ECOWAS Citizenship: A Critical Review

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1 American Journal of Social Issues & Humanities (ISSN: ) Vol.2(3) pp May 2012 Available online American Journal of Social Issues & Humanities ECOWAS Citizenship: A Critical Review Michael P. Okom and J. A. Dada Faculty of Law, University of Calabar, Calabar, Nigeria mike.okom@yahoo.com Abstract The issue of ECOWAS citizenship is intriguing and undeniably complex. The Protocol on the Definition of ECOWAS Citizenship includes other onerous requirements which the Protocol failed to clarify. This lack of clarity makes the requirements, superfluous. In this article, the authors have critically analyzed the pre-requisites for the acquisition of ECOWAS citizenshiphighlighting the obvious incongruities. The paper argues in support of a regime whereby the requirements for ECOWAS citizenship are brought in tandem with the constitutional citizenship requirements of the various Member States. The article also discusses the problems related to the treatment of people by Member States in the wake of the spate of migration that ensued, after the introduction of free movement, and liability for trans-border crimes of individuals and corporate entities. Key words: ECOWAS; Citizenship; Crimes; Rights of Citizens Introduction Citizenship as a concept has a long history and dates back to the days of organized Greek and Roman society, from where it was exported to other parts of the world. Citizenship is the bedrock of nationhood. Every nation has within its territory, persons who owe allegiance to it, who have a stake in its existence and to whom the nation owes some obligations, which are usually embedded in the Constitution. This idea is aptly captured by Shevtsov thus: Citizenship is one of the legal institutions whose content and meaning in society depends wholly on the relationship between either the individual or the population at large and State power or authority "1. It is appropriate to explore the background of citizenship as it relates to States and nations as this will provide a fitting context to extrapolate it and apply it to the milieu of the concept of ECOWAS citizenship. In 450 B.C., the popular Assembly of Athens passed a special law spelling out the terms on which citizenship could be acquired. It required Athenian parentage on both sides, without which voting rights could not be exercised. According to Gasiokwu citizenship thus, was the legal-political status which ensured a person in the ancient society the right to participate in public life. 2 In 212 AD, the Roman Emperor Caracalla issued an Edict, granting citizenship rights to all free-born inhabitants of the Roman Empire. 3 As time went on, the granting of Roman citizenship became more difficult because the Romans had become the masters in Italy and did not want to diminish the value of their privileges by sharing them with too many others. 4 1 Shevtson, V. Citizenship of the U.S.S.R: A Legal Study, Moscow: Progress Publications, 1984, P.9. 2 M.O.U. Gasiokwu, ECOWAS, Problems of Citizenship and Free Movement, Jos: Mono Expressions Ltd, 1998 p.26 3 Ibid p.29 4 Ibid 100 O k o m a n d D a d a AJSIH Vol.2 No.3. (May 2012)

2 With respect to privileges, Fowler says that the Roman Citizen was the most highly privileged person in the civilized world of that day. The great price of his citizenship was really, the legal protection of his person and his property wherever he might be in the Empire. No one could maltreat his person with impunity 5. The foregoing is exemplified in the Acts of the Apostles with respect to the breach of the Apostle Paul s Roman citizenship rights. The relevant passage in the Book of Acts states: But when they tied him up to be whipped, Paul said to the officer is it lawful for you to whip a Roman citizen who has not even been tried for any crime? When the officer heard this, he went to the commander and asked him, what are you doing? The man is a Roman Citizen? So, the commander went to Paul and asked him Tell me, are you a Roman citizen? yes answered Paul. The commander said, I became one by paying a large amount of money, But I am one by birth, Paul answered 6 Thereupon, Paul was released and the officer was full of trepidation for fear of the consequences of having mistreated a Roman citizen. Citizenship generally is contextualized within the milieu of national/municipal laws. Every country of the world has its own policies, principles and legislation on the acquisition, rights, liabilities and loss of citizenship. From the onset, it became clear that citizenship carried with it a host of privileges. The ECOWAS Protocols on Free Movement encapsulate many privileges enjoyable by ECOWAS citizens and this underscores the appropriateness of discussing the concept of citizenship before delving into the core aspects of free movement of ECOWAS citizens, residence, establishment and the free movement of goods and capital. ECOWAS citizenship somehow belongs to an altered category of citizenship in view of the fact that ECOWAS is a supranational organization, encompassing various Member States each with its own citizenship regime. Thus, citizenship rules do not belong in an abstract, separate compartment that is peculiar to ECOWAS qua the regional body that it is. The citizenship requirements of ECOWAS are inevitably linked with those of the various Member States because as a supranational organization, ECOWAS does not exist separately from the Member States. Definition, Meaning and Acquisition of ECOWAS Citizenship Article I of the Supplementary Protocol on the Code of Conduct for the Implementation of the Protocol on Free Movement of Persons, the Right of Residence and Establishment 7, states that, Community citizen or citizens means any national or nationals of a Member State who fulfill the conditions stipulated in the Protocol establishing the Community Code. The Protocol establishing the Community Code is the Protocol Relating to the Definition of Community Citizen. 8 The Protocol was set against the background of Article 27 of the original Treaty of the Economic Community of West African States as amended, which stipulated that Community citizens were citizens of Member States that satisfy the conditions to be defined in a Protocol establishing a code of citizenship for the Community. The said Article, 27, provides that: Citizens of Member States shall be regarded as Community citizens. This provision is further reflected in Article 1 of the Protocol Relating to the Free Movement of Persons, Residence and Establishment, which states simply that A citizen of the Community means a citizen of any Member State. The Protocol relating to the definition of 5 Fowler, W.W. Rome (n.d), p.132 (Quoted in M.O.U Gasiokwu, Ibid) 6 Acts of the Apostles Chapter 22, verse Supplementary Protocol A/SP.2/7/85 8. Protocol A/P 3/5/ O k o m a n d D a d a AJSIH Vol.2 No.3. (May 2012)

