It has been confirmed that at the 55th Ordinary Session
of the Economic Community of West African States (ECOWAS) which held in
Monrovia, Liberia in December 2016, the Authority of Heads of States and
Government of the member states of ECOWAS erroneously gave approval in
principle to the request of the Kingdom of Morocco to join the sub-regional
grouping. However, in view of the legal implications of the request the
Authority has directed the ECOWAS Commission to examine the implications of
Morocco’s membership of the ECOWAS within the ambit of the Revised Treaty of
ECOWAS and to submit the results at the next session of the ECOWAS scheduled to
hold in Lome, Togo in December, 2017
Having critically reviewed the Revised Treaty and
other legal texts of the ECOWAS as well as the relevant legal instruments of
the African Union we are of the firm view that Morocco is not legally qualified
to join the sub-regional economic union. However, before examining the legality
of the request it is germane to expose the false claim that Morocco’s admission
would improve the economy of member states of ECOWAS. Despite the
so-called Morocco’s strong ties with ECOWAS member state, trade between them
remains low as it is less than USD 1 billion a year. This is insignificant as
West Africa has a GDP of $345 billion. Even then, the volume of trade is
expected to reduce as some of the trade agreements between Morocco and ECOWAS
member states are illegal to the extent that they relate to the illegal
exploitation of the mineral resources in Western Sahara.
It is worthy to note that both the European
Court of Human and a High Court in South Africa have ruled that Morocco lacks the
legal capacity to exploit the mineral resources in the occupied territory of
Western Sahara. On the basis of such judicial decisions, we have it on good
authority that the Polisario Front has concluded arrangements to challenge the
agreements signed between Morocco and other countries including the member
states of the ECOWAS for the exploitation of the mineral resources located in
the occupied territory of Western Sahara.
Before the submission of Morocco’s request
for membership of ECOWAS Nigeria and some member states of the economic
grouping had raised serious objections to the “EU-ECOWAS Partnership Agreement”
designed to allow the industrialised members of the European Union to flood
West Africa with manufacture goods and thereby destroy the infantile industries
in the member states of ECOWAS. If Morocco is admitted to ECOWAS the European
Union would have achieved its objective as it has signed an Association
Agreement with Morocco which is similar to the EU-ECOWAS Partnership Agreement
in every material particular. In other words, if the request is granted,
Morocco will take advantage of the ECOWAS Protocol on Free Movement of people
and goods to serve as a gateway for EU goods entering into West Africa and
thereby defeat the principal objectives of the ECOWAS.
It is therefore crystal clear that the member
states of ECOWAS do not stand to benefit economically from the membership of
Morocco in the economic grouping. Even, assuming without conceding that the
presence of Morocco in ECOWAS will add economic value to the organization the
illegality of the request to be a member state of ECOWAS cannot be justified
under the community law. It is worthy to recall that a similar application
was rejected by the European Union in 1987 on the ground that Morocco was not
considered to be a European country and hence could not join the European
Union. In the same vein, the application of Morocco to join the ECOWAS should
be rejected on the ground that it is not a State in West Africa.
As far as the community law is concerned
Morocco is not qualified to be a member state of the ECOWAS. By virtue of the
ECOWAS Revised Treaty of 1993, ECOWAS was set up to promote co-operation and
integration, leading to the establishment of an economic union in West Africa
in order to raise the living standards of its peoples and to maintain and
enhance economic stability, foster relations among the Member States. The
ECOWAS member states are 15 in number and they are: Benin, Burkina Faso, Cape
Verde, Cote D’voire, The Gambia, Ghana, Guinea, Liberia, Mali, Niger, Nigeria,
Senegal, Sierra Leone, and Togo.
The membership of the ECOWAS is restricted to
the States in the West African sub-region and in this regard, the Revised
Treaty has defined the “region” as the geographical zone known as West Africa
in line with Resolution CM/Res/.464/(XXVI) of the OAU Council of
Ministers. It is submitted that since Morocco is not located in West
Africa but in North Africa between the Atlantic Ocean and the Mediterranean Sea
it does not satisfy the geographical criterion to be a member state
of the ECOWAS. In the circumstances, the admission of Morocco will
automatically lead to a change of the prerequisites for accession and a
comprehensive review of the Revised Treaty and other legal texts of the ECOWAS
to reflect the inclusion of the North African country in the economic
union.
Furthermore, according to Article 2.2 of the
ECOWAS Revised Treaty the members of the Community, hereinafter referred to as
the Member States, are the States that ratified the Treaty. It follows that any
West African State may apply to become a member of the Community, which
requires that the applicant be a State in West Africa whose territory is
located at least in part on the geographical space of West Africa. This
requirement can be deduced from the 1975 Treaty, which states that the Members
of the Community, hereinafter referred to as "Member States" shall be
the States that ratified the Treaty and such other West African States as may
accede to it. Morocco is not qualified to accede to the ECOWAS
Revised Treaty as it does not satisfy the geographical criterion as “region” in
this case means the geographical zone known as West Africa.
