State compliance as a legal obligation: Exploring international norms and experiences

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National enforcement framework and compliance experiences

The Gambia

The law

Foreign courts’ orders are enforceable in The Gambia in accordance with the Foreign Judgments Reciprocal Enforcement Act 6 of 1936. This Act provides for the registration and execution of judgments of superior courts of foreign countries under the condition that ‘substantial reciprocity of treatment will be assured as regards the enforcement in that foreign country of judgments given in the superior courts of The Gambia’.31 The main conditions for accepting foreign judgments as enforceable in The Gambia include that: The judgment shall be final and conclusive between the parties, notwithstanding that an appeal may be pending against it.32 Interestingly, when the judgment seeking registration is expressed in a currency other than the currency of The Gambia, the judgment shall be registered as if it were a judgment for the same sum in the currency of The Gambia at the exchange rate prevailing in the country of origin by the date of the judgment.33 Foreign judgments seeking enforcement in The Gambia must have become enforceable and final in their jurisdiction of origin in the same manner as a judgment given by a domestic court. Once foreign judgments have acquired municipal status, they are enforced as those originating from domestic courts. In practice, 34 plaintiffs would hire a lawyer to represent them in the enforcement phase. A court bailiff or sheriff shall be approached to obtain an enforcement order which is attached to the judgment. The plaintiff then identifies defendant’s assets to be attached and report of such is forwarded to the judge. A public auction is organised for sale of movable property following which the court issues an order for the proceeds of the auction to be delivered to the plaintiff. Non-pecuniary orders are self-executory by the judgment itself. Consider an order for a detainee to be released. Once the order has been made, it shall be caused to be registered with the Registrar of the High Court, and thereafter be exhibited before the relevant authority in whose hands the detainee is.
The Gambia is reported to have effective mechanisms of enforcing property and contractual rights. The same report reveals that though they are said to be frequent, government attempts to interfere with courts have faced resistance from judges and domestic courts which accept and enforce foreign judgments.35 According to the same source, the government has also accepted binding international arbitration of investment disputes against foreign investors and awards of such proceedings are recognised and enforced by local courts.36 Finally, in 2011, The Gambia has introduced new legislation or expanded the scope of specialised courts under existing regulations. The country has modified its procedural rules and adopted new ones making enforcement of judgments more efficient.37 Finally, it is worth noting that while enforcement procedures are not written, section 5(2) of the Constitution of The Gambia makes it an offence to fail to carry out or obey a court order. The same section further provides that failure on the part of the President or Vice-President could constitute a ground for impeachment.

International decisions

The Gambia has not implemented a recommendation to bring its laws in conformity with the African Charter38 as decided by the African Commission in the Jawara case.39 Following a coup in which former Gambian President Sir Daouda Kairaba Jawara was overthrown the new government had, among others, suspended the bill of rights, banned political parties, and ousted habeas corpus by military decree. In the landmark case of Purohit v The Gambia,40 concerned with health conditions in a Mental Health Unit of a public hospital in The Gambia, the respondent state did not implement any of the Commission’s recommendations either, about ten years after the decision.41 Although recent moves leading to a change of health law in The Gambia have been recorded, such developments were not triggered by the Purohit case. They were rather spearheaded by the World Health Organisation as part of its Gambia programme.42
The leading state compliance with the African Commission study by Viljoen and Louw found that democracy, the rule of law and governance-related factors were the most important determinants of compliance. Among factors related to The Gambia, corruption perceptions indices were reported to be 2.5,43 the government being classified as ‘not free’44 but ‘stable’.45 Other communications brought to the African Commission against The Gambia were either rejected for not having exhausted local remedies or the case having reached an amicable resolution.