3 Community Citizen, is also set against the background of the right of Member States who are free to exercise their sovereign right in conferring their citizenship on any person they decide to. Article 1 of the Protocol 9 is the fundamental provision relating to the definition of ECOWAS citizenship. It states that a citizen of the Community is: Article 1(a): Any person who is a national by descent of a Member State and is not a national of any non-member State of the Community; 1(b): Any person who is a national by birth of any of the Member States either of whose parents is a national by sub-paragraph (1) above, provided that such a person on attaining the age of 21 decides to take up the nationality of the Member State. However, a person who had already attained the age of 21 before the coming into force of this Protocol and who is of dual nationality shall renounce the nationality of that parent who is not a national by virtue of subparagraph (a) above. 10 Thus, the provisions relating to the definition and acquisition of ECOWAS citizenship apply only to persons who are citizens of Member States. The various means by which ECOWAS citizenship can be acquired as spelt out in the Article will be considered shortly. It is pertinent to note at this juncture that before ECOWAS came into being there was no common citizenship for the whole region. The West African countries had their separate citizenship (rules) by means of national legislation. The situation has not changed, because as Gasiokwu has rightly stated, ECOWAS as an organization, does not in a strict sense enjoy the right to confer citizenship on an individual as would a State. ECOWAS citizenship is therefore inextricably intertwined with the citizenship of a Member State and the Protocol has laid out the different means by which ECOWAS citizenship can be acquired. The means of acquisition of ECOWAS citizenship are clearly spelt out in Article 1 of the Protocol Relating to the Definition of Community Citizen. The Protocol on Definition of ECOWAS citizenship outlines the various categories of persons who are regarded as ECOWAS citizens and inherently encapsulates the modes of acquisition. In other words, there is no marked difference, (in substance), between the definition and acquisition of ECOWAS citizenship. The definition simply states the juridical principle, while acquisition lays out the contextual framework i.e., looking at citizenship within the context of the parameters enshrined in Article 1a and 1b. Citizenship of a Member State is the primary basis for all the ECOWAS citizenship rights. By Birth: Article 1(b) contains a proviso requiring that a person who is a national by birth of a Member State, either of whose parents is a national by descent of a such a Member State, should on attaining the age of 21, decide to take up the nationality of the Member State. The rationale for this proviso is not far fetched. This researcher surmises that it is aimed at excluding citizens of Member States who are merely de jure citizens whose actual links with their States is so tenuous as to make it incongruous for them to enjoy the same rights as those who are de facto citizens and are actually, not only biologically, but also geographically linked with the Member State. There are some who were born abroad by parents who are citizens of ECOWAS Member States, which makes them de jure citizens but in actual fact, have no other connection whatsoever. Some often may only visit their States once in a long while or not at all in their lifetime. In addition, there are nationals of other non ECOWAS States who acquire citizenship of ECOWAS Member States while retaining their allegiance and connection to their countries of origin. Most of them are considered by critics as mere leeches who are only out to obtain economic advantage by their citizenship in Member States. They are only interested in what they can get and do not make any input whatsoever to the economic welfare of the region. The 9. Ibid 10. Ibid 102 O k o m a n d D a d a AJSIH Vol.2 No.3. (May 2012)

4 drafters of the Protocol in their wisdom considered it apt to exclude such persons from enjoying the rights appurtenant to ECOWAS citizenship. The policy, it appears is to retain as far as possible, persons whose parents or at least one parent is from a community indigenous to a Member State. Be that as it may, this researcher is of the view that there is no need for such a person, to decide to take up the nationality of the Member State. So long as he does not renounce or change his nationality, he should be considered a national without having to decide to do so. The only possible eventuality is that he could renounce or change his nationality, whereupon, he automatically loses his citizenship of the Member State. It is submitted that the Protocol would be better if it was based on the citizenship laws of the various Member States. In fact, no provision is made with respect to the process of making such a decision. The authors aver that no mischief is caused by the holding of dual nationality so long as one of the individual s parents is a national by virtue of descent. Furthermore, it does not legally matter whether the individual attained the age of 21 before or after the coming into force of the Protocol. Be that as it may, even if the individual were to renounce the nationality, how is he to do it? The above provisos (with respect to deciding to take up ECOWAS citizenship), are