Ecowas Court of Justice called to judge the legality of Niger Law No. 36/2015

Niger has become progressively more important as a partner of the European Union in migration management policies. Since 2015, it has become central in controlling the so-called Central Mediterranean route, which leads migrants from West Africa to Libya and then to Europe.

The diplomacy of the Union and its member states has thus intervened strongly to establish partnerships with “transit” countries in order to put obstacles in the way of mobility to prevent people from arriving at European borders.

The legislative and operational measures financed and promoted by the European Union in West Africa in relation to border control have intervened in the context of the Economic Community of West African States (ECOWAS), which, despite numerous slowdowns and crises, places regional integration and the free movement of goods and people as a key factor of its development. European diplomacy has had an extremely negative impact on this system, effectively limiting the possibility for ECOWAS citizens to move freely within the Community.

Prominent among these interventions is the approval and implementation of Law No. 36 of 2015 of the Republic of Niger, which led to increased controls on ECOWAS citizens along the country’s borders, on the main internal mobility axes, and which effectively prevented movement in the Agadez region, removing an entire portion of territory from the exercise of the right to free movement.

Starting in late 2020, a group of European and African associations, professors and jurists undertook joint work on the analysis of the impact of the law on free movement in Niger and of the legal instruments that can be activated.

The joint work included a field analysis of the implementation of the law and the experiences of migrants in relation to it, the collection of information and reports, and an analysis of the legal instruments and violations to the Ecowas free movement system implied by the law.

In May 2022, the Association Malienne des Expulsés and the Association l’Association Jeunesse Nigérienne au Service du Développement Durable (an association part of the Alarm Phone Sahara network), with the support of ASGI, NULAI, OMCT, and of the Nile University Law Clinic,  lodged an appeal to the ECOWAS Court of Justice against Law No. 36 of 2015 on the “illicit trafficking of migrants”.

According to the plaintiff associations, the implementation of the law has led not only to a gross violation of the right to free movement of ECOWAS citizens, but also to the detention, deportation, harassment, and torture of migrants in the country. 

The law has in fact been implemented through an increase in controls, which has led to an undue restriction of the right to free movement: as part of the controls, the national authorities systematically demand additional requirements over and above those stipulated in the legislation. Failure to meet these additional requirements or simply refusal to pay sums of money illegally demanded by the authorities leads to refusal of entry or the impossibility of continuing the journey. 

The controls put in place to implement the law have also resulted in forms of detention for the purpose of obtaining money from the security forces, forms of violence and, in some cases, the use of torture. This clearly resulted in the violation of fundamental human rights, recognised by the African Charter on Human and Peoples’ Rights and numerous other international instruments. The law is formulated and implemented in a discriminatory manner that does not guarantee equal access to the protection of rights. Furthermore, the conduct of the authorities violates the right to human dignity and the prohibition of torture and inhuman and degrading treatment and punishment, the right to liberty and personal security and the right to have one’s case heard in court proceedings.

The environment established by the approval and then implementation of l. n 36/2015 and the ‘witch hunt’ unleashed against migrants has pushed foreign nationals towards increasingly dangerous routes. As a result, they have become increasingly vulnerable to violence and human rights violations and have found it even more difficult to access assistance and protection services. The practice of kidnapping for ransom and arbitrary detention has increased in Agadez: migrants are more likely to be detained out of sight in ghettos, where they have no access to medical care or other services. Moreover, given the difficulty of the journey, smugglers sometimes try to profit from the sale of migrants, who are thus subjected to further ill and degrading treatment. This results in an infringement of the right to life and a series of rights to which migrants do not have access precisely because of their progressive clandestinisation and the summary detention and deportation processes to which they are subjected. These include the right to property, health, protection of private and family life, and access to education.

Given this situation and the jurisdiction of the Court of Justice to hear cases of human rights violations, the Association Malienne des Expulsés and the Association Jeunesse Nigérienne pour le développement Durable have initiated an actio popularis in relation to the violation of the rights of an entire community, such as the rights of persons on the move and the public interest in respect for freedom of movement and related rights. In fact, this case is to be considered of public interest as it concerns the most fundamental rights (non-discrimination, equality, life and integrity, liberty, freedom of movement, prohibition of torture, access to justice) of ECOWAS citizens who deserve a judicial decision if they are victims of restrictions and violations, including those under national laws. 

1. Jeunesse Nigérienne au Service du Développement Durable (JNSDD AIKIN KASA) is a national human rights organisation active in Niger and part of a number of transnational networks such as Afrique Europe Interact, Alarm Phone Watch The Med, Alarme Phone Sahara. JNSDD directs the APS project to assist migrants departing, transiting or arriving in Niger who face numerous challenges in Niger. In the course of its fieldwork, the association has witnessed numerous cases of violations of the rights of people on the move in the ECOWAS space due to the implementation of l. nr. 36 of 2015.
   Contact: +227 94 96 28 42; chehouazizou@gmail.com 

2. The Association Malienne des Expulsé (AME) was founded in 1996 by a group of Malian migrants. The members of the association have experienced repatriation at first hand and the missions of the AME stem from this experience. The Association intervenes in the defence of the rights and humanitarian assistance of migrants.  
   Contacts: expulsesmaliensbasta@yahoo.fr  

3. The World organization Against Torture (OMCT) works with 200 member organisations to end torture and ill-treatment, assist victims, and protect human rights defenders at risk wherever they are. Together, we make up the largest global group actively standing up to torture in over 90 countries. 
   Contacts:  (+) 41 79 539 41 06;  omct@omct.org
   Web: www.omct.org

4. The Association for Juridical Studies on Immigration (ASGI) is a membership-based association focusing on all legal aspects of immigration. As a pool of lawyers, academics, consultants and civil society representatives, ASGI’s expertise relates to various areas of immigration and migrants’ rights, including but not limited to antidiscrimination and xenophobia, children’s and  unaccompanied minors’ rights, asylum and refugee seekers, statelessness and citizenship. ASGI’s members provide their contribution at various levels: administrative, policy-making and legal, both in national and European contexts. 
   Contacts: info@asgi.it; sciabacaoruka@asgi.it

5. Nile University Law Clinic is a university-based law clinic under the Faculty of Law Nile University of Nigeria Abuja. Its main focus is Access to Justice, Human Rights, Social Justice and Clinical Legal Education. You can contact us on +2347060957697 law.clinic@nileuniversity.edu.ng

6. Network of University Legal Aid Institutions (NULAI) Nigeria was established in 2003 as a non-governmental, non-profit and non-political organization committed to promoting clinical legal education, legal education reform, legal aid and access to justice in Nigeria and the development of future public interest lawyers.
   NULAI builds a network of cohesive university-based law clinics providing pro-bono legal services to the under-served; while training a new generation of skilled law students committed to public service and justice. Since 2004, 14 University-based law clinics have opened in Nigeria, creating new avenues for free legal services.
   Contacts: nulainigeria@nulai.org