The Court must first of all recall that it has no mandate whatsoever to act as a
watchdog over the legality of a sister organisation such as UEMOA. In every
instance it has been requested to interfere in the relations among organs of
UEMOA, or to assume the role of any such organ of UEMOA, notably the Court
of Justice of UEMOA, the ECOWAS Court of Justice has declined jurisdiction in
the matter, in due regard for those alternate legal or judicial orders.
It shall be appropriate to recall that in its judgment of 4 March 2010 on Case
Concerning Dr. Mahamat Seid Abazene v. Republic of Mali, the Court declared
that the dismissal of Dr. Mahamat Seid Abazene had to do with a public service
dispute within the African Union and that the ECOWAS Court of Justice had no
jurisdiction to examine such a dispute. Further, the Court, in its judgment of 8
February 2011, held in El-Hadji Tidjani Aboubacar v. BCEAO and Republic of
Niger that: “… if the Honourable Court does not decline its avowed rationae
materiae jurisdiction, it will inevitably be led to assume a right it is depositary
of and whose implementation is conferred expressly and unequivocally on
another Regional Court.” (§31). In paragraph 32 of the same Judgment, the
Court concludes thus: “The Court is also of the opinion that although its
rationae materiae jurisdiction is relevant, it is incumbent upon it to decline that
jurisdiction in view of the exclusive jurisdiction of the Court of Justice of
UEMOA over the facts of the instant case.”
The Court must reaffirm that position of principle in the case at hand. The
ECOWAS Court of Justice has no mandate to keep watch over a legal system
obtaining in the same sub-region but for which specific mechanisms of sanction
are provided. The ECOWAS Court of Justice cannot therefore arrogate to itself
the duty regarding the observance of the Rules of Procedure of UEMOA.
Nevertheless, by a more general scope of principles, the right to choose one’s
lawyer constitutes today an undeniable component of the rights to defence, a
prerogative which arises from “human rights”. The unfettered right to choose
one’s representative or lawyer before a court is thus consecrated by:
- The African Commission of Human Rights, in its Communication No.
48/90, in Amnesty International v. Sudan: “The right to freely choose
one’s counsel is essential to the assurance of a fair trial. To give the
tribunal the power to veto the choice of counsel of defendants is an
unacceptable infringement of this right.” (§64);
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