Top Nigerian lawyer writes to ECOWAS Chairman, President Akufo-Addo, on coup d’etats

Femi Falana, a renowned Nigerian lawyer and former president of the West Africa Bar Association (WABA), has written an open letter to the Chairman of the Economic Commission of West African States (ECOWAS) and President of Ghana, Nana Addo Dankwa Akufo-Addo, on the spate of political upheavals in the sub-region.

Mr. Falana has been at the forefront of defending journalists and other human rights advocates across Africa for over two decades now. He has defended and secured victories for dozens of journalists and activists in Nigerian courtrooms and at the ECOWAS Court.

In recognition of his exceptional qualities and dedication to human rights and criminal law, Mr. Falana was a recipient of the International Bar Association’s Bernard Simons Memorial Award in 2008. He is a board member of the Media Foundation for West Africa (MFWA).

Below is his letter to President Nana Addo Dankwa Akufo-Addo.

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Dear President Akufo-Addo,

Re: Request for the Economic Community of West African States (ECOWAS) to take preventive measures to stop coup and unconstitutional change of government in the sub-region

I am writing to urge you to provide the leadership necessary for the Economic Community of West African States (ECOWAS) to apply the ECOWAS treaties and protocols on democracy and human rights with a view to adopting preventive measures to promote the rule of law, end impunity of political leaders, and ensure full respect for citizens’ human rights including socio-economic rights.

Following the latest military coup and unconstitutional change of government, the Republic of Burkina Faso has been suspended from the ECOWAS. The coup came on the heels of at least five previous coups from the member states of ECOWAS.

Unfortunately, it has become routine for ECOWAS leaders to act after-the-fact rather than taking preventive measures to enforce respect for human rights, the rule of law, and end impunity of political leaders who frequently seek to change their national constitutions for personal gain.

I am concerned that for many years, official impunity, abuse of human rights, grand and systemic corruption, flagrant disregard for the rule of law, and grinding poverty arising from economic mismanagement have been pervasive throughout the sub-region, and indeed the African continent.

Other legal and constitutional infractions include unconstitutional revisions of national constitutions to keep political leaders in power, and manipulating electoral and other laws to disqualify political opponents and enhance electoral success for the incumbent.

The persistent failure of the leadership of ECOWAS to take a preventive and active role in dealing with these threats to democracy, human rights, and the rule of law has continued to contribute significantly to recurring coups and unconstitutional change of governments in many countries.

Unlawfully amending national constitutions to remain in office is acting above the law, contrary to ECOWAS treaties and protocols, and other international standards, as well as seriously undermine member states’ democratic systems. It is unsurprising that many of these political leaders continue to act with impunity and do not fear condemnation and sanctions from the ECOWAS.

It is disturbing to note that poverty is on the ascendancy in spite of the abundant resources of the member states of the ECOWAS. To address the economic crisis, every member state should end the foreign domination of their economy in accordance with Article 21(5) of the African Charter on Human and Peoples Rights, which has imposed a duty on all Governments in Africa to “eliminate all forms of foreign exploitation particularly that practiced by international monopolies so as to enable their peoples to fully benefit from the advantages derived from their national resources.”

Despite the treaties and protocols on democracy and human rights, the ECOWAS has continued to tolerate member states with significant democratic and rule of law deficits. These member states regularly conduct elections that are neither fair, credible, nor free.

More worrisome is the fact that political opponents and activists who oppose illegal constitutional amendments and other infractions are either jailed or killed. Despite the illegality and grave human rights violations in many of these member states, the ECOWAS has continued to send election observers to these countries who usually endorse questionable and seriously flawed elections under a purported constitutional amendment.

Furthermore, the lack of political will to respect human rights, reject impunity, and obey the rule of law is exacerbated by the fact that, to date, only Six of the sixteen member states of ECOWAS have appointed ‘implementing authorities’ to enforce the decisions and judgments of the ECOWAS Court of Justice in Abuja. The obligation of ECOWAS leadership to take preventive and effective measures to address democratic and rule of law deficits in several member states is a central part of the responsibility to protect.

Exercising the responsibility to protect would enable member states to address these deficits, as the responsibility to protect incorporates and embraces three important elements: firstly, the responsibility to prevent: to address both the root causes and direct causes of coups and unconstitutional change of government. Secondly, the responsibility to react: to respond to situations of leaders of ECOWAS countries unlawfully changing national constitutional to suit their personal ambitions, blatantly violating the human rights of their own people, and failing to obey the rule of law. Thirdly, the responsibility to rebuild a culture of respect for democratic principles, human rights and the rule of law.

The failure to take effective and meaningful preventive measures to address these democratic and rule of law deficits will continue to undermine the legitimacy and ability of the ECOWAS to consistently deal with military coups and unconstitutional changes of government in the sub-region.

The primary responsibility for implementing human rights lies with Governments. But ECOWNAS leaders can no longer use as a pretext the ground of ‘national sovereignty’ for their failure to respond to gross and systematic violations of human rights that affect community citizens and reject impunity where states fail to perform their legal and constitutional duties.

In light of recent developments in Burkina Faso and elsewhere in the subregion, I am calling on the ECOWAS to show leadership and strong political will in this matter, and that you should, in your position as Chairman of the ECOWAS, convene an extraordinary session of the Authority of the ECOWAS in order to discuss the matter, and the recommendations proposed in this letter.

The ECOWAS should also make the meaningful and effective implementation of its treaties and protocols on democracy and human rights, and obeying the rule of law a condition for retaining the membership of the institution.

To prevent members of the armed forces from hiding under the pretext of fighting insecurity to sack constitutional governments, the Multinational Joint Task Force (MNJTF), (a combined multinational formation, comprising units of the armed forces from Benin, Cameroon, Chad, Niger, and Nigeria) should be revived, expanded and funded to fight insurgency in the region.

Finally, I also urge you to use your position to ensure that the ECOWAS is able to assert its mandates under its treaties and protocols to immediately push for full and effective respect for democratic principles, human rights, transparency and accountability, as well as the rule of law in each of its member states.

While thanking Your Excellency for your precious time and attention I look forward to continued dialogue on the issues raised in this letter.

Yours sincerely,

FEMI FALANA, SAN, FCI Arb.