By Femi Falana
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.”
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.
Senior Advocate of Nigeria and former President, West African Bar Association.