Anyone who follows the Court of Justice of the Economic Community of West African State would have no problem agreeing with any observation that one major issue that has so far tested the jurisdiction of the court is the issue of the insistence of the court that exhaustion of domestic remedies is not a feature of admissibility before the court. It is also not difficult to observe that, notwithstanding the consistent practice of the court in this regard, member States, as defendants, have equally kept on the pressure on the court with regards to exhaustion by constantly raising it in cases filed against them before the court, as a threshold issue.
The beauty of the Mado Fidegnon Frederic v. State of Togo is that it shows that beyond exhaustion of domestic remedies, the court can well protect its jurisdiction from cases that ought not to come before it by other mechanisms and by the same mechanisms protect member States from defending vexatious cases. One of such mechanisms is the doctrine of non-retroactivity invoked by the court and applied to reject the Applicant’s Application in this case.
In this case, the Applicant pleaded the violation of his human rights, but the violation he alleged occurred between April 1993 and December 1994. In defence, the Respondent State raised several grounds of preliminary objection. The chief objection was non-exhaustion of domestic remedies on the ground that the Applicant ought to have first appealed to an Administrative Chamber put in place by municipal law to hear appeals of that nature and not to directly take the case to the ECOWAS Court of Justice, 20 years after the alleged violations. The State further argued that the cause of action has been extinguished by statutory time limit and that at the time of the alleged acts of torture, torture had not yet been constituted as a crime.
In its decision, as is the practice of international courts, the court appraised the objections against its material jurisdiction and ratione temporis jurisdiction.
Regarding its material jurisdiction, it noted that the application of the applicant was founded on articles 9(4) and 10(d) of Supplementary Protocol A/SP.1/ 05 of 2005 that amended Protocol A/P1/7/91, of the Court, and also that the claims were based on violations of the African Charter on Human and Peoples’ Rights and other international human rights protection instruments. Ipso facto, the court held that its material jurisdiction was established.
As per ratione temporis jurisdiction, the court painstakingly assessed the date the cause of action arose (the critical date) against the date it was entitled to exercise jurisdiction over the Respondent State at the suit of individuals, such as the Applicant. To be able to reach the appropriate decision in the case the court reasoned:
In the instant case, as we have seen, the facts relied on by the Applicant and which constitute the cause of action, allegedly occurred between April 1993 to December 22, 1994 and March 1996, a period well long before the legal attribution of human rights jurisdiction to this Court. This means that it is up to the Court to find out if its jurisdiction may rule on facts that occurred before the date of entry into force of the aforementioned Additional Protocol of 2005.
Having so reasoned, the court reminded itself that jurisdiction in matters of human rights violations was conferred on it by article 9 of Supplementary Protocol A/SP.1/05 of 2005, which amended Protocol A/P1/7/91 of the Court, entered into force provisionally on January 19, 2005, with the signature of the Signatory Heads of Member States (including the signature of the Head of State of the Togolese Republic) and definitively into force after its ratification by at least nine (9) of the signatory States.
With this clarity of reasoning, nothing was left to doubt that to have invited the court to adjudicate on the matter, was to drag the court into the dark alley of an avoidable conflict between the court the member State, right in the face of an immutable principle of international law that protects States from being bound by Treaty without their consent. In any event, it is equally a well-established rule of international law that no State can be compelled to submit a dispute to judicial settlement without its consent.
Indeed, as the court rightly concluded, to have heard the case would have amounted to a retroactive application of the 2005 Supplementary Protocol to the Respondent State of Togo, which had not consented to such a jurisdiction as at the time the cause of action arose. Ipso facto, the court rejected the claim.
What is remarkable about this case, as was in many other cases is the undue fixation of the respondent on the issue of exhaustion, which it allowed to becloud the real ground of objection – non retroactively. It is interesting that the court had to raise this issue and deal with it suo moto. Such is how respondents’ States before the court have allowed the doctrine to distract them from putting up a good defence before the court. Despite knowing the position of the court on exhaustion, respondent States have continued to offload their baggage of non-exhaustion before the Court at the expense of a proper defence, in that once their preliminary objection based on non-exhaustion fails (as it is bound to do), their entire defence collapses like a pack of card.
Hopefully, Respondent States would take steps to train their representatives to look beyond the technical defence of non-exhaustion to the substantive defences that may be available in the case.
