Ecowas Protocol On Free Movement Of Persons, Residence, And Establishments: Implications For West African Security (1999-2018)
CHAPTER ONE
INTRODUCTION
1.1 Background to the Study
The treaty establishing the economic community of West African States (ECOWAS) was signed in Lagos, on May 28, 1975. The formation of ECOWAS signifies a high level of multilateral economic integration in the West African sub-region (Okuntola, 2008). The implementation of regional co-operation agenda and the establishment of an economic union of West Africa are seen by the drafters of the treaty as a means of solving the myriad problems of underdevelopment of the sub-region and the broader Africa which include: poverty, poor living standards; weak and unstable economies (Nwoke, 2005).
ECOWAS as a regional economic integration organization emphasizes the fusion of the national markets and the co-ordination of economic policies of member states for larger sub-regional economic advancement through, among other things, the removal of obstacles to the free movement of persons, goods, services and capital (Okuntola, 2008). Article 27 of the community treaty states that:
Citizens of member states shall be regarded as community citizens and accordingly member states undertake to abolish all obstacles to their freedom of movement and residence within the community. Member states shall, by agreement with each other, exempt community citizens from holding visitors visa and residence permits and allow them to work and undertake commercial and industrial activities with their territories (ECOWAS Treaty, 1975; Article 27).
The drive for regional integration cooperation among member states brought about existence of ECOWAS protocol on free movement of persons, residence and establishment which granted ECOWAS citizens the right to free entry and exist within any ECOWAS states for a maximum of 90 days and at the expiration of the ninety (90) day he or she wishes to continue his or her stay, can apply for more days without any valid documents this was done in order to promote regional cooperation and a borderless sub-region
By the provision of the treaty the community aims at creating a regional market of 16 member state for about 300 million consumers (Dokubo, 2014). Hence, the ECOWAS objectives clearly show that the sub-region is determined to speed up socio-economic development of the region as reaction to its shortcomings in global economy. For the members of ECOWAS, the community provides a unique opportunity for them to unite and co-operate and build up their economic power in order to reduce their external dependence and develop the West Africa Sub-region (Okuntola, 2008; Asante, 2000).
The fundamental objective of the organization therefore, is to facilitate co-operation and development in the area of economic activity, most importantly, in the areas of industry, transport, telecommunications, energy, agriculture, natural resources, commerce; monetary and financial matters and socio-cultural matters for the purpose of raising the standard of living of the ECOWAS citizens, increasing and maintaining economic stability in the region as well as, fostering closer relations among its member states, and in turn, contributing to the progress and development of the African continent (ECOWAS Treaty, 1975; Article 2). It is against this backdrop that the ECOWAS Protocol (A/P.1//5/79) on Free Movement of Persons and the Right of Residence and Establishment was drafted in May 29, 1970 as a means of facilitating the achievement of the set objectives of the regional organization. consequently, the first phase of the protocol, the protocol on free movement of persons, goods and services was ratified in 1980 and national committees were set-up in member states to monitor and ensure the implementation of the protocol.
The ECOWAS protocol on the Free Movement of people and goods ensures free mobility of the community citizen i.e. citizen of member states. The protocol on free movement conferred on community citizens the right to enter and reside in the territory of any other member state, provided they have a valid travel document and International health certificate. However, it also give member state the right to neglect admission to any community citizens who were inadmissible under the member state’s own local law. The four supplementary protocols adopted between 1985 and 1990 committed member states, among other things, to: provide valid travel document to their citizens; grant community citizens the right residence for the sole purpose of seeking and carrying out income-earning employment; to ensure accurate treatment for persons being expelled; not to deport community citizens masse; reduce the grounds for individual deportation to reasons of national security; public order or morality; public health or non-fulfillment of an essential condition of residence.
The major features of the four supplementary protocols are;
The 1985 supplementary protocol A/SP.1/7/85 on the code of conduct for the implementation of the protocol on Free Movement of Persons, the Right of Residence and Establishment.
- Obliges member states to provide valid travel documents to their citizens (Article 2(1))
- Establishes additional (to Article 11 of Protocol) requirements for treatment of persons being expelled (Article 4)
- Enumerates protections for illegal immigrants (Articles 5 and 7).
