Defence lawyers for Alex Saab in the controversial diplomatic row involving Cape Verde, Venezuela and the US have written to Cape Verde’s state prosecutor, insisting that the recent ECOWAS Court judgement that ordered Mr. Saab’s release must be complied with.
The Office of the Prosecutor General, in a statement to the EFE agency after the ECOWAS Court’s judgement indicated that Cape Verde’s stance on the extradition of Alex Saab has not changed despite the court ruling.
“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,” the office said in a response to a question from the news agency.
But according to Dr. José Manuel Pinto Monteiro and Femi Falana, the posture of the office is wrong and disturbing.
The ECOWAS Court on March 15, 2021, despite disagreement with some averments made by Mr. Saab’s lawyers, ruled that Cape Verde wrongfully arrested and detained him.
The court said the island country’s decision was arbitrary as there was no Interpol red alert for his arrest on the day he was arrested at the Sal International Airport enroute to Iran on a diplomatic mission for Venezuela.
It therefore ordered Alex Saab’s release and ordered Cape Verde to cease all processes to extradite him to the US, where he faces allegations of corruption.
Cape Verde was also ordered to pay US$ 200,000 to Alex Saab as compensation.
The Supreme Court of Cape Verde a day later delivered a counter judgement ordering the extradition of Alex Saab with Cape Verde officials including the court claiming that the ECOWAS court’s decision cannot be binding on them.
But Dr. José Manuel Pinto Monteiro and Femi Falana in a letter to the Dr. Luís José Tavares Landim, the Prosecutor General of Cape Verde reiterated their point that Cape Verde, as a member of the ECOWAS must respect the ruling of the sub-regional court and duly carry-out its orders.
In countering the claims made by the office of the prosecutor general, the two lawyers said it was surprising that Cape Verde will claim that the ECOWAS court does not have jurisdiction in the Alex Saab case.
They said by participating fully in the legal processes, Cape Verde implicitly demonstrated their belief in the powers of the court in the matter.
“Cabo Verde recognised the jurisdiction of the Court by fully participating in the process by the presence and conduct of its legal representative, Dr. Henrique Borges….Cabo Verde voluntarily exercised its right to participate in the process, filed submissions and was heard by the Court. It is important to reiterate that the objections of Cabo Verde were heard and rejected by the Court. This approach is an element of the customary international law called “forum prorogatum” and is enshrined, for instance, in Article 36 of the Statute of the International Court of Justice,” they noted.
They added that even though the Prime Minister of Cape Verde did not sign the Supplementary Protocol of the ECOWAS Court in 2005, it actively participated in the ratification of the protocol.
They said but for an emergency the Prime Minister said he had to attend to back in his country at that time, Cape Verde would have signed the document.
14 out of 15 ECOWAS countries have signed the Supplementary Protocol.
“Even though the Prime Minister of Cape Verde did not sign the Supplementary Protocol of Ecowas Court in January 2005, the Republic of Cape Verde is bound by the provisions of the instrument on grounds of estoppel under international law…. 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 noted.
Estoppel under international law explained
Quote 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.
Ruling binding on Cape Verde
To further make their case on why the ruling was binding on Cape Verde, Falana and Dr. Pinto Monteiro said Cape Verde all these years had not registered their disagreement with the Protocol so it is curious that in the case of Alex Saab, Cape Verde is arguing that it had not appended signature to the Protocol.
“It appears that the first and to date only occasion when Cabo Verde has felt the need to challenge the binding nature of the Protocol is since it decided to conspire in the illegal arrest of Special Envoy Saab.”
The lawyers stressed that Cape Verde has a number of judges in the ECOWAS court and therefore it cannot deny that it has no relationship with the court.
“Currently, former Minister of Justice of Cabo Verde, the Honorable Justice Januária Tavares Silva Moreira Costa (“Justice Costa”) was one of the 3 members of the panel of the Court which deliberated and ruled on the matter between Cabo Verde and Mr. Alex Saab and even had the honor of reading the final judgement on 15 March 2021. Before Justice Costa, Justice Benfeito Mosso Ramos (“Justice Ramos”) was a panelist and Vice-president of the Court 2009 to 2014. Justice Ramos we understand serves as Advisory Judge of the Cabo Verdean Supreme Court of Justice. Justice Ramos is a member of the Judicial Council of the Court – a department which is responsible for the recruitment and discipline of the judges of the Court – and before him Justice Fatima Coronel had fulfilled the same role,” they highlighted.
They urged Cape Verde to reconsider its position and respect the ECOWAS Court’s order.
Meanwhile the legal team of Alex Saab have up to March 31, 2021 to appeal the judgement of the Cape Verde Supreme Court, an option that two lawyers have indicated that they will take.
There are also ongoing processes to challenge Saab’s arrest and detention in the US and at the African Union.