each cases determines the Charter and jurisdiction that applies. Looking at that of this peculiar case, it falls under the Jurisdiction of the ECOWAS Court and the African Charter. There are common standard of rights by the African Union (AU) and these rights are enforceable against member States upon its violation, with the national Courts of member States given jurisdiction to listen to these matters. This is because all member states of the Economic Community of West African States (ECOWAS) are members of the AU, just as ECOWAS like other regional bodies in Africa, adopts the provisions of the African Charter as its charter of rights pursuant to Article 4(g) of its 1993 Revised Treaty and provides it competent jurisdiction by virtue of Article 9(4) of the ECOWAS Protocol on the Court as amended by the ECOWAS Supplementary Protocol and Article 10(d) of the same Court’s Protocol as amended by the 2005 Supplementary Protocol. This jurisdiction is invoked when there is a violation of Human Rights in a member state.
The case at hand shows how the ECOWAS Community Court protects the rights of civilians in member States by placing responsibilities on the state and also holds the integrity of the sovereign State through the African Charter. The case also crystallises the tenet of Human Rights as the fundamental credo of International Law.
Fact of the Case
The Applicant, Mr. Melville Roberts, a Gambian lawyer and diplomat, who also served as the Deputy Permanent Secretary and Legal Adviser at the Ministry of Foreign Affairs in The Gambia, instituted an action against the Respondent, the Republic of The Gambia, which is an active member of the ECOWAS, and a party to the African Charter on Human and Peoples’ Rights 1981 (African Charter) of the violation of his Rights, as provided under section 24(3)(a) of the Respondent’s constitution of 1997, and Articles 2, 3, 5, and 7 of the African Charter on issues relating to the unlawful suspension, allegation with blemish without the presumption of innocence, fair hearing and equal treatment as enshrined by the African Charter. See (Djot Bayi & Ors v Federal Republic of Nigeria, 2004–2009 CCJELR). Mr. Melville Roberts was accused of rape by women with whom he had previous romantic relationships over the years, and this led to the criminal investigation by the Respondent’s State actors. This investigation included the police and other officials. The Applicant claimed that in 2019, his former girlfriend tried to blackmail him to extort money and also take his mobile phone, and started a campaign on social media by alleging that he raped her. Shortly after, other women from his past relationships joined his ex-girlfriend in this campaign and continued with the accusation, citing events from 2011, 2016, and 2017, respectively. The Respondent then suspended the applicant from his duty, while some non-state actors launched a social media trend titled #SurvivingMelville in The Gambia. According to the Applicant, this was against his presumption of innocence. He further stated that one of the State actors, was the Minister of Interior and the Presidential Adviser, who went on social media and accused him of another rape allegation against his wife, but later deleted the post.
During this ongoing public uproar, the Respondent, on 28 August 2019, published in The Standard, a newspaper that circulates throughout The Gambia, that he, the applicant, had been suspended from his duty as the Deputy Permanent Secretary and his diplomatic passport cancelled. Due to the turn of events, the Applicant also took time off his PhD research at the University of Oxford to travel back to The Gambia to clear his name and submit himself to the police for further investigation. The Applicant travelled back to The Gambia from the United Kingdom to respond to these allegations, but was suspended from his job and was not reinstated even after the police had cleared him of any wrongdoing.
This was against Section 24(3)(a) of The Gambian Constitution, as they subjected him to public ridicule and suspension from work without any charge against him, which violated his Right to fair hearing and presumption of innocence, and also the Right to work and equal treatment. The Applicant pleaded all of these in law and sought reliefs requesting the Court for a declaration that the media trial by the state actors and non-state actors in the Respondent’s territory should be declared unlawful as it violates Articles 2, 3, and 7 of the African Charter on Human and People’s Rights; also a declaration that the Respondent is not competent to put the applicant on trial as the police found no evidence that he committed any of these offences, as this violates Article 7 of the African Charter; also an order mandating the protection of the Applicant against media trial by both state and non-state actors and from further violation of the applicant’s rights without due process of law; an order of perpetual injunction restraining the respondent from charging the Applicant with any criminal offence; and a sum of $500,000.00 (Five Hundred Thousand Dollars) for the breach of his rights as damages and $10,000.00 (Ten Thousand Dollars) for institution of the suit.
The Respondent did not file a statement of defence or other process in response to the action in accordance with the Rules of the Court. The Applicant went further, on 25 November 2022, and requested a default judgment.