1986 Supplementary Protocol A/SP.1/7/86 on the Second Phase (Right of Residence)
- Requires states to grant to community citizens who are nationals of other member state “the right of residence in its territory for the purpose of seeking and carrying out income earning employment” (Article 2)
- Conditions entitlement to residence (and thus seeking and carrying out of income earning employment) on possession of an ECOWAS
- Residence Card or Permit (Article 5) and harmonization by member states of rules appertaining to the issuance of such cards/permits (Article 9)
- Prohibits expulsion en masse (Article 13) and limits grounds for individual expulsion to national security, public order or morality, public health, non-fulfillment of essential condition of residence (Article 14)
- Stipulates equal treatment with nationals for migrant workers complying with the rules and regulations governing their residence in areas such as security of employment, participation in social and cultural activities, re-employment in certain cases of job loss and training (Article 23)
1989 Supplementary Protocol A/SP.1/6/89 amending and complementing the provisions of Article 7 of the Protocol on Free Movement, Right of residence and Establishment;
- Amends provisions of Article 7 of protocol to confirm obligation on signatories to resolve amicably disputes regarding the interpretation and application of the Protocol (Article 2)
1990 Supplementary Protocol A/SP.2/5/90 on the Implementation of the Third Phase (Right to Establishment);
- Defines the right of establishment emphasizing non-discriminatory treatment of nationals and companies of other member states except as justified by exigencies of public order, security or health (Articles 2-4)
- Forbids the confiscation or expropriation of assets or capital on a discriminatory basis and requires fair and equitable compensation where such confiscation or expropriation (Article 7)
However the establishment of ECOWAS protocol on free movement, residence and establishment in 1979 has not been fully implemented by member states. ECOWAS citizens while migrating still undergo rigorous and harsh scrutiny by member states security agencies and this leads to ineffectiveness of the protocol. Esekumenu (2014), expressed that some issues affecting the application of the protocol are as a result of the political instability in member states, terrorism, trans-border crimes, poverty, underdevelopment, proliferation of small and light weapons among other have prevented the full application of the protocol.
According to Ike (1999), ECOWAS commissioner for trade stated that ECOWAS vision of a borderless region, integrating and creating a single currency union which can be achieved through regional cooperation and integration among member states. He however stated that the inter-state boundaries are still barriers to free movement, noting that ECOWAS citizens go through stress and pain while crossing borders, and even though visa entry has been abolished travelers are still harassed illegally by customs and police force which has led to various economic loss.
While States still faces challenges in the full implementation of the protocol on free movement in ECOWAS, non-state actors engaged in illicit activities have been exploiting the protocol in pursue of their interest. This is a major challenge that remains unaddressed in the literature on regional integration in West Africa. Therefore, this study to investigate how the mechanisms punt in place by ECOWAS member States to promote free movement impacts on regional security in West Africa.
1.2 Statement of the Problem
There are key issues regarding the operationalization of the protocol that member states agreed and used as starting point they include absence of adequate mechanisms to control infiltration of criminals; lack of harmonization of national laws and policies on migration as well as inadequate infrastructure to facilitate realization of borderless West Africa.
It has been realized that ECOWAS has not instituted adequate mechanisms for controlling the entry of illegal immigrants into member states. This is due to the fact that many people in the sub-region do not possess any valid travelling documents including birth certificate. This has been exploited by persons/non-state actors who carry out nefarious activities such as internet fraud, money laundering, human trafficking, etc. (Castle, 2014). There are also concerns that the privileges enshrined in the protocol have been abused by some citizens of the sub-region. Some of the abuses include smuggling of goods and illicit trade in narcotics. These crimes and acts of economic saboteur have led to expression of resentment among officials and the general public in the destination countries. Ghana and Nigeria for instance, have taken some protective measure. Ghana established a Border Patrol Unit within the Ghana Immigration Service to police her borders, whereas Nigeria decided to close her borders to stem off economic and security threats, at the time being.
The sub-regional body has also failed to ensure harmonization of national laws pertaining to migration before the protocol became effective. This has adversely affected the smooth implementation of the protocol on free movement of person. In enacting the protocol, much consideration was not given to the varying and diversities in social, political security and economic background of the member states, hence revocation of the protocol and expulsion of non-nationals in difficult economic times by some member states.