considered by the authors as superfluous. It should be enough that a citizen of the Community is any person who is a national by birth of any of the Member States 11, This, in the view of the authors, would be in tandem with the citizenship laws of the various Member States and would not unduly be labor the issue of who a Community citizen is. By Adoption: Another mode of acquiring ECOWAS citizenship is by adoption. This is provided for in Article 1(c) of the Protocol Relating to the Definition of Community Citizen. The principles are as follows; i.any adopted child who is not a citizen of the Community or whose nationality is unknown but who on attaining the age of 21 expressly takes up the nationality of his adoptive parent who is a Community Citizen. ii.any adopted person who has already attained maturity before the coming into force of this Protocol and who is of dual nationality shall expressly renounce the nationality of any State outside the Community. iii.any child adopted by a citizen of the Community, provided that the child has not attained his maturity to decide on the nationality of his choice. Article 1(c)(i) is open to some objections. Legally, adoption creates the relationship of parent and child between persons who are not biologically connected. In the words of Morris, adoption is an act whereby the relationship of parent and child is created between persons who are not necessarily so related by nature 12. Usually, the relationship is for life and for all intents and purposes, an adopted person is a legitimate child for purposes of succession and cognate matters. From the moment a person is adopted, whatever defects he bore by virtue of his antecedents become automatically cured. Where this happens, the nationality of his adoptive parents becomes his as well. This, it is submitted, ought to be enough to make him an ECOWAS citizen in the spirit of the Protocol. 13 The requirement that he expressly take up the nationality of his adoptive parent who is a Community citizen appears superfluous. The researchers do not see 11 This would confer automatic Community citizenship on a citizen of a Member State. 12 Morris, J.H.C., The Conflict of Laws, London: Stevens and Sons, 1984,p Article O k o m a n d D a d a AJSIH Vol.2 No.3. (May 2012)

5 the need for him to do this. As an adopted person, it is within his rights to decide to change his nationality when he attains majority. This he can only do by an express act which will be apparent to the law. When this happens, of course, he ceases to be a national of the ECOWAS Member State. If the law of the Member State in question allows dual nationality, that is when he should renounce his non-ecowas nationality 14, but where he has acquired such a nationality, that is ipso facto, a renunciation of his ECOWAS Member State nationality. In sum, it provides no fillip to the Article whatever, to require the adopted person to expressly take up the nationality of his adopted parent. A pertinent question would be, suppose he does not, how can it be proved? It does appear that it is a given that once a person is adopted, he/she becomes a citizen of the Member State of which his/her parents are citizens. The status-quo should remain so with him until there are other contra indications by his conduct, (such as taking up a non-ecowas nationality, et al.) which is the only express act that the law should be concerned with. So long as he does not do this, he should be entitled to be treated as a citizen. Persons who had attained maturity before the coming into force of the Protocol and who have dual nationality are required to renounce their non- Community nationality. The aim of the Article is obviously to prevent a person from enjoying the dual advantage of ECOWAS citizenship and that of a second nationality. It is clear that the Protocol frowns at dual nationality but since no tangible mischief is caused by it, the authors submit that the formulators of the Protocol need not have concerned themselves with curbing it. The flip side of the matter is that the tenor of Article 1(c), especially as it relates to choice, clearly shows that the drafters of the Protocol see an adopted person as a non-consensual national or citizen, thus requiring evidence of consent to establish his status as a Community Citizen. Even this argument cannot be sustained because the law has taken care of that by ensuring that once adoption takes place, matters speculative or extraneous as to the status/relationship created are rendered inconsequential. The argument can be raised that a Community Citizen could adopt a person who is by birth, a citizen of a non-community State (whether white, black or other color) and the adoptive parents could be resident abroad and not properly geographically connected to the region. Even when this occurs, the opinion of the authors remains that once a person has valid citizenship of a Member State, further conditions should not be imposed. Of course, if such a person perpetrates any act inconsistent with his/her status of citizenship, he/she should lose the citizenship. By Naturalization Under Article 1(d), ECOWAS citizenship can be acquired by naturalization. According to Eteng, fundamentally, the process of acquiring citizenship under this method requires an immigrant to be resident in the country. 15 Naturalization is the conferment of citizenship by a competent State organ, on an individual upon request of such individual. It is both a political and legal act and has certain characteristics: First, it is an act of a sovereign. The right to regulate the procedure for granting citizenship arises from the sovereign. Second, it is the conferment of citizenship on a person who was not a citizen of the conferring State before the moment of naturalization. Third, the rules and procedure for naturalization are established by the municipal laws of the State. Fourth, naturalization is conferred upon request and consent of the interested individual. As a rule, consent on naturalization must be explicit. The general pre-requisites for the conferment of citizenship by naturalization include; residence in that State for a continuous number of years; full age and capacity; good character, 14. As required under Art 1(c)(ii) (if he had attained majority before the coming into force of the Protocol). 15. Ozumba., G. O., et al (ed.) Citizenship Education, Calabar: Vitalis Book Company, 1994, p O k o m a n d D a d a AJSIH Vol.2 No.3. (May 2012)

