For two days, the University of Lomé hosted an international symposium on regional courts organised by the Centre for Public Law (CDP). Beyond the academic discussions on judicial review of constitutional amendments and respect for sovereignty, experts mounted a sweeping critique of inconsistencies in the jurisprudence of the ECOWAS Court of Justice, using its 29 January 2026 ruling against Togo as a revealing illustration of its shortcomings.
The organisers set the tone at the opening of the proceedings. The academic discussions would examine the essential balance between upholding the rule of law and respecting state sovereignty. The first presentations painted a picture of a regional judiciary facing an existential crisis. In his keynote address, former judge Alioune Sall recalled a stark political reality: “The creature cannot escape its creator.” Member states, as architects of the treaties, retain control over the institution. Professor Fabrice Hourquebie of the University of Bordeaux gave this political reality a legal framework.
Drawing on the case law of European constitutional courts, he noted that regional law takes precedence “unless it infringes upon a kind of hard core of sovereignty, a number of principles that define the constitutional identity of the state.” In his view, ECOWAS has disregarded this boundary. By directly challenging constitutional amendments in the past, and even more so today, the Court has undermined the principle of good-faith implementation. “It is in the common interest for states parties to be able to fulfil their obligations and, on the other hand, for courts to respect the scope of the obligations to which those states have consented,” he warned. The warning highlights the gap between European judicial restraint and the activism of the Court in Abuja.
“Jurisdiction Without Legal Basis” at the Threshold of Constitutional Law
Against this backdrop, the symposium turned to the contentious case of Togo’s 2024 constitutional amendment and the ensuing judgment. Professor Joseph Junior Kodjo outlined the functional limits of the court in Abuja. “The regional judge is not a constitutional judge. The regional judge adjudicates regional law,” he stated. Although a regional court may address constitutional questions through treaty provisions, it may do so only by reviewing compliance with international obligations. In principle, the distinction is clear. Yet, according to the speakers, the ruling of 29 January 2026 showed that the Court had crossed that line. Professor Dandi Gnamou, a judge at Benin’s Constitutional Court, delivered a particularly pointed assessment: “The Court exercised jurisdiction without legal basis. No provision of the 1993 Treaty, the 1991 Protocol, or even the 2005 Protocol confers on the ECOWAS Court of Justice jurisdiction to assess the validity of a constitutional law.”
To circumvent this restriction, she argued, the judges resorted to “indirect review” through human rights. But the approach runs up against a fundamental limit: “The absence of a power of annulment is, in fact, an ontological limit. The Court neither annulled the constitutional law nor ordered its withdrawal. It merely issued a declaratory and prospective finding of unlawfulness.”
Another sharp critique came from Dr Christian Trimua, an assistant professor at the University of Lomé. He identified what he considered a major inconsistency in the drafting of the judgment. Although written in English, the ruling based its reasoning on the French version of Article 23 of the African Charter on Democracy, Elections and Governance (ACDEG). As Dr Trimua observed, “the French version refers to democratic alternation, while the English version speaks of democratic change of government,” pointing to a semantic distinction with potentially far-reaching consequences.
The legal scholar also criticised what he viewed as inconsistent case law. In Guinea (the 2024 Diallo judgment), the Court had relied on the 2001 Supplementary Protocol to rule against a constitution adopted by referendum. In Togo’s case, he argued, it set aside that same protocol and instead relied on the ACDEG. In his assessment, the 2018–2026 bench, composed exclusively of professional judges, had acted “like an ordinary domestic court.”
Worse still, in his view, the Court had departed from the consent given by states by opening the door to an actio popularis that member states had never approved. The consequences of these alleged missteps soon became apparent. On the eve of the symposium, the ECOWAS Court’s Chief Registrar sent a reminder to Togo’s Minister of Justice calling for follow-up on the ruling. The article portrays the initiative as futile in the face of state resistance. Dr Trimua nevertheless added an important nuance: Togo does sometimes comply with judgments, but the central issue concerns the domestic reception of judicial protection. The country does not reject judicial scrutiny as such; rather, it questions whether its original consent is being reshaped by a court that continues to expand the reach of its jurisdiction.
Balance or Deadlock
Asked whether regional justice could impose its decisions on states, Dandi Gnamou was unequivocal: “Very clearly, no. Constitutional amendment is an act of sovereignty. […] To think that states will accept the Court’s decisions without being involved is simply not realistic.” To break the deadlock, she called for an “obligation of loyal cooperation” and an “ordered pluralism”—in other words, coordination among different legal orders. As Alioune Sall concluded, the Court must develop a sophisticated understanding of the balance of power, favouring “local surgery” over “shock therapy,” or risk being met with indifference by states.
For Professor Fabrice Hourquebie, the future of regional justice depends on a delicate compromise. “It is important to strike a balance between the pragmatism and realism expected of a regional court and the constitutional autonomy of the nation-state,” he argued. The underlying message was that, in the speakers’ assessment, the ECOWAS Court had overstepped by attempting a disguised form of constitutional review, whereas—as Professor Joseph Junior Kodjo insisted—its proper remit is “regional law.” As the symposium drew to a close, the legal scholars delivered a clear warning to Abuja: without realism and respect for state consent, the Court risks becoming an empty shell, a paper giant whose decisions states will continue to ignore.
By Sylvain ANJO
