The Preliminary Reference Procedure of the ECOWAS Community Court of Justice: Why Would the Courts Not Play?

In what can generally be described as mimicry of the design and functioning of the preliminary reference procedure in the European Union legal framework, leaders of the Economic Community of West African States (ECOWAS) introduced the preliminary reference procedure into the ECOWAS legal framework in a 2015 revision of the Protocol of the ECOWAS Court. However, unlike the European equivalent which has been hailed as a tremendous success, the procedure has been a monumental failure in the ECOWAS framework, as not a single reference has emanated from any national court to the ECOWAS Court in the 17 years since the introduction of the procedure. Adopting a doctrinal research approach, this article explores why national courts of ECOWAS Member States are not likely to cooperate with the ECOWAS Court to successfully operationalise the procedure. It is argued that structural challenges as well as the absence of the enabling environment create nearly insurmountable obstacles to the functioning of the procedure in the ECOWAS framework.