6 and; intention to be domiciled in that State. Under international law, voluntariness is an essential requirement for naturalization. According to Umozurike 16, naturalization may be through marriage or by voluntary application and Gasiowku opines that the ECOWAS Protocol harmonizes these conditions by conferring naturalization on naturalized persons of Member States who before hand made formal application and subsequently renounced the nationality of any State outside the Community. 17 The Protocol requires that such renunciation must be explicitly supported by an act of renunciation duly authenticated by the authorities of the country whose nationality or nationalities he formerly enjoyed. He is also expected to have resided permanently in a Member State for a continuous period of 15 years preceding his application for Community citizenship. Such residence shall mean a permanent establishment of abode on the territory of a Member State, without any subsequent transfer to any State outside the Community. However, the ECOWAS Council of Ministers or any organ of the Community may at the request of a Member State reduce the fifteen year period on grounds of exceptional services that such a person had rendered to the Community or because of any other special consideration. These conditions are appropriate because naturalized citizens by virtue of their status, (being that their antecedents lie outside the Member State), should have more stringent conditions attached to them. Under Article 1(e), a naturalized person of any Member State may not be granted the status of Community Citizenship if by granting such status the fundamental interests of one or more Member States shall thereby be jeopardized. This provision is welcome as it envisages a situation where a naturalized citizen of one Member State may have made statements or been involved in economic, political or social activities which may be inimical to the interests of other States. Gasiokwu 18 opines thus: This provision, in the opinion of this writer, is desirable given the fact that most foreign nationals really decide to naturalize in countries of sojourn mainly for economic reasons without any serious interest in the general development of the country. Experience has shown that if for example the Lebanese in these countries have become citizens of such countries by naturalization, they do that for economic reasons. They are not really interested in affairs of the people. Their conduct attests to this assertion. Most of them in Nigeria have lived in their respective residences for very long period without any effort to renovate their residential houses just because the houses do not belong to them. Not only that, in most of their businesses, they hardly employ non- Lebanese. It is our submission that, this is not the spirit for which ECOWAS was formed. If therefore the naturalization of such persons in one ECOWAS country may jeopardize the interest of other member States, such naturalized person should not be granted the ECOWAS citizenship. Article 1(e)(i),(ii) and (f) make further provisions for children adopted by naturalized parents. A naturalized child by adoption is; (i): Any child who is not a Community citizen at birth or whose nationality is unknown, adopted by a naturalized citizen of the host state and who at the age of 21 years expressly take 16. Umozurike U.O., Introduction to International Law, Ibadan: Spectrum Books Limited, 2007 ed., p M.O.U. Gasiokwu, op. cit. p Ibid at p O k o m a n d D a d a AJSIH Vol.2 No.3. (May 2012)

7 up the nationality of his adopted parent. However, such adopted child shall enjoy this status only after fifteen (15) years of permanent and continuous residence in the same Member State. (ii) An adopted person by a naturalized citizen of the Community and having already attained the age of 21 years before the entry into force of the present Protocol and who is of dual nationality, who expressly renounces the nationality of any other State outside the Community. However, he shall only enjoy the status of the Community citizenship only after fifteen (15) years of permanent and continuous residence in the same Member State. Any child born of naturalized parents of a Member State who has acquired the citizenship of the Community in accordance with the provisions of Paragraph (d) above, is also entitled. However, in order to become eligible for Community citizenship, the child before attaining the age of 21, must expressly renounce the nationality of any non- Member State of the Community which he may possess. The requirement of express renunciation which we have earlier analyzed and critiqued arises here again but with respect to naturalized citizens, it is a welcome one. CLASSIFICATION OF ECOWAS CITIZENS ECOWAS citizens can be categorized into two groups: legally resident ECOWAS Citizens and illegally ECOWAS resident citizens. A more detailed treatment of this will be done in the next chapter but suffice if to say here that ECOWAS citizens do not become citizens of their host States but are regarded as Treaty aliens. Thus, their legal status within the territory of a Member State like Nigeria, is regulated by the Community laws and the appropriate municipal laws of Nigeria. Thus, there is no gainsaying the fact that legal ECOWAS citizens in Nigeria are therefore, the law abiding citizens of Member States who are within the territory of the Federation in compliance with the laws of the Community and the provisions of the relevant Nigerian laws regulating entry, residence and establishment. Illegal ECOWAS citizens are those who enter Member States in violation of the receiving States immigration laws. Section 33(1) of the U.K. Immigration Act 1971 provides that an illegal entrant is a person unlawfully entering or seeking to enter a country in breach of a deportation order of the immigration laws and includes a person who has so entered. The Nigerian Immigration