Another issue is that inadequate infrastructural facilities in the sub-region do not promote effective movement. At the time the protocol coming into force, the road networks were restricted to national borders and little efforts were placed on expanding road and rail networks beyond national borders to facilitate effective flow of human traffic. Perhaps, adequate preparations were not made to facilitate smooth and effective implementation of the protocol for the benefit of the citizens.
It is also instructive to note that the member-states are at different level of economic development and this has impeded realisation of free movement of persons within the sub-region. In view of this, the direction of movement is toward certain nodes of economic development and thereby putting undue security risk and stress on those economies. For instance Nigeria, Ivory Coast, Senegal and Ghana (lately) have been at the receiving ends of these population movements. Emphasis should have been placed on acceleration of economic growth and poverty reduction in the various countries in order to avoid citizens of some countries becoming economic and security burden on a few member states.
The language barriers between the sub-region, which has to do with the Anglophone and the francophone countries and the politics of vested interest by the colonial masters have not helped in the full implementation of the protocol with the ECOWAS sub-region.
Hence, the crux of the study therefore, is to critically assess the ECOWAS protocol on free movement of persons, residence and establishment vis-à-vis implications for West Africa Security between 1999 to 2018.
1.3 Research Questions
For the purpose of this study, the following research questions will be posed:
- To what extent do ECOWAS member states cooperate in implementing the protocol on free movement, residence and establishment matter?
- What is the relationship between ECOWAS protocol on free movement of persons an trans-border security?
iii. What are the factors and challenges militating against the effective implementation of the ECOWAS protocol on free movement of persons?
- What strategies has ECOWAS kept in place to mitigate the obstacle hindering the full implementation of the Articles as enshrined in the ECOWAS protocol?
1.4 Objective of the Study
The main objective of this study is to examine the ECOWAS protocol on free movement of persons, residence and establishments and its implications for West African Security.
The subsidiary objectives are:
- To examine the extent of ECOWAS member states cooperation in implementing the protocol on free movement, residence and establishment matters objectives.
- To analyse and interrogate the relationship between ECOWAS protocol on free movement of persons and trans-border security.
iii. To identify the factors and challenges militating against the effective implementation of the ECOWAS protocol on free movement of persons.
- To examine the major strategies kept in place by ECOWAS to mitigate the obstacles hindering the full implementation of the Articles as enshrined in the ECOWAS protocol.
1.5 Significance of the Study
The significance of the study is of theoretical and practical relevance. The theoretical relevance of the study is that it examines the implications of cross border crimes in West African member State as it relate to the national security and external relations. Furthermore, it will provide the framework mechanism for international relations scholars and students to understand the application of international relations theories such as integration and Neo Functionalism theory as it has been used in this study, to situation in the global community. The study will underscore the relevance for the re-organisation of the protocol to fill up the lapses discovered by the research. By so doing, the study enriches the existing stock of literature or expands the frontiers of knowledge through it findings, therefore serves as a source of data and material for the purpose of further researcher on the areas outside the scope of this study.
Practically, the study will underscore the relevance of ECOWAS protocol on free movement, residence and establishment, by enabling both students and government parastatals in charge of relations among countries to see the practicality of the protocol. It will also be of immense benefits to Nigerian government, security advisers defence advisers, economic advisers, policy makers, regional institution like AU, ECOWAS, etc. The study is also timely and topical.
1.6 Scope and Limitation of the Study
The study covers the period between 1999 to 2018. The focus of the study is on border security and ECOWAS protocol on free movement of persons. It interrogates the relationship between boarder security and ECOWAS protocol on free movement of persons in West Africa. The ideal of the protocol on free movement persons has been characterized by several problems which this work also attempts to investigate.
This work centers on ECOWAS as a regional integrative instrument within the West African sub-region. Attempt is made to examine the role of ECOWAS in bringing about economic growth and development in West Africa with a perspective to identifying its achievements, challenges, and prospects.
