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134
Essien v The Gambia and Another
(2007) AHRLR 131 (ECOWAS 2007)
7. On issue three, counsel to the defendant submitted that the
case bordered principally on unlawful or wrongful termination of the
respondents’ appointment and not human rights violations. On the
contrary, counsel to the plaintiff submitted that the plaintiffs claim
is not predicated on a breach of contract of employment with the
defendants but the breach of fundamental rights to equal pay for
equal work done. He reiterated that human rights are political,
social, economic and cultural rights. He submitted that rights falling
under the above stated breakdown of human rights are justiciable
and the preliminary objection should be dismissed.
Deliberation of the Court
8. The Court gave every issue arising from the application a
thorough examination except the matters touching on the
substantive/main case. For clarity, these issues are summarised as
follows: that the plaintiff failed to join the Commonwealth
Secretariat which is a necessary party to the claim and who were the
architects of the employment relationship between the plaintiff and
defendants, which is the main issue of the action.
9. On the issue of competence, it is trite that competence of the
Court is enshrined in articles 9 and 10 of the Supplementary Protocol,
which gave the Court the competence to adjudicate on matters
including the contravention of human rights. Article 10(d) of the
Supplementary Protocol of this Court states:
Access is open to the following ... (d) individuals on application for
relief for violation of their human rights; the submission of application
for which shall:
(i) not be anonymous; nor
(ii) be made whilst the same matter has been instituted before another
international court for adjudication ...
Also, article 4(g) of the revised Treaty states:
The high contracting parties, in pursuit of the objectives stated in
article 3 of this Treaty, solemnly affirm and declare their adherence to
the following principles: recognition, promotion and protection of
human and peoples’ rights in accordance with the provisions of the
African Charter on Human and Peoples’ Rights.
10. The principal question which is posed in the instant case,
relates to whether the facts of the case did constitute a violation of
the human rights of the plaintiff. Are the rights being claimed by the
plaintiff fundamental human rights guaranteed by the African Charter
on Human and Peoples’ Rights and the UN Universal Declaration,
1948? Finally, does the plaintiff possess the right to come directly
before the Court of Justice of ECOWAS?
11. While it can be stated right away that by article 10(d) of the
Protocol of the Court the plaintiff can access the Court, the issue as
to whether the matters complained of are human rights or not should
be left for determination at the trial. However by the combined
African Human Rights Law Reports