COVID-19 & the ECOWAS Community Court of Justice, West Africa

This blog was written by Adedamola Gbolahan, PhD Student in the OU Law School. Adedamola is a trained Nigerian lawyer with experience in international law, corporate law and law of taxation. She holds an LLB degree from the University of Lagos, Nigeria, a BL from the Nigerian Law School and was called to the bar as a barrister and solicitor of the Supreme Court of Nigeria in 2015. She obtained an LLM from Bournemouth University, United Kingdom and has worked as an associate at the law firm of Ayinde Sanni & Co, Lagos, Nigeria. 

The effect of the COVID-19 pandemic in virtually all walks of life cannot be overlooked. To curb the negative effect of the pandemic, nations, institutions, and organisations continue to establish new measures, rules, and regulations to help adapt to the sudden change and maintain some normality.

Judicial institutions across the world have also adopted various measures to ensure that access to justice is not defeated by the pandemic. In the United Kingdom, for instance, some practice directions have been adopted for this purpose i.e.  Practice Direction 51Y which makes provisions for video and audio court hearings during the pandemic, Practice Direction 51Z which provides for stay of possession proceedings during the pandemic and Practice Direction 51ZA which provides for the extension of time limits during the pandemic.  A few other nations, like China and Nigeria, have also put similar measures in place.

The international judiciaries have also put similar measures in place. Excitingly, some international and regional courts in Africa, like the ECOWAS Community Court of Justice (ECCJ), a regional court for West Africa and the African Court of Peoples’ and Human Rights (ACtPHR) have adopted new practice directions specifically directed at adapting to the current COVID-19 reality.

Worthy of commendation is the swiftness of the courts in adjusting to the effects of the pandemic, especially the ECCJ whose new Practice Directions on Electronic Case Management and Virtual Court Session of the ECCJ entered into force on the 13^th of May 2020, shortly after many West African states went into lockdown. The objective of the new practice direction is to ensure the safety of the judges and other members of the Court as well as the court users while maintaining timely and efficient disposal of cases.

The provisions of the new ECCJ practice direction can be categorised into 3 sections:

1. electronic filing and service of court processes and other legal documents,
2. conducting virtual court sessions, and
3. conducting physical court sessions.

The electronic filing and service of court processes and legal documents is a long-overdue development. Under the new practice direction, the parties and their counsels are expected to file and serve their court processes and legal documents electronically rather than physically. The filing is to be done by sending the documents via email to the Court’s registry while service is effected via the official email of the other party(ies), who are in turn obligated to acknowledge service. To sustain this development, the ECCJ plans to launch the Electronic Case Management Solution Platform, and all lawyers to appear before the court will be required to register to the platform once it is launched.

Another major development is the conduct of virtual court sessions, which can be initiated by a party to a case, or by the Court on its own accord. Once a virtual session has been scheduled, the Registry communicates to the parties and counsels via email or other electronic means informing them of the date and time of the court session, the intending business of the day, the electronic means of joining the virtual session, the meeting ID and password. Before the session, the Registry and the IT department of the Court liaise with all counsel on record to ensure that all necessary facilities are put in place.

Parties, counsel, judges, and other relevant staff of the Court must be connected 15 minutes before the scheduled time of the virtual session. The virtual proceedings are recorded by the Court and the transcripts constitute the official record of the Court. Certified True Copies (CTC) of the transcript will be made available to parties and counsel, upon request. Also, an abridged version of judgements and rulings of the Court is delivered in virtual court sessions while the CTC of the full judgements and rulings containing the full reasoning of the Court are forwarded to the parties and their counsels electronically.

Lastly, notwithstanding the provisions for virtual court sessions, the new practice direction maintains that the Court may, in exceptional cases, decide to hold a physical court session. To ensure proper social distancing, the Court must ensure that not more than two cases are fixed for the same day. Also, the sequence and specific time for each case must be fixed and communicated to the parties and counsels in advance. The Chief Registrar ensures strict observation and enforcement of social distancing and makes sure that the staff, counsels, litigants, and other persons in the Court wear face coverings while in the courtroom or within the Court premises.  

In conclusion, the new practice direction is a big step in the right direction, and it introduces two major developments.  First, if properly maintained, the Electronic Case Management Solution platform may put a permanent end to physical filing and also improve the storage and filing systems of the Court. Secondly, the conduct of virtual court sessions will afford parties and their counsels from the different member states the opportunity to access the Court without having to travel from their respective countries to Abuja, Nigeria where the Court is situated. The Court has indeed been able to carry on its business despite the crippling effects of the pandemic and has so far delivered a few very significant judgements.