Domestic decisions

Field investigations show that The Gambia’s response to orders of its own domestic courts does not depart significantly from its compliance with decisions of international bodies. Before litigants could seek compliance, a court judgment ought to have been handed down which implies that justice was freely accessed and judicial process fairly conducted in the first place. The issue seems to be that free access to justice and fair judicial process are not the rule in The Gambia, where a climate of fear and victimisation of complainants is commonly experienced.46 One of the most striking examples include the 2012 case of Dr Amadou Scatered Janneh v Attorney-General in which Dr Janneh, a former minister of information and communications, was convicted and sentenced to life imprisonment with hard labour for distributing materials, namely tee-shirts, demanding an end to the rule of the incumbent President of The Gambia.47 According to the prosecution which had demanded the death penalty, Dr Janneh and others ‘conspired to overthrow the government by unlawful means’. While such sentence is outrageously unjust, the general rule of law and judicial environment in The Gambia suggests a trend of deterring litigation against the state, or involving the executive, through disproportionate and fear-raising sentences. Several cases from The Gambia reported on a daily basis attest to such.
Even under the assumption that a decision is obtained from a fairly conducted legal process, the state has not demonstrated a culture of obedience and enforcement has been prevented by the government through the most sophisticated pretences. This was illustrated in Ousman Sabally v Inspector General of Police and Others in which the Supreme Court of The Gambia unanimously held that ‘the application of the [Indemnity] Act to terminate the legal proceedings instituted by the plaintiff at the time constituted a contravention of the provisions against retroactive deprivation of a vested right as provided for by section 100(2)(c) [of the Constitution] and exceeds the competence of the National Assembly’.
49 In other words, the President of the Republic had sought an amendment of the Compensation Act to annihilate prospective claims for damages while the plaintiff was still proving his case in courts. The amended Act ousted the jurisdiction of regular courts in favour of the Claims Commission established to receive and hear claims and make recommendations to the President as to which of the claimants deserved compensation. The Supreme Court decision had not been complied with for ten years as at January 2012. Another case exemplifying The Gambia’s unfriendliness with the rule of law is Jammeh v Attorney-General50 in which the Supreme Court of The Gambia held that
the purported amendment of section 1(1) of the Constitution, 1997 contained in the Schedule to the Constitution of the Republic of The Gambia, 1997 (Amendment) Act, 2001 (No 6 of 2001), purporting to substitute for that section, a new section, namely, that ‘The Gambia is a sovereign secular Republic’, was a nullity and of no effect because of non-compliance with the provisions of section 226(4) of the Constitution.
In section 1 of The Gambian Constitution case, the government went ahead and had the provision amended despite its unconstitutionality. Cases of the state refusing to release applicants despite several court orders include Kanyiba Kanyi v Director General of NIA and Attorney-General,51 in which Justice Sanji Monageng ordered that the applicant be released from unlawful detention unconditionally. As at January 2012, the applicant was still in detention, six years after several courts’ orders.
The case of The State v Moses Richards similarly attracts interest for depicting The Gambia’s disrespect for the rule of law and domestic courts’ proceedings. Here, Mr Moses Richards, a lawyer and former judge, was charged with sedition for providing false information to a public officer [the Office of the President] while he was merely trying to help a client enforce a judgment. He was subsequently sentenced to two years and six months imprisonment solely for legal representation in the course of which he was said to have mentioned the Office of the President. Sentenced on 19 September 2011, Mr Moses Richards was released following a presidential pardon issued 14 October 2011.53 One must at least note that The Gambia does not show much eagerness to defend its own citizens against infringements from third parties. In the African Commission case of Esmaila Connateh and 13 Others v Angola, The Gambia refused to respond to civil society efforts, namely calls to use diplomatic means, to seek enforcement on the part of Angola although the decision was in favour of Gambian nationals.54
Other practices experienced by lawyers include the state pretending that the person to be released as per court order is no longer in its custody, or re-arresting a person who has just been granted bail, or, mostly, resorting to negotiation or amicable settlement to avoid implementing courts’ decisions fully in commercial cases.55 Field investigations and interviews in The Gambia have, however, revealed that money judgments have been satisfied in some cases where the state had no particular interest as opposed to non-monetary judgments, criminal or politically related cases that are closely monitored by the state.56 In the case of Abdul Aziz Jeng v Commander of Armed Forces, for instance, the Attorney-General is said to have expressed the will to pay but for budgetary constraints.

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Declaration 
Dedication 
Acknowledgment 
Summary of the thesis
Chapter I: Introduction 
1. Background to the study
2. Thesis statement and research questions
3. Significance of the study
4. Clarification of terminology
5. Literature review
6. Research methodology
7. Overview of chapters
8. Limitations of the study
Chapter II: State compliance as a legal obligation: Exploring international norms and experiences
1. Introduction
2. State compliance as a general law obligation
2.1 Pacta sunt servanda, reparation and effet utile
2.2 A case-by-case approach to compliance with decisions of international bodies
3. Compliance obligation in ECOWAS: Law, institutions and mechanisms 
3.1 General obligation to obey ECOWAS rules
3.2 Specific compliance with ECCJ judgments
3.3 Implementation procedure and compliance securing mechanisms
3.3.1 Implementation of judgments at the domestic level
3.3.2 Compliance securing mechanisms: Sanctions with no appeal?
4. Compliance with the decisions of United Nations bodies
4.1 Decisions of the International Court of Justice
4.2 Views and decisions of UN human rights treaty bodies
5. Compliance in regional human rights regimes
5.1 Americas
5.2 Europe
5.3 Africa
5.3.1 The African Commission
5.3.2 The African Court
6. Sub-regional experiences on compliance and enforcement
6.1 The imperative of strengthening enforcement and compliance rules in SADC Tribunal
6.1.1 Jurisdiction of the Tribunal, human rights and enforcement under the SADC Treaty
6.1.2 Judicial developments of the Campbell case
6.1.3 Political developments of the Campbell case:
SADC practice of enforcement monitoring
6.2 Positive trends of compliance with EAC Court of Justice
7. Conclusion
Chapter III: State compliance from a domestic perspective: Law and experience of study countries 
1. Introduction
2. Understanding ECOWAS philosophy of reception and execution
3. National enforcement framework and compliance experiences
4. Conclusion
Chapter IV: Categorisation of compliance and compliance narrative of study cases 
1. Introduction
2. Categorisation of compliance
3. Compliance narrative of study cases
4. Conclusion
Chapter V: Compliance factors relating to the Court and monitoring mechanisms 
1. Introduction
2. State compliance factors according to theoretical and empirical research
3. Factors related to the body (ECOWAS Court of Justice)
4. Conclusion
Chapter VI: Compliance factors relating to the cases, defendant states, and political pressure
1. Introduction
2. Factors related to the case
3. Factors related to the respondent state
4. Factors related to civil society actors
5. Involvement of the media
6. Political will of the umbrella organisation and peer pressure
7. International pressure
8. Conclusion
Chapter VII: Influence of the human rights jurisprudence of the ECOWAS Court of Justice
1. Introduction
2. Theoretical and empirical approach to influence
3. Influence of the ECOWAS Court judgments on the domestic systems of defendant states
4. ‘Spill-over’ influence of the ECCJ’s human rights judgments on other ECOWAS countries
5. Impact beyond ECOWAS
6. Conclusion
Chapter VIII: Conclusions and recommendations 
1. Conclusions
2. The ECOWAS regime as an alternative to the African system?
3. Recommendations
Bibliography 
Annexures
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