Ismaïla Konaté: Critiques ECOWAS Court's Togo Constitutional Reform Ruling

• Me Mamadou Ismaïla Konaté, a former Malian Justice Minister, critically analyzed the ECOWAS Court's ruling on Togo's 2024 constitutional reform.
• He identified procedural flaws, including a "distortion" between the ruling's grounds and operative part, and specific unanswered applicant requests.
• Konaté argued the Court failed to fully utilize its "power of injunction," which could have led to more decisive directives for Togolese authorities.
• He suggested the Court could have ordered measures such as ceasing violations, re-examining the constitutional arrangement, and ensuring compliance.
• Konaté advocates for a new referral to the ECOWAS Court to rectify the current ruling and prevent further obstruction from the Togolese state.

He asserted that while the judgment itself might be lucid, its operative part lacked the necessary force to be truly conclusive.

Me Mamadou Ismaïla Konaté, a distinguished legal professional with affiliations to both the Malian and Parisian bar associations and a former Minister of Justice and Keeper of the Seals for Mali, recently offered a sharp critique of a significant regional legal decision. Speaking at a public conference organized by the Cadre National de Concertation pour le Changement (CNCC) in Lomé, his focus was the ECOWAS Court of Justice's ruling concerning the 2024 Togolese constitutional reform. From the outset, Konaté declared his intention to provide an unvarnished, technical analysis, specifically highlighting the procedural limitations of the judgment.

His initial observations immediately pinpointed a fundamental flaw within the decision. He identified a "distorsion entre le motif et le dispositif," indicating a disconnect between the stated reasons for the judgment and its actual operative directives. Furthermore, Konaté noted that several precise demands put forth by the applicants remained either entirely unaddressed or incompletely resolved by the Court. This omission, he argued, constituted a refusal to respond to specific requests, a significant procedural weakness.

The core of Me Mamadou Ismaïla Konaté's avis juridique centered on the perceived indecisiveness of the ECOWAS Court's ruling, despite its apparent clarity. He asserted that while the judgment itself might be lucid, its operative part lacked the necessary force to be truly conclusive. This critical assessment, forming a key part of his analyse arrêt Cour de Justice CEDEAO Togo, stems from his belief that the Court did not fully leverage the authority vested in it. According to Konaté, the ECOWAS protocol explicitly grants the Court a "pouvoir d'injonction" – a power of injunction – which, if exercised, could have compelled a more definitive outcome.

This unutilized power, Konaté argued, would have enabled the Court to communicate "très clairement et de façon décisive" with the Togolese authorities, thereby addressing the faiblesses décision CEDEAO Togo. He outlined a range of concrete measures the Court could have mandated. These included ordering an end to the effects of any violation, requiring a re-examination of the contentious constitutional arrangement, and compelling the adoption of necessary compliance measures. Additionally, the Court could have insisted on an inclusive national consultation process, demanded accountability reports on actions taken, and even ensured safeguards against the circumvention of presidential term limits and alternation through artificial power transfers.

Given these significant procedural and substantive shortcomings, Me Konaté advocates for a "nouvelle saisine Cour CEDEAO" to address the existing judgment's deficiencies. He firmly believes that a fresh referral to the Court is essential to rectify the current ruling. The objective of such a new procedure would be to formally acknowledge the discord between the judgment's grounds and its operative part, to provide comprehensive responses to the previously unanswered requests, and crucially, to ensure that the operative provisions become unequivocally decisive. This approach, he contends, would eliminate any opportunity for the Togolese state, which he characterizes as acting in "totale mauvaise foi," to raise further objections or circumvent the ruling.

This Ismaïla Konaté critique arrêt CEDEAO Togo constitutionnel underscores the ongoing legal and political uncertainties surrounding the 2024 constitutional reform. Konaté issued a stark warning regarding the practical implementation of the current ruling. He cautioned that attempting to enforce the existing judgment would likely encounter "énormes obstacles" from the Togolese state, highlighting the potential for significant resistance and further complications. His analysis suggests that without a more robust and decisive judicial intervention, the path forward for constitutional governance in Togo remains fraught with challenges.

Lawyers and compliance officers advising on Togolese constitutional matters or regional human rights should be aware that the ECOWAS Court's decision on the 2024 constitutional reform is viewed as procedurally weak and indecisive, potentially leading to further legal challenges. This indicates ongoing legal and political uncertainty in Togo and highlights a critical perspective on the effectiveness of ECOWAS Court judgments.

Source: Analysis based on expert commentary.