The University of Lomé in Togo recently hosted an international colloquium on regional jurisdictions, organized by the Center for Public Law. The event brought together experts to discuss the control of constitutional revisions and the respect of state sovereignty. The discussions centered on the inconsistencies of the ECOWAS Court of Justice, particularly its January 29, 2026, ruling against Togo. Experts analyzed the court's limitations and the need for a balance between the guarantee of the rule of law and respect for state sovereignty.
The colloquium's inaugural lecture was delivered by former judge Alioune Sall, who emphasized the political reality of the ECOWAS Court's limitations. He noted that the member states, as creators of the treaties, maintain control over the institution. Professor Fabrice Hourquebie from the University of Bordeaux further explained that regional law takes precedence unless it infringes on a state's core sovereignty. He argued that the ECOWAS Court has ignored this limit, leading to an imbalance between state sovereignty and regional justice.
The experts examined the case of Togo's 2024 constitutional revision and the ECOWAS Court's ruling on it. Professor Joseph Junior Kodjo highlighted the functional limitations of the ECOWAS Court, emphasizing that it is not a constitutional court but rather a regional law court. He noted that the court can only exercise conventional control when seizing constitutional questions via treaties. However, the January 29, 2026, ruling demonstrated that the court has overstepped its authority.
Professor Dandi Gnamou, a judge at the Benin's Constitutional Court, delivered a scathing critique of the ECOWAS Court's ruling. She argued that the court has exercised "competence without title," as no provision in the 1993 treaty, 1991 protocol, or 2005 protocol grants it the authority to assess the validity of a constitutional law. The court circumvented this prohibition by using a "control by ricochet" via human rights, resulting in a declaratory and prospective finding of illegality.
Dr. Christian Trimua, a lecturer at the University of Lomé, identified significant inconsistencies in the ECOWAS Court's ruling. He noted that the ruling was written in English, while the judges based their decision on the French version of Article 23 of the African Charter on Democracy. This semantic confusion has significant consequences. Dr. Trimua also highlighted the court's variable geometry, citing its differing approaches in Guinea and Togo.
The consequences of the ECOWAS Court's inconsistencies have been swift. The court's greffier en chef sent a letter to the Togolese Minister of Justice, requesting implementation of the ruling. However, the states have resisted, and Dr. Trimua nuanced the debate by noting that Togo sometimes executes decisions but questions the "reception of protection." The country does not refuse to be judged but wonders if its initial consent is being transformed by a court that continually expands its jurisdiction.
The experts concluded that the ECOWAS Court must demonstrate a deeper understanding of the complex relationships between regional justice and state sovereignty. Professor Dandi Gnamou emphasized that the revision of a constitution is an act of sovereignty and that states will not accept decisions imposed upon them. She advocated for an "obligation of loyal cooperation" and the establishment of an "ordered pluralism" to coordinate different legal orders.
Key points
- Experts criticize ECOWAS Court for overstepping authority in Togo's constitutional revision case
- ECOWAS Court's inconsistencies spark debate on regional justice and state sovereignty
- Experts call for a balance between regional justice and state sovereignty, and for an "obligation of loyal cooperation" among member states