Pursuant to Resolution CM / RES.464 (XXVI) of
the Council of Ministers of the Organisation of African Unity (now the African
Union) Africa was divided into five Regional Economic Communities (RECs). The
RECs covering these regions signed the Protocol of Relations between the
African Economic Community (ECA) and the RECs on 25 February 1998. In
September 2006, the African Union initiated the first rationalization of regional
integration initiatives by designating ECOWAS as the only strategic framework
for regionalization in West Africa. The 1993 revised ECOWAS Treaty respects the
regional delimitation.
Morocco is presently a member of the Arab
Maghreb Union (AMU), the REC for the countries in the North African region. The
members of AMU have not been able to meet at Summit level since 2008 due
to the unending disagreements over Morocco’s continuing illegal occupation of
Western Sahara, a member state of the African Union. Even though Morocco
has just been admitted to the African Union it has begun to threaten the unity
and solidarity of member states by promoting decisive politics. For instance,
in 2016, Morocco led several Arab countries to withdraw from the Arab African
Summit on account of the participation of Western Sahara.
In view of the legal obligation imposed on
the member states of the African Union by the African Charter on Human and
Peoples’ Rights to recognise the right of colonised peoples to
self-determination majority of the member states of the ECOWAS have accorded
diplomatic recognition to the Saharawi Arab Democratic Republic, a member state
of the African Union. But the Kingdom of Morocco has continued to occupy the
territory of SADR. The occupation of the territory of SADR is a gross violation
of the Ruling of the International Court of Justice delivered in 1975 wherein
it was held that the “materials and information presented to it do
not establish any tie of territorial sovereignty between the territory of Western
Sahara and the Kingdom of Morocco or the Mauritanian entity.”
v
All member states of ECOWAS have adopted the
Protocol on Democracy and Good Governance which stipulates that accession to
power “must be made through free, fair and transparent
elections.” The Protocol emphasizes on separation of powers, and
among others the independence of the Judiciary and judges. The Protocol is also
clear on the neutrality of the State in all matters relating to
religion. In Amouzou Henry & Ors. v. The Republic of Cote
d'Ivoire (2004-2009) CCJELR 281 at 297 the Community Court of Justice held
that“The commitment to the African Charter on Human and Peoples’ Rights is
derived from its ratification by each of the ECOWAS Member States, of two
fundamental instruments, which are the ECOWAS revised Treaty and the Protocol
Relating to Democracy and Good Governance (Art 1).” The system of
government in Morocco is monarchical and as such it is not qualified to adopt
and ratify the ECOWAS Protocol on Democracy and Good Governance.
All member states of the ECOWAS have also
ratified the African Charter on Human and Peoples’ Rights. Community citizens
have access to the Community Court of Justice to protect their human enshrined
in the African Charter. In Manneh v. Republic of The Gambia (2009)
CCJLR (PT 2) 116 at 133 this Honourable Court, while interpreting the provision
of Article 9(4) of the Protocol of the Court of Justice as amended opined that
it has jurisdiction to hear and determine cases of violations of human rights
of community citizens that occur in any of the member states of the
ECOWAS. Since Morocco has refused to ratify the African Charter on Human
and Peoples’ Rights its citizens cannot access the Community Court to challenge
the abuse of their human rights.
The admission of Morocco to ECOWAS will
encourage other countries to belong to any REC of their choice in violation of
the 2006 Resolution of the African Union. The admission will also dilute the regional
integration of the member states and people of West Africa contrary to the
letter and spirit of the ECOWAS Revised Treaty. Indeed, as the request of
Morocco to join ECOWAS was granted in principle by the Authority of Heads of
State and Government of ECOWAS without consultations with relevant stakeholders
it has attracted negative reactions from many interest groups. For instance,
the Organisation of African Trade Union (OATUU), the Nigeria Labour Congress
and a number of other leading civil society organizations and private business
groups in West Africa have kicked against the request of Morocco to join the
ECOWAS.
In the light of the foregoing, it is
indubitably clear that the ECOWAS does not stand to benefit economically from
the admission of Morocco as a member state of the economic union. In addition,
the request of Morocco to be a member state of the ECOWAS is at variance with
the provisions of the Revised Treaty and the other legal texts of the ECOWAS.
Therefore, we urge you to use your good offices to prevail on the Authority of
Heads of State and Governments of the ECOWAS to reject the illegal request of
Morocco to join the economic union. However, it should be pointed out that the
rejection of the request for membership is without prejudice to the observer
status of Morocco in the ECOWAS.
Femi Falana is a Senior Advocate of Nigeria and former President, West African Bar
Association.
