On 15 March 2021, the ECOWAS Court of Justice ruled in a binding unanimous decision that the Republic of Cape Verde’s detention of Venezuelan diplomat Alex Nain Saab Moran was illegal, that he should be released immediately, that the extradition process he was undergoing in Cape Verde be terminated and that he be paid $200,000 as moral damages. A clear, concise and precise decision.
On 16 March 2021, in a shocking act of disobedience, the Cape Verde Supreme Court of Justice decided that the extradition of Alex Saab to the United States could proceed. The decision was extraordinary in terms of the slap that it delivered to the faces of both the Economic Community of West African States and to the ECOWAS Court of Justice. It was also clear for all to read that the ruling had been prepared well in advance of the ECOWAS decision of the previous day and so hastily pushed out that several of the paragraphs contained in the written decision remained unedited and unfinished. A clear, concise and precise confirmation of contempt.
The preprepared nature of the Supreme Court’s ruling is further confirmed by the fact that it obviously could not make any comment on the substantive and well-argued nature of the ECOWAS Court’s ruling. The only meaningful point the Supreme Court had to offer was that it de facto accepted the fact that Alex Saab is a lawfully appointed diplomat and therefore deserving of immunity and inviolability that such status carries, however, importantly the court made it clear that the decision to recognise Alex Saab’s immunity is not a judicial matter but a political decision to be taken by the Executive.
Over the past few weeks various government officials led by the venerable President of the Republic of Cape Verde, Jorge Fonseca, Justice Minister Janine Lélis and the Prosecutor General Luis Landim have been running around telling anyone who would listen that “it is for the courts to decide Alex Saab’s fate” (Fonseca), “it is out of my hands” (Lélis) and “the matter is with the Constitutional Court and not the government” (Ladim).
How convenient. With no one in government daring to take the logical and legally correct route of accepting Alex Saab’s status as a lawfully appointed diplomat, it is clear that the cabinet of Prime Minister Ulisses Correia is seeking to break all known backstroke records by swimming as fast as it can from the decision which the Supreme Court has forced upon them.
Sadly, this is not where the gutless reaction of the Cape Verde authorities ends. As noted earlier, the 15 March decision of the ECOWAS Court was a unanimous one which in and of itself is nothing remarkable, however, what does make the decision extremely noteworthy is the fact that the Judge Rapporteur of the panel of judges was Justice Januária Tavares Silva Moreira Costa. Justice Costa is not only a respected and experienced Cape Verde jurist, but she is also that nation’s former Minister of Justice.
This point is very important as the 15 March decision which concluded that Alex Saab’s detention is illegal and that he should be freed immediately is based primarily on violations of domestic Cape Verde Law. With the other two members of the panel being from Nigeria and Ghana (the President of the ECOWAS Court) very obviously all the issues concerning matters of Cape Verde law could only have been dealt with by Justice Costa. Please allow that to sink in.
One of the most senior judges from Cape Verde, who has also held the position of Minister of Justice, has told the world that the arrest, detention (and by implication the extradition process) of Alex Saab are illegal because the manner in which they took place contravened Cape Verde law.
Which makes it impossible to comprehend, when it took Justice Costa and her colleagues just over a month from hearing both parties to ruling that Alex Saab’s arrest was illegal, why after more than a year the entire Cape Verde legal system has failed to recognise violations of its own laws. Is Justice Costa wrong? Is the person deemed qualified enough by the state of Cape Verde to represent it on the ECOWAS region’s most prestigious court not qualified after all to opine on the most basic aspects of Cape Verde law?
Where does this vacillation leave Prime Minister Ulisses Correia? Global condemnation of the arrest of a lawfully appointed diplomat has continued to grow since the contemptuous slap to the face of ECOWAS on 16 March. Cape Verde’s self-promoted façade of democracy and follower of laws and international obligations is disintegrating and the state is rapidly gaining a reputation as being fickle, unreliable and completely susceptible to political pressure.
