Judges look to precedent, i.e. previously decided cases, to guide and justify their decisions. There is no precedent anywhere in international law where an international court has overridden the judgement of the Supreme Court of a sovereign country.
The Supreme Court has power over all cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation are in question.
Anybody who has studied Constitutional Law knows that the constitution has granted the Supreme Court the power to be the “supreme law of the land,” and for all of its decisions to be final.
Reference from the Sierra Leone Constitution: .122. (1) The Supreme Court shall be the final court of appeal in and for Sierra Leone and shall have such appellate and other jurisdiction as may be conferred upon it by this Constitution or any other law: This is the case also in other English -speaking member states of ECOWAS.
In Nigeria, the constitution states in Section 1(1) of the 1991 Nigeria Constitution as follows: “This Constitution shall have the force of law throughout Nigeria and, subject to the provisions of section 4 of this Constitution, if any other law (including the Constitution of a region) is inconsistent with this Constitution, this Constitution shall prevail and the other law shall, to the extent of inconsistency be void).
In Ghana, section 1 (2) of the Constitution of Ghana provides that the Constitution shall be the supreme law of Ghana and any other law found to be inconsistent with any provision of this Constitution should, to the extent of the inconsistency be void. The Supreme Court is the only court in any sovereign state that has the final say in the interpretation of the constitution.
Secondly, no protocol or law has granted the ECOWAS COURT the power to be the supreme law in the land in its member states. I challenge anybody to provide the provisions in the protocols of the ECOWAS COURT where it is clearly stated that by acceding to or ratifying the protocols that established the ECOWAS COURT, members nations agreed that they were surrendering their sovereignty to the court.
The ECOWAS Court has the power to rule and enforce its verdicts on cases of the violation of the human rights of citizens of member states. What is however debatable is whether the Court has the power to regard verdicts of the Supreme Courts of member states as violation of human rights. The Supreme Court of Sierra Leone, which has the final say, has ruled in the Sam Sumana case. What jurisdiction and rights have the ECOWAS COURT to deem the ruling of the Supreme Court as a violation of the human rights of Mr. Sumana? Where is the law that permits that? Where is the precedent?
Sierra Leone has very good reasons to ignore whatever ruling is delivered by the ECOWAS Court.
1. If they rule in favour of Sam Sumana, the ruling will not have the force of law in Sierra Leone because it will contravene the constitution, the supreme legal instrument in the nation and the power of the Supreme Court, which has the final say in all legal matters. If Sierra Leone recognizes and accepts any ruling in favour of Sam Sumana , she will be telling the world that she is no longer a sovereign nation and the ECOWAS COURT interprets her constitution for her. She will also be telling the world that her Supreme Court is no longer the highest court and the final arbiter of justice in the land and that the ECOWAS COURT has taken the place of the Supreme Court.
2. ECOWAS laws such as pertaining to the protocols and provisions of the court have not been domesticated or enacted into law by the Sierra Leone Parliament. How can you enforce a law in a country whose Parliament has not ratified it and accepted it as part of her laws?
“The High Court of Accra, Ghana on 2nd February 2016, delivered a ruling on an application filed by Mr. Chude Mba, seeking an enforcement of the judgment of the Economic Community of West African States (ECOWAS) Community Court of Justice (“ECOWAS Court”) entered in his favour against the Republic of Ghana. In its ruling, the court held that the decisions of the ECOWAS Court cannot be enforced by the courts in Ghana because the Republic of Ghana has not domesticated the Protocols of the ECOWAS Court “.
Source : Is the ECOWAS Court of Justice a Toothless Bulldog that only Barks? Issues Arising from the Decision of the High
Court of Accra in Mr.Chude Mba v The Republic of Ghana “, International/ Regional Law , March 4, 2016 : www.spaajibade.com).
Even if they have been domesticated , In Abacha Vs. Fawehinmi (2000 no.6 NWLR (Pt660) 228), the Supreme Court of Nigeria held that the Nigerian constitution was superior to the African Charter on Human and People’s Rights , though it had in fact been domesticated through legislation , around which are built the human rights protocols of the ECOWAS COURT.
In an article I wrote last year, published by the AWARENESS TIMES newspaper , I said : “The question of whether a constitutional matter of a sovereign nation that was settled by the Supreme Court—The highest court and the final arbiter of justice in the land — could be regarded as a violation of human rights under the provisions of the ECOWAS Court and international law was answered by the fact that there is no precedent in international law and secondly , there is no provision in the protocols of the International Covenant on Civil and Political Rights, the Universal Declaration of Human Rights and the African Charter on Human and Peoples’ Right where the Supreme Court of a sovereign country in ruling on a constitutional matter was held to have committed human rights violations.” I stand by this statement.