Act, does not define the term illegal immigrant but it certainly refers to a migrant or immigrant whose entry is not lawful. Thus, ECOWAS citizenship does not confer a right to violate the laws of any Member State. It must be pointed out however, that illegal entrance into a Member State does not divest the migrant of his ECOWAS citizenship but deprives him of the right to free movement into and within the Member State. Rights of ECOWAS Citizens There is no gainsaying that the status of ECOWAS citizenship confers concrete and acceptable rights under the Treaty and Protocol but such rights are matched with clear obligations to abide by the laws and regulations of Member States with respect to entrance and residence. The rights of free movement of persons, residence and establishment, and free movement of goods and capital are enjoyable by all legal ECOWAS citizens as they move across the region. The aim of the Protocol is not to unleash an unwieldy and unruly army of migrants and immigrants on Member States but to make it possible for ECOWAS citizens to traverse the region 106 O k o m a n d D a d a AJSIH Vol.2 No.3. (May 2012)

8 in ways that will enhance the security, economy and social fabric of the Member States. This is in line with the socio-economic orientation of Member States of the West African sub-region whose goal in crafting the ECOWAS Treaty/Protocols was to achieve economic integration which implies a geographical area in which unhampered by restrictions, the market forces of supply and demand are brought face to face. This means in practical terms the elimination of economic frontiers between the Member States of the Community and the creation of a customs union where protected by a common external tariff system, the market operates on the basis of free movement of goods, persons, services and capital. 19 While resident in a host Member States, Community citizens are subject to the laws and regulations of such a State. The acquisition of ECOWAS citizenship entitles the holder to the rights of freedom of free movement, residence and establishment, within the confines of national laws. He/she is entitled to the rights enjoyed by the nationals of the host Member State. They enjoy no special status. They are entitled to the Constitutional rights enjoyed by nationals of the host Member State. 20 Logically therefore, they bear the same liability in criminal matters as nationals. Community citizens also have equal access to competent judicial, administrative or legislative authority, according to the laws of the Member State. Privileges always have corresponding obligations. Access to courts and tribunals presupposes subjection to the jurisdiction where crime is involved. Thus, they are bound by the entire gamut of criminal laws applicable in the host State, in addition to those enacted in the Protocol. Trans Border Crimes and Citizenship Trans-border crimes are highly prevalent in the Community. These are crimes that are initiated in one Member State and executed in another. Examples of such crimes include smuggling, trafficking and illegal migration. According to John Agyei and Ezekiel Clottey, there are key issues regarding the operationalization of the Protocol that Member States agreed to use as a starting point. They include absence of adequate mechanisms to control infiltration of criminals. In their words: It has been realized that ECOWAS has not instituted adequate mechanisms for controlling the entry of illegal immigrants into Member States. This is due to the fact that many people in the sub-region do not possess any valid traveling documents including birth certificates. This has been exploited by persons who carry out nefarious activities such as internet fraud, money laundering, human trafficking etc. 21 As soon as the Protocol came into force, migration was unleashed, and patterns of gravitation towards areas with rosy economic prospects followed. Many migrants were more concerned with enjoying improved socio-economic conditions than in complying with the regulations under the Protocols. Many did not even know of, nor were they concerned about the details of the Protocol. They were more interested in enjoying the privileges encapsulated in the Protocol. To them, it was a case of let my people go, a mass exodus characterized by promises of economic nirvana. Abuses were just a matter of course. As stated by Agyei and Clottey, some of the abuses include smuggling of goods and illicit trade in narcotics. These crimes and acts of 19. Lasok, D and Bridge, J. W. Introduction to the Law and Institutions of the European Communities, London; Butterworths 1976, p Gasiokwu, op.cit, p J. Agyei and E. Clottey, Operationalizing the ECOWAS Protocol on Free Movement of People Among the Member State: Issues of Convergence and Prospects for Sub-Regional Integration, 2008, (Last visit, ). 107 O k o m a n d D a d a AJSIH Vol.2 No.3. (May 2012)

9 economic sabotage have led to resentment among officials and the general public in the destination countries. 22 In response to this groundswell in trans-border crimes, the Ghanaian government established the Border Patrol Unit within the Ghana Immigration Service to police the borders. It did not record much success and had to be disbanded. These crimes are going on unabated, with the active collusion of customs and immigration officials. It is common knowledge that corruption at the borders is the lever that propels the fulcrum of the smuggling racket. Anything, (including human beings), can be transported across the borders on payment of the right amount of money. The porosity of the borders is of course another factor which makes trans- border crimes virtually unstoppable. So long as the uneven economic development of the region remains and corruption continues to fester at the borders, trans-border crimes will continue to undermine the ECOWAS goal of the economic development of the region. In fact, it has been observed by Agyei and Clottey that ECOWAS failed to ensure the harmonization of national laws pertaining to migration before the Protocol became effective. As the learned authors put it, in enacting the Protocol, much consideration was not given to the diversities in the social political and economic background of the Member States. 