ECOWAS Court Finds Togo Violated Freedom Of Expression During 2017 Protests

• Published date: 27 July 2020
• Subject Matter: Government, Public Sector, Media, Telecoms, IT, Entertainment, IT and Internet, Constitutional & Administrative Law, Human Rights
• Law Firm: Leigh Day
• Author: Ms Liberty Bridge and Maya Ogundipe

In recent times, it has become the norm for images and videos to be shared on the internet in real time during political protests. Doing so alerts fellow citizens and media outlets to any issues that may arise and can be a critical evidence gathering tool.

However, on two occasions in 2017, protests calling for constitutional reform in Togo were suppressed through a government-initiated internet shutdown. The shutdown disabled Togolese citizens' access to the internet in all forms, including social media and data messaging (such as WhatsApp). This halted protesters' ability to communicate and report on what was happening.

In response, Amnesty International Togo, six local NGOs and a Togolese journalist filed a complaint before the Economic Community of West African States (ECOWAS) Community Court of Justice, claiming that their right to freedom of expression was violated by the government's internet shutdown during the protests.

On 26 June 2020, the ECOWAS Court found that there had been a violation of the plaintiffs' rights and that compensation should be awarded. The Court further directed the Togolese government to 'enact and implement laws, regulations and safeguards in order to meet its obligations with respect to the right to freedom of expression in accordance with international human rights instruments' and 'take all necessary measures to guarantee non-occurrence of this situation in the future'.

History of ECOWAS

ECOWAS has 15 member states and was established to promote economic integration within the West African region. The ECOWAS Community Court of Justice is located in Abuja, Nigeria and has been operational since 2000. Whilst the ECOWAS Court was created for the primary purpose of adjudicating inter-state economic disputes, it is now known for its active judgments against member states for human rights abuses.

The landmark case Olajide Afolabi v. Federal Republic of Nigeria saw a businessman file a complaint against Nigeria for non-compliance with ECOWAS free movement rules by unilaterally closing the border with Benin after he had entered a contract to purchase goods. The ECOWAS Court found in favour of Nigeria, interpreting strictly the provisions of the 1991 Protocol on the Community Court of Justice and concluding that the Protocol precluded the court from receiving complaints from private individuals.

Recognising this obvious flaw, NGOs, ECOWAS judges and community officials campaigned for the Court to hear disputes involving violations...