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Opinions of Wednesday, 20 April 2016

Columnist: Abdul-Yekin, Kofi Ali

Who are our law makers in ECOWAS?

Very few ECOWAS citizens understands what is meant by "law" and how such laws are made. Most of the few that had some idea of what the word "laws" mean are incapable of the role such laws play in the creation of the regional market.

Why is democracy fundamental to the existence of ECOWAS and why is the regional body religious in having everyone of the 15 member states to fully adhere to the tenets of democracy? The answer lies in the fact that democratic ideals are fundamental to the "survival of a successful ECOWAS". So democracy is pre-conditional to a workable ECOWAS.

Every successful democratic institution, thrives on the commitment to three key principles of the Rule of Law, Seperstion of Power and Check and Bslance. The entity must also be religious about such commitments.

The first is the Rule of Law. By the Rule of Law, the society is defined as an establishment of law and every citizen is to live by the laws of the entity. Thus, the action of every individual, in relating to another individual, institution or thing, must be pre-defined by a clearly defined law. This further means, the action of every one or thing, must be set against a stated law, before such action can be judged by a competent court of law, as unlawful.
The second principle of a democratic governance is the Separation of Power. This principles on the presumption that power heaped on a single person or a group, is corruptible, and therefore a threat to the survival of the governed. It states that "power corrupt, absolutely power corrupt". The principles therefore compartmentalise the powers that make up government into three independent parts. The first is the legislative arm, solely responsible for the making of all laws. The legislative organ or the Parliament is best referred to as the factory or the manufacturing sector of the law.

So the use of law by any other arm of government in any form, will be unlawful in a democratic setting, when such used law is sourced from any other source than the laws made and passed by parliament.

A society running a democratic system of government with a clearly establish parliament, is like a society running a healthcare for its people but, without a certified manufacturer responsible for the production of medicine to be consume by the market. The doctors, nurses and other health workers, will be making up their own medications!! Marabouts, fetish doctors, fake pastors and witch doctors, are going to be big business, as the manufacturers of the society's medicine do not exist. The poor citizens will be dying massively by poisoning than the right medicine.

An example of a parliament in the case of Ghana, is the National Parliament, filled with parliamentarians to legislate. The ECOWAS Parliament and the ECOWAS MPs, are supposed to be those responsible for the making of the ECOWAS laws. The members of the legislative arm of governance get their mandate largely by election in a democratic setting.

The next arm of a democratic government, under the principle of Separation of Power, is the Executive. This compartment of governance is led by the Executive president in the case of Ghana who gets his or her mandate through general election. A group of heads of states or heads of governments, as members of ECOWAS Assembly, form the executive arm in the case of ECOWAS. It is important to mention that all the component in the chain of law enforcement of member states or the ECOWAS Commission, form part of the executive arms of their institutions. The executive arm of government is responsible for the execution or carrying out of the laws made by the legislatures in the parliament or interpreted by the judiciary as such.
The third arm of government, in an ideal democratic setting, is the judiciary. The judiciary is more of an experienced professionals in the legal field, than politicians. The mandate here is majorly by appointment than political affiliation or view. This third arm is responsible for solely for the interpretation of the laws made by parliament. The judiciary consist of all institutions of arbitration, of a status befitting a reputable court law, recognise by the authorising law to be responsible for the interpretation of the law. The judiciary is the forum for the interpretation (clarifying, establishing and giving meaning to) the law between an individual and another, an individual and an institution or between institutions, in the event of contentions. In Ghana, our courts of laws serve this purpose while in the ECOWAS, the ECOWAS Court of Justice is responsible for the interpretations of the ECOWAS Laws among individual citizens of ECOWAS and institutions.
The core objective of the principles of the Separation of Power, in a democratic environment, is Check and Balance. This principles had its genesis from the days of the autocratic governments of mediaeval European state. The separation of the three arms of government was a departure from dictators assuming executive position of governance and assuming a form of dictatorial nature because of concentration of power in a single body. The executive president, is as good as a monarch when all the powers are heaped up in the same person or group. Thus, what makes the executive or any form of government controllable in a democratic setting, is the check mechanisms of which the separation of power, guarantee. The decentralisation of power prevent one arm of government from playing all the functions of relating with the law. The compartmentalisation has proven to be the best check on the executive arm while allowing it to effective carry out its functions in a balanced and measured manner. It is also important to mention that the check is not only on the executive arm, as any of the other arms is culpable of abusing the power entrusted on them by the people.
Since all citizens are equally the victims of any abuse in a democratic setting, the Rule of Law was propounded to ensure all laws are made with all citizens as of paramount interest.
Since the Rule of Law in a democratic setting, premise itself on the fact that every aspect of citizens relationship must be in accordance with the law, the law serve as the guide to everything. More important to this rule is the relationship between the executive institution and the citizens, as that tends to be the most active determinants in law enforcement. Unlike the legislative arm that is limited to law making and the judiciary that just interprets the law, the executive is just everywhere.
Every act of the executive is totally dependent on the law. So since most of the executive roles are spontaneous, the temptation for the executive to make improvisation of the law in the course of enforcement is high. This entails both the making and interpretations of the law. This could be due to ignorance of law from poor training or total absence of the law. It is also important to mention that it is natural for any human being to opt for the improv idiom to the law and do this in favour of one's interest. Enforcing the law by improvisation, is an Abuse of Power and the basis for corruption.
The resultant victim is the citizen who suffers a downward trend in his or her aggregate fundamental right.
Yes, in Ghana like it is obtainable in almost all ECOWAS member state, Separation of Power, Rule of Law, Check and Balance are working. Parliaments of democratic elected members are making laws for the people, the executive arms are carrying out these laws and the judiciary are interpreting their laws. The economies of each of the 15 ECOWAS member states are working by law.
The challenge is, the ECOWAS region still operates segmented economies. The degree of connectivity among these economies is very poor. The coordinating agents of the ECOWAS single economy are just as good as the poor nature of the connectivity.
ECOWAS as a body without its own law making body, is like a regional market without its own law making factory. Who are then the law makers for the ECOWAS market? Is there any successful global or regional market in the world without its own law makers?
Yes, we all know about the ECOWAS MPs but are they also the ECOWAS law makers? Since ECOWAS has been in existence for nearly three decades and has been a regional market all along, who makes the ECOWAS laws? Are we saying ECOWAS has no democratically mandated law makers? Are we saying that the ECOWAS Commission, Commissioners and the regional Court of Justice, improvise their own laws? Or is the EU parliament helping ECOWAS with its laws making, just as they are assisting with the regional donor funding?
We all need to get to the bottom of this, to merit our status as ECRA ( ECOWAS Citizens Right Advocates). If the absence of ECOWAS laws translate into the existence of ECOWAS citizens, market, the Commission and the Court, working without laws, then such laws are improvised than laws made by ECOWAS parliament. Since we argued that the current ECOWAS practice is an abridge to democratic ideals of Separation of Powers, the rule of law, Check and Balance of Power, the huddle before us becomes the actualisation of arriving at ECOWAS parliamentarians on the principles of universal adult suffrage.

Kofi Ali Abdul-Yekin
Chair ECRA
(ECOWAS Citizens Right Advocate)