Following what appears to be the decision of Cape Verde to defy the ruling a of the ECOWAS court concerning the detention of Venezuelan diplomat and businessman Alex Saab, his lawyers have written to officials in Cape Verde urging them to immediately enforce the court’s ruling.
Femi Falana and Dr. José Manuel Pinto Monteiro who are representing Saab at the ECOWAS Court and in Cape Verde respectively have jointly written to the Prosecutor General of the Republic of Cabo Verde, Dr. Luís José Tavares Landim reminding him of Cape Verde’s obligation to respect the court’s decision as a member of the sub-regional body.
The ECOWAS Court on Monday March 15, 2021 in delivering its final judgement in the case said on the basis that Cape Verde arrested Mr. Saab before an Interpol red notice was issued, the country acted arbitrarily and illegally.
It therefore ruled that Mr. Saab be released and any extradition processes initiated against him to be stopped.
It also awarded a US$200,000 fine against Cape Verde to be paid to Mr. Saab as compensation.
The Cape Verde Supreme Court a day later also indicated in a contrary ruling that Mr. Saab should be extradited to the US to face charges there and that Cape Verde in no way erred in arresting or detaining him.
The Office of the Prosecutor in reaction to the developments told pressmen that “the position of the Prosecutor General’s Office has not changed in relation to the extradition process of Mr. Alex Saab or regarding the acceptance of jurisdiction or the supremacy of the jurisprudence of the ECOWAS Court of Justice over the domestic legal order.”
According to lawyers Falana and Dr. Pinto Monteiro, this position is problematic and as such are urging the island country to comply with the ECOWAS court’s decision.
Cape Verde have continued to insist they are not bound by the decision of the ECOWAS court and that they do not respect its jurisdiction on the matter.
But the joint letter from Alex Saab’s defence team to the Cape Verdean prosecutor general, they reminded him that even though the Prime Minister of Cape Verde did not sign the Supplementary Protocol of Ecowas Court in January 2005, the country is bound by it by virtue of the principles of good faith and consistency.
Estoppel under international law explained
Quoting from Professor Ian Brownlie’s Principles of Public International Law book, the lawyers explained that estoppel is a general principle of international law, resting on principles of good faith and consistency. The essentials of estoppel are:
1. A statement of fact which is clear and unambiguous
2. This statement must be voluntary, unconditional, and authorized; and
3. There must be reliance in good faith upon the statement either to the detriment of the party so relying on the statement or to the advantage of the party making the statement
“The essence of estoppel is the element of conduct which causes the other party, in reliance on such conduct, detrimentally to change its position or to suffer some prejudice… Estoppel may operate to resolve ambiguities and as a principle of equity and justice” they explained.
They indicated that Cape Verde, being the only country that have not signed the Protocol, did not do so because its Prime Minister at the time had to return home due to an emergency.
They expressed concern that Cape Verde for all these years never expressed their disagreement with the Protocol until it came to the case of Alex Saab.
“In the present case, 14 out of 15 Member States signed the Protocol with the only one not signing was the Republic of Cabo Verde, and that only because its Prime Minister at the time had to return home to deal with an emergency.”
“Neither at the time, nor the next day nor at any time in the eleven years since the Protocol was signed has Cabo Verde ever raised any concern about the binding nature of Protocol upon it. Indeed, Cabo Verde actively participated in the discussions leading up to the drafting and ratification of the Protocol,” the letter indicated.
It also added that, “despite machinations to the contrary, Cabo Verde is bound to the Additional Protocol A/SP1/01/05 amending Protocol A/P1/7/91 in regard to the Court of Justice of the Community (“the Protocol”). Under the provisions of Paragraph 2 of Article 11 of the Protocol, the Protocol becomes binding on all of the Member States of the ECOWAS, if 9 Member States sign it.
The lawyers expressed surprise that Cape Verde will claim it does not recognize the country’s jurisdiction in the matter when it made legal presentation in court, filed submission through Dr. Henrique Borges and enjoyed the right of having their case heard.
“We hope that that the media reports referenced earlier are incorrect and that you, your office and Cabo Verde accept the ruling of the Court and will respect the full protection due to Mr. Saab as a result of his immunity and inviolability,” the lawyers concluded.
The defence team of Alex Saab have already indicated that they will appeal the decision of Cape Verde’s supreme court in the bid to stop his extradition which they view of wrongful.
They have also urged the ECOWAS community to call Cape Verde to order as its actions could jeopardize the integrity and respect for the sub-regional court.