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
organisation 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 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 a
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.
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
organisation 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 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 a
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.
Read more https://www.nairalaw.com/falana-writes-ecowas-kicks-against-moroccos-bid-to-join-regional-bod/