The Centre for Community Law has written to the President of the ECOWAS Court of Justice, Hon. Justice Ricardo Claudio Monteiro Goncalves, setting out a detailed set of observations on Supplementary Act A/SA.1/12/25, the instrument that recently consolidated the Court’s constitutive texts into a single piece of legislation. The letter, signed by the Centre’s Executive Director, Professor Amos Enabulele, was also copied to the Director of Legal Affairs at the ECOWAS Commission, Mr Gaye Sowe, and the Court’s Chief Registrar, Dr Yaouza Ouro-Sama. The report is the product of an extensive study carried out by the Centre.

In the covering letter, the Centre commended the Court and the Commission for undertaking the harmonisation exercise, describing it as important work in updating and consolidating the Court’s legal framework. It stressed that the accompanying memorandum, prepared by a team of five legal researchers, was offered in a constructive spirit, with the stated aim of contributing to the continued development of the Court’s jurisprudence rather than scoring points against the drafters.

The memorandum itself opens by praising the decision to carry out the reform through a Supplementary Act, a route that, unlike a treaty or protocol, does not require ratification by individual Member States. Citing established scholarship on ECOWAS lawmaking, the Centre described this as a strategic choice that allowed several important amendments to be introduced despite the limited scope available under that legislative route.

Among the changes welcomed by the Centre is the revision of article 9(3) on limitation, which resolves a long standing discrepancy between the English and French versions of the text, a discrepancy that had previously produced conflicting decisions from the Court itself before being settled in Federation of African Journalists v The Gambia. The letter also praised the clarified arbitration provision in article 9(5), the removal of a redundant clause previously found in article 9(e), and the amendment to article 24 that now renders all judgments of the Court binding, without the earlier qualification limiting that status to judgments with financial implications for Member States.

The memorandum was not uniformly complimentary, however. It flagged a significant concern over article 9(6), arguing that a provision which had functioned well in practice, as seen in cases such as Petrostar (Nig) Ltd v Blackberry (Nig) Ltd, has now been revised in a way that removes individuals entirely from its scope, confining the relevant jurisdiction to disputes between Member States or with ECOWAS itself. The Centre said it struggled to see why the change was necessary and predicted that neither States nor the Commission were likely to make use of the provision as redrafted.

A further concern was raised over article 10(6), governing preliminary references from national courts. The Centre noted that replacing the phrase ‘any of the parties’ with simply ‘the parties’ could inadvertently require a joint request from both sides before a reference can be made, making an already underused mechanism even less likely to be invoked by cautious national courts.

Perhaps the most consequential observation in the memorandum concerns third party proceedings and intervention, procedures that currently exist only under the Rules of Court and have no footing in the Act itself. The Centre argued that this represents a gap the Supplementary Act failed to close, and pointed to article 27(5) as a possible interim basis for such proceedings pending a future amendment that would give the Rules a clear statutory anchor.

The Centre closed its submission by recommending that any future review of the Court’s instruments should begin from the Court’s own accumulated jurisprudence, describing this as the soundest method of ensuring that Community law continues to develop as a living legal order. It noted that ECOWAS has no institution comparable to the International Law Commission to guide such an exercise, but expressed confidence that the Court’s case law offers a rich and largely untapped resource for future legislative work.