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Where is ECOWAS headed? Some legal reflections from the Nigerian case

Where is ECOWAS headed? Some legal reflections from the Nigerian case


by Lionel Zevounou

Party taken. The sanctions imposed on Niger after the coup d'etat by part of the army, and the threat of military intervention, raise questions about the role of the regional organization, which has evolved since its creation in 1975, and raise the question of its short-term future.

Niger is the fourth country in the sub-region to be subjected to a military coup in less than three years. It joins the growing list of West African countries that have entered such a spiral (Mali, Guinea, Burkina Faso). Each time, it is the same scenario and the same elements of language: the Economic Community of West African States (ECOWAS), the West African Economic and Monetary Union (UEMOA), supported by the African Union (AU) and the "international community" (or what remains of it), call for the restoration of "constitutional order" and inflict a train of sanctions economic more or less important1. In the case of Niger, some have pointed out that the range of said sanctions was even wider than those that prevailed with regard to Mali in 2022, without success.2

In retreat under President Buhari, Nigeria, now governed by the newly elected President Bola Tinubu, current President of ECOWAS, has decided to reinvest the leading role it played in favor of sub-regional integration; except that, this time, it is not a question of proposing a unifying project with a view to better economic and political integration, but of a possible military intervention. Let's say it straight away: such an intervention, assuming that it sees the light of day, would not only be risky, but also destructive of the political project of ECOWAS and WAEMU – or what remains of it.

It is not the purpose of this short text to take sides with one camp to the detriment of the other. African people are expressing their exasperation at being ruled by corrupt and incompetent civilian or military leaders. Whatever the "international community" may say, there are no "good guys" and "bad guys" in this sub-regional reconfiguration. Right behind the social movements that express themselves, there are peoples who are fed up with endogamous elites, often subservient to Western, Russian or Chinese agendas, and who aspire to a better social and political future; this people asks for nothing other than peace, stability, an adequate redistribution of national wealth and an end to impunity linked to the mismanagement that has plagued the African continent since independence3. It is in this fertile ground that the military make the bed of a questionable legitimacy from the point of view of constitutional legality; it is this same breeding ground that fuels the fantasy of demagogic political alternatives, empty of credible and supposedly pan-African political projects.

A vague legal basis

It is worth recalling, in this new whirlwind that is shaking West Africa, a few important elements. And first, to ask a disturbing question: on what legal basis does ECOWAS intend to intervene militarily? Article 58 of the amended treaty supplemented by protocol A/SP1/12/01 on democracy and good governance additional to the protocol relating to the mechanism for the prevention, management, resolution of conflicts, maintenance of peace and security signed in Dakar in December 2001, does not decide explicitly in favor of a military intervention. It is certainly provided (article 45), in the event of "breakdown of democracy by any means whatsoever“, a range of graduated sanctions, but it is difficult to see the possibility of a firm legal basis authorizing armed intervention.

The authorities of Nigeria should however remember it: the protocols of “Lomé” (1999)4 then of “Dakar” (2001) owe their existence only to the precedent of the hasty intervention of Ecomog within the framework of the civil wars which ravaged Liberia, Sierra Leone then Guinea-Bissau5. At the time, these were fratricidal wars that led to atrocities and had repercussions throughout the sub-region.6. This is not the case with Niger, Mali, Guinea or Burkina Faso.

That's not all. Assuming that a very broad interpretation of protocol A/SP1/12/01 would justify the possibility of recourse to armed force, it would be necessary to be able to overcome other pitfalls related to the internal coherence of the ECOWAS treaty7. Many provisions conflict with the penalties imposed. A landlocked country, Niger falls within the case provided for in Chapter XIII of the treaty, which includes an article 68 specifically dedicated to this issue:

«Member States, taking into account the economic and social difficulties that some Member States may experience and particularly island and landlocked Member States, agree to accord, as appropriate, to such States special treatment with respect to the application of certain provisions of this Treaty8 and provide them with any other necessary assistance».