23 It is pertinent at this juncture to state that the response of Member States to the trans border crime of illegal migration has been expulsion. The most popular expulsions are those of Ghana, (by the Aliens Deportation Order of 1969) and Nigeria (between 1983 and 1985), but seven other States have deported illegal migrants. In October 2000, ECOWAS Member States held a conference in Dakar Senegal, on the Participation of Migrants in the Development of their Country of Origin. Measures were agreed upon for the implementation of the conference s goals, one of which was the, resettlement of victims of the traffic in their countries of origin and their productive re-integration in the local fields of economic activity through vocational training sessions and search for job opportunities 24. Regrettably, no measures were put in place to target the trafficking scourge. This reflects the general attitude towards crime in the region, as an inalienable component of the body politic. It is a scourge that cannot be overlooked if the efforts to regulate legal international migration are to yield positive and enduring results. Trans-border crimes can be ameliorated but there is no gainsaying the fact that it is a leviathan of monstrous proportions. It is regrettable that to date, there has been no protocol on trans-border crimes, despite its grave implications for the security of the region. The 1999 ECOWAS Protocol on the Mechanism for Conflict Prevention, Management and Resolution, Peacekeeping and Security and the 2001 Supplementary Protocol on Democracy and Good Governance, did not deal with the issue. A Protocol on trans-border crimes, especially smuggling, is long overdue. The Convention Relating to Inter-State Road Transit of Goods contains provisions relating to trans-border security. 25 Under The Trade Liberalization Scheme, certain specified goods are allowed to be transported across the borders duty free. Under article 29, when an infringement bordering on crime is established in the course of and at the time of an inter-state road transit operation in a Member State, the duties, taxes and fines that may be incurred shall be collected by the Member State in conformity with the laws and regulations in force in each Member State. Article 31 provides that as a matter of necessity, the Customs Administrations of 22. Ibid 23. Ibid 24. Adepoju A., Fostering Free Movement of Persons in West Africa: Achievements Constraints, and Prospects for Integration Migration. International Migration Journal vol. 40(2), 2002, p Convention A/P4/5/82, Compendium of Protocols et al, op. cit. p O k o m a n d D a d a AJSIH Vol.2 No.3. (May 2012)

10 the Member States shall communicate to one another, the reports of incidents, documents, certified accounts and information, as well as the infringements discovered. The Convention for Mutual Administrative Assistance in Customs Matters 26 took cognizance of the fact that the implementation of the Community Rules on Products and the Trade Liberalization Program in respect of intra-community trade may create some illegal trade flows across the borders. As a result, it provided in Article 2 that Member States agree that their competent authorities shall render each other assistance with a view to the prevention, detection and punishment of customs infringements in accordance with the provisions of the Convention. It is a grave omission that no mention is made as to the mode of punishing such infringements. Suffice it to say however, that there is nothing in the Convention to prevent Member States from resorting to their criminal justice system, to prosecute and punish such offenders. This underscores the exigency of a protocol exclusively on trans-border crimes. ECOWAS should have a supranational structure in place to deal with the matter so as to take it out of the realm of conjecture. In Article 7 of the Decision of the Authority of Heads of State and Government of the Economic Community of West African States, certain offences are listed, the commission of which makes the Community citizen liable to legal proceedings which may be instituted according to the provisions of the Penal Code of each ECOWAS Member State. There are: The issuance of an ECOWAS Travel Certificate under false pretences, i.e. on the basis of presentation of false documents and the use of such an ECOWAS Travel Certificate; the transfer, even temporarily, of an ECOWAS Travel Certificate or the use of a borrowed or stolen ECOWAS Travel Certificate; the forging, counterfeiting or alteration of an ECOWAS Travel Certificate thus counterfeited or altered. It is clear that such offenders will be tried in Nigeria under the Criminal Code provisions relating to stealing, impersonation, counterfeiting and forgery. It is submitted that offending Community citizens can be tried in the courts of the Member State where the breach occurred. Though this is not provided for in any protocol, it does not offend any of the protocols in any way, or although the setting up of an ECOWAS Criminal Court will more appropriately bring these matters within its jurisdiction. There are no special or specific provisions relating to the civil liability of Community citizens. Their civil liability is a logical corollary of their civil/human rights and obligations which are at par with those of citizens. However, there are certain civil liabilities that attach to them as Community Citizens ipso facto, as is the case with criminal liability, such as liability under contract, tort, marriage et al. With respect to the criminal liability of Community enterprises, the Protocol has no specific provisions in that regard. The implication therefore, is that their criminal liability is governed by the same rules that apply to natural persons, (citizens). The peculiarity with respect to Enterprises is that in Nigeria, the corporate veil would be lifted in accordance with company law principles, in order to identify those behind the fraudulent or improper conduct. Judicial Protection of Citizenship Rights To what extent can a Community citizen seek redress in the judicial system of the host State in the event of the infringement of his rights to free movement, residence and establishment. To date, there has been no decision by the ECOWAS Court on this issue. The main issue has to do with the jurisdiction of the Court (otherwise called the Community Court of Justice). It was established pursuant to the provisions of Articles 6 and 15 of the Revised Treaty of ECOWAS. 26. Convention A/P5/5/82, Compendium of Protocols et al, op. cit., p O k o m a n d D a d a AJSIH Vol.2 No.3. (May 2012)