This work is limited by various factors ranging from time, space/locations and methodological challenges. A research of this nature requires the researcher to travel along and across other West African borders to experience and get first hand data with regards to the research topic. The costs of going on such voyage vis-à-vis the limited time at the disposal of the researcher constitute a major limitation to this work, but in no way affect this substance of the work.
1.7 Clarification of Term
ECOWAS Protocol: In May 1979, ECOWAS States adopted their first protocol relating to the Free Movement of persons, Residence and establishment. It stipulated the right of ECOWAS citizens to enter, reside and establish economic activities in the territory of other member states and offers a three step roadmap of five years each to achieve freedom of movement of persons after fifteen years. The first phase regards the right of visa free entry, phase two dealt with the right of residency and phase three concerns the right of establishment in another member state (ECOWAS, 2005).
West Africa: West Africa is the westernmost region of Africa. The United Nations define Western Africa as the 16 countries of Benin, Burkina Faso, Cape Verde, the Gambia, Ghana Guinea, Guinea Bissau, Ivory Coast, Liberia, Mali, Mauritania, the Niger, Nigeria, Senegal Sierra Leone and Togo, as well as the United Kingdom Overseas Territory of Saint Helena, Ascension and Tristan da Cunha. The population of West Africa is estimated at about 381,981,000 as of 2017 of which 189, 672,000 are female and 192,309,000 male (Wikipedia, 2019).
Security: Security has to do with the process connected with assuaging any kind of threat to people and their precious values. This is why Barry Buzan asserts that security is about freedom from threat and ability of states to maintain independent identity and their functional integrity against forces of change, which they see as hostile while its bottom line is survival (Bodunde, et al, 2014) from the foregoing, security is generally agreed to be about feeling of being safe from harm, fear, anxiety, oppression, danger, poverty, defence protection and preservation of care values and threat to those values.
William (2008) equally submits that security is most commonly associated with the alleviation of threats to cherish values, especially those threats which threaten the survival of a particular reference object.
Free Movement of Person: Freedom of movement, mobility rights or the right to travel is a human rights concept encompassing the right of individuals to travel from place to place within a territory of a country, and to leave the country and return to it. The right includes not only visiting places, but changing the place where the individual resides or work. Such a right is provided in the constitutions of numerous states, and in document reflecting norms of international law and regional and sub-regional treaties. For examples, Article 13 of the Universal Declaration of Human rights assert that:
– A citizen has the right to leave any country, including his or her own, and to return to his or her country at any time.
In the same vain Article 2(1) of ECOWAS Protocol assert that:
Member states are under legal obligation to provide valid travel documents to their citizen (Anadi, 2005).
Integration: Integration has a multi-dimensional perspective. Two representative perceptions are presented. Ojo et al (1985) perceived integration as the situation whereby two or more individuals or groups come in contact with each other to related primarily for cooperation, supportive of other positive reasons Doherty and Pfalzgraff (Jnr.) (1997) referred to integration as a process whereby political actors in several distinct national setting are persuaded to shift their loyalties, expectations and political activities towards a new centre whose instructions demand jurisdiction over the pre-existing national states.
Development: Development is a broad concept that entails social, economic, political and human development. Human development constitutes the foundation on which the first three concepts are based. According to Burkey (1993:38), economic and political development must translate into social development. As a broad concept, development has been extensively explored with a view to realize economic growth and social development. However, the emphasis shifted from industrial and economic development as the determining factors in societal transformation. Economic growth may bring material gain to the people, but development is much about enrichment of the lives of all the people in the society (Edwards 1993:80). The shift moved from holistic theorization of development towards local participation and empowerment (Mohan and Stokke 2000:247). The underlying principle of such a phenomenon is the people’s control of the processes. Todaro and Smith (2006:16) also agree with Edward that if a development strategy results in robust economic growth and political stability without a significant change in the quality of life of the masses of people, something is wrong. High growth performance without people participation is clearly economic growth without development.
ECOWAS: The Economic community of West African States (ECOWAS) is a regional organization of 15 West African Countries established on 28 May, 1975 its main goal is the promotion of the economic integration among its members. Indeed, ECOWAS is one of the five regional pillars of the African Economic Community (AEC), ECOWAS has three official languages: English, French, and Portuguese (International Democracy Watch, 2019).
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