In this context, reducing Niger's energy supply hits ordinary Nigeriens first; the same applies to the closing of borders. Moreover, how to reconcile a possible military intervention with article 4 of the modified treaty on the fundamental principles of the treaty recalling:

«(d) [the] non-aggression between Member States; (e) [the] maintenance of regional peace, security and stability by promoting and strengthening good neighborly relations; (f) [the] peaceful settlement of disputes between Member States, [the] active cooperation between neighboring countries and [the] promotion of a peaceful environment as a prerequisite for economic development».

Many inconsistencies

In addition, another disturbing question arises, linked to the first. To follow the coherence that presides over the justification of a possible military intervention, it would be necessary to restore the rule of law in Niger. Fine, but is ECOWAS ready to really assume the legal consequences? Whether it is Mali, Guinea or Burkina, the question of a possible responsibility of the institution remains open. Put in a prosaic way, who will reimburse the losses suffered by local and regional economic operators in view of the sanctions imposed? What financial compensation or amicable settlement mechanisms does ECOWAS or UEMOA provide after sanctions in the event of litigation before their respective jurisdictions brought by injured companies (traders, insurers, banks, etc.)? We remember in this regard the order of March 24, 2022 of the WAEMU Court of Justice which suspends the sanctions imposed on the Malian State by the Conference of Heads of State and Government.9

These are only a few inconsistencies, but it seems that at no time have the various legal aspects of this problem been addressed. The Community Court of Justice was also not consulted. But basically, what is the point of reasoning from texts (except to be naive), in a community whose leaders do not feel bound by the legal mechanisms they rely on? What good is the law, since it seems since the case of Mali that it is possible to afford everything when the decisions come from the all-powerful conference of heads of state and government?

The sanctions imposed on Niger raise the question of whether ECOWAS can really be considered as a community of law or as an instrument of collective discipline in matters of "good governance" and "legal state"10. This question is not insignificant: it says a lot about the representations that shape the daily life of ECOWAS. Some (heads of state in place) see it as an instrument to protect themselves in their respective countries from possible coups; the others (Western partners) perceive the institution as a potential instrument of indirect intervention within a broader international rivalry; others finally (military elites) demonize the institution by making it carry the weight of evils for which they do not want to be accountable. The space given to the aspirations of the African peoples is, in such a configuration, reduced to very little.

Parliamentarians often ignored

President Tinubu took care, before engaging his country in a military confrontation, to seize the Nigerian Parliament for consultation with a view to a possible use of force.11. As we write these lines, the Nigerian Senate, while condemning the coup in Niger, has opposed, in a resolution of August 5, 2023, the use of force. At the same time, the Senate invited the ECOWAS Parliament (an institution generally ignored by the usual summits) to follow suit.

In doing so, we measure the legal fragility of the decisions taken by the Conference of Heads of State and Government12. In most cases, parliamentary procedures and debates are simply avoided. The case of Niger appears in this sense to be exceptional (although revealing) because it would a priori involve the Nigerian armed forces.

The contrast with other countries is obvious. Senegal, for example, through its Minister of Foreign Affairs, has also said it is ready to send troops to Niger. It is doubtful that the Senegalese president took the trouble to consult Parliament beforehand. But how could it, in a French-speaking area inherited from a colonial legal system where the law is often equated with simple command? However, the protocol A/SP1/12/01 already mentioned, encourages, in a logic of "good governance», to a constitutional convergence, in particular the promotion of a parliamentary culture (article 1 a).

Give in to the game of the great powers?

Since the pax americana 1990s13, the saying: "African crises must find African solutions", in most cases means that "African crises must find African solutions as long as they coincide with the Western agenda". As this pax americana questioned by Russia, China and other members of the BRICS (Brazil, Russia, India, China, South Africa), ECOWAS seems to be becoming for the West the preferred vehicle for indirect interventions disguised as the return to “constitutional order” or “good governance”; everyone is aware that a direct military intervention by France or the United States would provoke further discredit – even violent reactions – in a context of massive rejection of France's African policy in French-speaking Africa.