11 The Protocol 27 relating to the Court clearly states that the Court is the principal legal organ of ECOWAS with the main function of resolving disputes relating to the interpretation and application of the provisions of the Revised Treaty and annexed Protocols and Conventions. The Court held in Olajide Afolabi v. Federal Republic of Nigeria, 28 that only Member States can institute proceedings on behalf of their nationals. Individuals had no direct access to the Court. In that case, the plaintiff was a Nigerian whose situation was pathetic because the Nigerian Government could not have sued itself on behalf of its citizen. However, a Supplementary Protocol has been drawn up, amending the Protocol Relating to the Community Court of Justice, with respect to jurisdiction. Under Article 10 (d) of the Supplementary Protocol, individuals now have access to the court. Though as earlier indicated, there is no known case of actions for infringement of the rights of freedom of movement of persons, goods and capital, residence and establishment, the court exercised jurisdiction in a human rights violation case involving slavery and denial of fundamental human rights. In that case, Hadijatumani Koraou v Republic of Niger, 29 the applicant was bought and enslaved by one Suleiman Narua on account of the existence of laws permissible of such acts. The Court ordered the applicant s release and ordered that the Niger Government pay her the sum of ten million CFA francs as compensation. The situation is now similar to that of the European Union (E.U.), whereby individual EU citizens have access to the European Court of Justice E.CJ. A Community citizen can institute an action in the host country s courts for the enforcement of his rights of residence and establishment since these rights constitute part of the rights that the Community citizen is entitled to enjoy and they are guaranteed by the Protocol. The Courts of Member States are expected to take judicial notice of the rights granted by the ECOWAS Protocol. Be that as it may, it would be more expeditious for such matters to be handled by the ECOWAS Court because of its exclusive jurisdiction. The rights of residence and establishment are infringed when a Community citizen is denied a job or discriminated against in terms of wages/salaries, with respect to accommodation and other matters. In Nigeria, where any of the rights guaranteed under chapter four of the Constitution are infringed, the Community citizen has the right to seek and obtain redress in the Nigerian courts, as do Nigerians. It must be stated that the issue of the rights of entry residence and establishment of Community citizens is so much intertwined with politics, especially because of the power the Protocol gives to the States to make discriminatory laws while in another breath enjoining them not to discriminate. It is hoped that the political issues will be unraveled sooner than later in order to clarify the legal climate that Community citizens operate under. This is not to say however, that discrimination in itself is manifestly evil. This is because even in the internal affairs of States, there exist laws which discriminate between classes of persons for reasons considered legally or socially expedient, such as laws in favor of women in the labor arena and others. The Status and Treatment of Corporate Entities The corporate entities referred to here are companies, corporations, organizations (especially Non-Governmental Organizations (NGOs) and institutions. Article 1 of the Supplementary Protocol on the Implementation of the Third Phase of the Protocol defines a company as an entity constituted under civil or commercial law or any other legal entity constituted under public or private law with the exception of non-profit making companies. Legal migrant workers and immigrants are by this Supplementary Protocol, entitled to create and manage enterprises and companies in their host States, where they have become 27. Protocol (A/P1/7/ ECW/CCJ/App/01/ Suit No. ECW/CCJ/APP/08/ O k o m a n d D a d a AJSIH Vol.2 No.3. (May 2012)

12 residents in their capacity as investors who since their arrival in that country, have been carrying out an economic activity as an employer. 30 Such entities are to be subject to the same conditions stipulated by the laws and regulations of the country of establishment for its own nationals. 31 Thus, the purpose of this provision is to encourage legal migrants and immigrants to engage in business in order for the host States to enjoy the attendant benefits of employment opportunities, the growth of the economy and the enhancement of the socio-economic welfare of the host community. In order for this objective to be maximally achieved, it is imperative for the migrant business people to receive non-discriminatory treatment in the host States. Such companies must of course be formed and operated in accordance with the laws and regulations of the host country. The interests and welfare of such companies are further protected by Article 3 of the Supplementary Protocol, which provides that for the purpose of the implementation of this Protocol, companies which are formed in accordance with the laws and regulations of a Member State with their headquarters, central seat of administration or principal establishment within the Community shall be considered in the same category as individual nationals of Member States. In other words, the regulations that apply to individual ECOWAS citizens also apply to corporate entities. The corporate entities thus enjoy the rights of freedom of movement, residence and establishment and freedom of movement of goods and capital. These rights are to be