Decision of the Court
The Court, looking at the admissibility of this case, observed that the facts pleaded by the Applicant appear to show that Rights have been violated, and pursuant to Article 9(4) of the ECOWAS Protocol on the Court as amended by the ECOWAS Supplementary Protocol and Article 10(d) of the same Court’s Protocol as amended by the 2005 Supplementary Protocol, it gives jurisdiction to the Court to listen to matters involving human rights. See (Mohammed Morlu v Republic of Sierra Leone, ECW/CCJ/JUD/04/24; Aziagbede Okou & Ors v Republic of Togo, 2013 CCJELR 167). Giving the default judgment, as the Respondent failed to provide a defence, the Court noted that on the matter of the media trial by state and non-state actors, a general question must be asked: whether the violating conduct or omission by the respondent was carried out by the State’s organs, or any instrumentality under its authority, and also whether it was carried out by private persons not attributable to the state. This question by the court seeks to highlight the basic concept of state responsibility imposed on states by international law, the ICJ in this context has decided on plethora of cases (Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States) [1984] ICJ Rep 392, United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran) [1980] ICJ Rep 3) that states are responsible by acts or omission done by it organs. This acts or omission will be seen as if they were done by the State itself. This rule is to create accountability and collective responsibility on every organ in the government and to safeguard the lives and welfare of it citizens. Looking at the evidence brought by the Applicant, it was shown that the media publications were published online by private individuals motivated by public interest in the accusations. In the matter of the Minister, Mr. Ahmed, being a state actor and having made some publication on his Facebook posts, the Court held that the Facebook post merely condemned rape in general terms and called for the investigation into the allegation made against the Applicant. Also, the publication was made from his private Facebook account rather than through an official press statement or government social media account, and it does not think that it was made in an official capacity that can be attributed to the Respondent. The Court further stated that the Respondent preventing the media and private individuals from discussing this topic would violate their obligations under Articles 1 and 9 of the African Charter, which is a duty to promote freedom of speech and not to suppress it. See (Konate v Burkina Faso [2014] 1 AfCLR 314; Incorporated Trustees of Laws and Rights Awareness Initiatives v Nigeria, ECW/CCJ/JUD/16/20). The Court agreed that the Respondent was not obliged to prevent or sanction individuals for discussing the accusation against the Applicant, particularly as the matter is in the realm of public interest. Also, that the Applicant had remedies in civil action against individuals for the tort of defamation and thus, the action of the media trial against the Applicant cannot be attributed to the Respondent. Just to quickly mention here, the reasoning of the court here is sound and unequivocally echoes the preservation of human rights as provided by the African Charter. It is a recommendable action by the judges for clarifying the law concerning public matter and online defamation.  This decision also appears to question the current situation in Africa, and Nigeria in particular where section 24 of the Cybercrime Act 2015 has been misinterpreted on the issues concerning public criticism and the government of Members states have used this laws to harass perceived enemies of the government and allegedly use in silencing voices of opposition. Nigeria offers a classic example in the case regarding Dele Farotimi, Senator Natasha Akpoti, Rhoda Yau Jatau and so many others.
Moving on to the other issue from the Applicant on the matter of the violation of his rights to presumption of innocence, equality, and work through his interdiction. The Court considered the suspension by the Respondent a reasonable action, given the fact that there is no proof of prejudice or victimhood on the Applicant, as he was under investigation, and by this, the Applicant’s rights to work, equality, and presumption of innocence were not violated by the interdiction. The Court stated that, in a criminal investigation, there is a restriction on liberty, freedom of movement, and other fundamental Human Rights. See (Gregory J Todd v Federal Republic of Nigeria, ECW/CCJ/JUD/41/23). The Court also stated that these investigations should be conducted within a reasonable time in order not to place the Applicant in a rough circumstance and incur undue hardship, as the accused may eventually be found innocent. The Court highlighted that the evidence showed the investigation started around July 2019 and ended April 2020, but notes that a four-year delay by the Attorney General to determine the Applicant’s fate and take decisive action is a prolonged pre-trial and it violates the presumption of innocence of the accused. See (Haregewoin Gabre Selassie and IHRDA v Ethiopia, ACHPR, Comm No. 301/05). However, the Court finds that the Applicant was not subjected to pre-trial detention or arrest, so this does not affect his right to be presumed innocent to the extent that it is violated solely due to the delay in the criminal investigations against him. See (Gridin v Russian Federation, Comm No. 770/1997).
On the alleged violation of his Right to equality before the law, the Court found that the Applicant could not prove the discrimination suffered, so that claim was dismissed. But on the Applicant’s right to work, the Court highlights that there is an obligation on the Respondent to ensure that the applicant finds employment and works under satisfactory conditions, requiring the Respondent to refrain from actions which may hamper the Right to earn a living. See (Al Hassan Fadia v Togolese Republic, ECW/CCJ/JUD/17/24).
 In sum, the Court admitted that the Respondent’s prolonged criminal process against the applicant has adversely affected his ability to return to his job, to work, and to earn a living. Therefore, his Right to work was violated. The Court accordingly entered a judgment in default, upholding that the Applicant’s Right to work was violated and awarded the sum of $10,000 (Ten Thousand Dollars), payable in the Respondent’s official currency to the applicant, no later than three months from the service of the judgment. The Respondent State was also ordered to make a definitive determination on the criminal investigation or formally discontinue the process against the Applicant.
Conclusion
Notwithstanding, ubi jus, ibi remedium—as the law speaks, where there is a wrong, there is a remedy. The matter of Human Rights is an integral part of international law, and the ECOWAS Court has always exercised jurisdiction where there is a violation of Human Rights in its member States. This is carried out without prejudice or bias, making Article 9(4) of the African Charter a potent tool in safeguarding Human Rights. The Court’s decision in dismissing the Applicant’s claims on media trial, rights to fair trial, dignity, and freedom from torture was a well-considered judgment, as the Applicant could not prove any of them. So, entering a default judgment for such claims would have amounted to an unprecedented error. But the Court meticulously observed that the violation was on his right to work and, with enough evidence, entered a default judgment against the respondent by awarding damages, and also gave an order of limitation on how long the suit should continue against the applicant.
The decision of the Court in this case is a commendable one, because it highlights the judicial delay in the African legal system, as most times innocent persons or individuals suffer losses when these decisions are carried out after lengthy years of litigation. The party mostly suffers, because delay defeats equity and makes them victors without victory. In all this illustrated in this case, it shows that the ECOWAS Court upholds the African Charter as it guide and also encourages suits that affect the Right of persons’ violated by their State and also promotes expeditious justice.
 

*Orimogunje Samuel Temitope is an LL.B holder from the prestigious University of Benin, Nigeria.