The contours of a potential military intervention by ECOWAS remain secret, but it seems that it will not be possible and practicable without minimal logistical and military support from Western partners. Such an affirmation should not lead to believe that President Tinubu would be only a "puppet" in the hands of the West.14. ECOWAS is crossed by internal and autonomous dynamics. Tinubu actually joins former President Olusegun Obasanjo in his desire to make Nigeria a driving force for sub-regional stability.

Here we touch on the heart of the problem: is it permissible to turn a blind eye to the fact that African soldiers could go and fight other African soldiers? What about the fragmentation of the Hausa linguistic group, shared between Niger, Nigeria, Chad, Benin, Togo and Ghana? For what purposes? And with what results? We still have in mind the dirty wars waged during the Cold War in Angola (1975-2002), in Mozambique (1975-1992), between Chad and Libya (1976-1987)… The list is long, but it attests that n the international order, Africa has been sufficiently the site of proxy wars between great powers. This, President Tinubu cannot ignore, he whose country was ravaged by a most atrocious civil war fueled by the great powers, including France (1967-1970). Algeria, which shares a 1000 km border with Niger, has made known its opposition to any military intervention; a statement from the Ministry of Foreign Affairs published on August 1, 2023 condemns the coup and calls for the restoration of the “rule of law” while favoring the path of dialogue. The risky Western intervention that led to the destabilization of Libya is still on everyone's mind...

Rebuilding a political project

The leaders of ECOWAS have probably also forgotten that the organization was born under the impetus of two heads of state who cannot be said to have been democratically elected: the Nigerian Yakubu Gowon and the Togolese Gnassingbé Eyadéma. Gowon, in particular, was aware that it was necessary to break with the game of Western powers, and that this was only possible by creating a sub-regional space of solidarity. When it was created in 1975, it was for ECOWAS, like the European Economic Community (EEC, now the European Union), to facilitate intra-community trade. This primary mission has obviously failed; it was overshadowed by the continued security and stability from the late 1990s.

Because of this genesis, the texts of the Community do not lend themselves well to this new role of sub-regional policeman. Worse: clearing the way for military intervention in Niger aimed at restoring "constitutional order" and "democracy" would create an unfortunate precedent, given that it does not exist in West Africa (except perhaps in Cape Verde) of democratic paragon, except to confuse democracy and political alternation. From a strictly legal point of view, the situation therefore appears blocked. Only the possibility of economic and financial sanctions appears legitimate with regard to the founding texts of ECOWAS. We must resolve to dialogue, and no doubt also to a serious reinvestment in the sub-regional political project.

What the African peoples expect at least is a collective plan to fight against jihadism, a more transparent redistribution of wealth, broader access to social rights and full and complete enjoyment of their political rights. No one can forget that the failure of pan-Africanism is linked to the antagonisms generated by the Congo crisis (1960-1965): the Monrovia group then opposed that of Casablanca, nipping in the bud the possibility of a african federal15. African leaders cannot ignore this page of the continent's political history at a time when the world is once again splitting into antagonistic blocs. This evolution of the international order requires breaking with technocratic habits in order to breathe new direction into the West African political project. Exposed to a significant risk of food insecurity, Nigeria (but also Niger as a result) must seize the crisis in Niger as an opportunity to go even further in West African integration. Wouldn't it be time to federalize competences in the field of food security or access to healthcare rather than using the limited resources of our governments to finance a risky use of force?

A military intervention would have serious consequences. It would further destabilize the sub-region by fueling jihadism; it would tip African public opinion all the more easily into the camp of Russia and China; it would create the seeds for a future implosion of ECOWAS and UEMOA.

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