enjoyed without discrimination. Articles 2 and 3 forbid discrimination in the areas of laws and regulations, while Article 4(1) forbids discrimination in the areas of establishment and services. The Protocol provides that in these matters, each Member State shall undertake to accord non-discriminatory treatment to nationals and companies of other Member States. But Article 4(2) whittles down the obligation to accord non-discriminatory treatment by giving Member States the leeway to resile from that obligation and latching on to it the policy of reciprocity. Article 4(2) states that if however for a specific activity, where a Member State is unable to accord such treatment, such a Member State only need indicate so in writing to the Executive Secretariat. Thereafter, other Member States shall not be bound to accord non-discriminatory treatment to nationals and companies of the State concerned. This article is effective in protecting the sovereignty of the individual Member States (being allowed to make discriminatory laws and regulations), while at the same time attaching a caveat that would discourage such States from taking such actions. Gasiokwu 32 has opined that the provision is defeatist because it bears a loophole which uncooperative States may exploit to the disadvantage of the ECOWAS citizens. It would have been so if there had been no caveat. This researcher is of the view, that it is an effective check on States which might be inclined towards putting up an uncooperative attitude. The above mentioned Articles furnish a further advantage to the companies under discussion. Apart from the right to circulate and do business freely within the Community, the provisions have the effect of reducing competition from enterprises of non-community entrepreneurs especially the transnational companies. 33 In the exercise of their power to make discriminatory laws, Member States have enacted legislation restricting Community citizens from engaging in certain types of businesses. Such restrictions represent a clash between the ECOWAS supranational regime and sovereignty. Membership of a supranational body like ECOWAS 30. Gasiokwu, op, cit, p Ibid 32. Op. cit., p Ibid 111 O k o m a n d D a d a AJSIH Vol.2 No.3. (May 2012)

13 demands an inevitable derogation from sovereignty. However, as a German author has stated, in the wake of decolonization, the newly independent States hold on to it fiercely. 34 This is clearly so because, the fight for independence is invariably a fight for sovereignty. Thus, States understandably are reluctant to part with it. In fact, it stands to reason that if the ECOWAS Treaty/Protocols did not leave sufficient room for States to exercise discretion and preserve national interests with respect to some issues such as the freedom of enterprises to operate without discrimination in host States, the uneven development of the region makes it difficult to insist that such freedom be unfettered at a supranational level. Some of the more viable states like Nigeria and Ghana would have had to bear the brunt of the economic weakness of the others because they would have an avalanche of non-nationals doing business such that their own economies would be imperiled. In light of this, it would be harsh to conclude that the leeway given to States to make discriminatory laws, fatally injures the goals of economic integration of the Protocol. In due course, when the region experiences more even development, the clause might not be necessary. For now, it is important that certain checks be put in place in order to ensure that in pursuing the goals of regional integration, some Member States are not consequently asphyxiated. The Protocol Relating to Community Enterprises has made provision for Community Enterprises to enhance the integration and development of the economies of Member States of the Community 35 and considering that in furtherance of the objectives of the Treaty, Community Enterprises can be vital agents for the promotion of more rapid integration of the economies of the Member States through the provision of additional avenues for joint endeavors under a Community framework. 36 A Community Enterprise is one in which the equity capital is owned by two or more Member States and citizens or institutions of the Community or nationals or legal persons of a Member State or nationals or legal persons of third countries. 37 An Enterprise which seeks to acquire the status of a Community Enterprise, is required to have been incorporated as a public limited liability company or established as an inter-governmental enterprise in a Member State. Applications for admission shall first be submitted to the Member State in which the enterprise is located with a copy to the Executive Secretariat for information. The Member State is obliged to make its decision known within three months of the receipt of the application. An enterprise sponsored by a Member State shall submit through such Member State, thirty copies in French and twenty in English of its application to the Executive Secretariat which shall acknowledge receipt both to the Member State and the Enterprise concerned. 38 All applications for admission shall be accompanied by detailed description of the nature of the Enterprise and a copy of its Memorandum and Articles of Association or equivalent documents. 39 A Member State or legal or natural person may raise objection to the admission of an enterprise within three months from the date the application is published in the official journal of the Community and forward to the Executive Secretariat the reasons and justification for the objection, in writing. Upon the receipt of an objection, the Executive Secretariat shall investigate the matter and submit its findings to the Selection Panel for its recommendations and transmit them to the Council for its decision. The approval of an application for admission is followed by 34. Knieper, R., The Concept of National Sovereignty and Development Law, Nigerian Institute of Advanced Legal Studies, Occasional Paper No. 16, 1992, p In the Preamble 36. Ibid 37. Article 2(1) 38. Article 5(3) 39. Article 6(1) 112 O k o m a n d D a d a AJSIH Vol.2 No.3. (May 2012)