Introduction
One of the problems facing individuals (natural and legal persons) who wish to enjoy the rights created by the ECOWAS Treaty and other legal texts is the non-availability of information about the means through which they can seek redress if their Community rights are violated by a Member State. Being a sovereign State, a Member State may decide to interpret a Community text in a way that suits it, which may not be compatible with the Community law and may infringe individuals’ Community rights. It may also decide, for one economic reason or another, and despite its obligation to refrain from any action that may hinder the attainment of the objectives of the Community, to encourage anti-competition or unfair trade practices on its territory and across the border to the detriment of another Member State and its nationals. So, when a dispute arises between a Member State and an individual in connection with a right guaranteed by the ECOWAS legal instruments, or when an individual’s economic activities are seriously hampered by the excessive regulations of a Member State incompatible with the Community law, violating the individual’s Community rights, where can the person seek redress?

The situation is all the more worrying as there is no mechanism foreseen under the Treaty to deal with the enforcement, at national level, of the rights created by the Community legal texts. To be sure, there is the regional Court of Justice which has competence to adjudicate on disputes relating to the interpretation and application of the texts. But the Protocol on the Court does not empower individuals to sue a Member State before it for non-compliance with its Community obligations if that non-compliance affects the individuals’ rights. Thus, businesses and citizens are often left to their own devices. Violations of Community rights are rife; trade agreements such as the ECOWAS Trade Liberalization Scheme (ETLS) are often subverted; exporters across the region experience enormous difficulties taking their goods from one Member State to another[1] owing to the existence of all sorts of barriers to free trade; in some Member States, non-native Community nationals are subjected to conditions laid down for “foreigners” in terms of access to commercial activities and investment. All these violations of ECOWAS law slow down the process of regional economic integration considerably and often lead to some questioning the rationale for the formation of the economic Community. They are rarely challenged at national or Community level owing primarily to the non-availability of information concerning the mechanism for the enforcement of the Community law at both levels.

The purpose of this paper therefore is to provide basic information on the means through which violations of the rights and the obligations arising from Community legal texts can be addressed at national level, in accordance with the international best practices. We shall discuss in another paper the mechanism for the enforcement of the Community law at Community level - as opposed to national level.


Enforcement of Community law in national courts
Under the law of the European Economic Community/European Union which is the leading example of a regional economic bloc, Community rights can be invoked before national courts.  In other words, individuals whose Community rights are violated by a Member State can take their complaints to national courts, which are bound to protect them. This principle was laid down by the European Economic Community Court of Justice (ECJ) in case Van Gend en Loss v Nederlandse Administratie der Belastingen. In that case, a dispute between the Dutch company and the Dutch Customs and Excise led to the national court before which the matter was pending requesting a preliminary ruling from the ECJ on whether a particular provision of the Treaty of Rome conferred rights on individuals which could be enforced in national courts. The ECJ used the opportunity to lay down the doctrine, which has become one of the cornerstones of Community law.

The principle has been adopted by several other regional Economic Communities. For instance,  under Article 31 of the Treaty Creating the Court of Justice of the Andean Community, natural or artificial persons have the right to appeal to competent national courts  should a Member country fail to comply with the Treaty obligation in the event that the rights of those persons are affected by that non-compliance. Here in West Africa, the ECOWAS Court of Justice has held that “… national courts are also Community courts as they have competence to apply the Community law which forms part of the internal order” (Judgement No. ECW/CCJ/JUD/11/12), debunking the widely-held belief that there is no mechanism where traders in the region whose Community rights are violated can seek redress.

Generally speaking, there are several reasons why domestic courts have competence to apply Community law at national level. Let’s look at two of them. First, they are constitutionally empowered to adjudicate on disputes over rights and obligations within their domestic legal order. For instance, Section 6(1) of the 1999 Nigerian Constitution states that the judicial powers of the Federation shall be vested in the judicial courts established for the Federation. Section 6(6) provides, inter alia, that those judicial powers “shall extend to all matters between persons, or between government or authority and any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person”. Likewise, Article 159 (1) of the 2010 Kenyan Constitution provides that the “Judicial authority is derived from the people and vests in, and shall be exercised by, the courts and tribunals established by or under this Constitution.”

The sole competence of national judicial authorities in their domestic legal order is one of the constituents of national sovereignty. Naturally, nothing prevents a state from ceding, under a treaty, its rights to resolve disputes within its domestic legal order to a foreign tribunal. Thus international free trade agreements and bilateral investment treaties, for example, most often contain a dispute resolution mechanism known as investor-state dispute settlement mechanism, under which disputes arising from these instruments between the state and a foreign investor are resolved by a tribunal outside the domestic legal system. This regime, however, forms the subject of a lot of criticism. The second reason why domestic courts have competence to apply Community Law is that, as was declared by the ECOWAS Court of Justice, Community law is part and parcel of the domestic legal order; it therefore falls within the jurisdiction of domestic courts, holders of judicial powers within the domestic legal order.[2]

One of the advantages of the involvement of national courts in the enforcement of the Community law is that it boosts the confidence of economic operators as it gives them the assurance that, in the event of a breach, by a Member State, of their Community rights, they can seek redress locally, that is, in the domestic courts of the Member State where the alleged breach of their Community rights has occurred, and in accordance with the existing procedural rules which their lawyers are familiar with. If the case raises a particular question of the Community law (such as a question concerning the interpretation of a provision of the Treaty or of any other binding Community legal instrument), then the national court dealing with it may, on its own initiative or at the request of any of the parties to the action, refer that particular question to the Community Court for interpretation.[3] This is known as the preliminary ruling procedure. It is important to note that the mechanism is not an appeal procedure as what is requested from the Court is the interpretation of that particular question and not a final decision on the main action. The preliminary ruling delivered by the Community Court on any question of Community law is binding on all the Member States. In this way, the Court is able to ensure that the Community law is applied properly and uniformly across the Community, harmonizing national practices in the area concerned.


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