Protecting intellectual property through a human rights approach: jurisprudential missteps and missed opportunities in the ECOWAS Court’s decision in Solomon Ekolama v Nigeria

2.1 Facts and legal argument of the parties

The case was initiated by Mr Solomon Ekolama, a registered engineer, and Far-Reaching Technologies Ltd, a company of which Mr Ekolama was the lead software engineer. According to the applicants, Mr Ekolama developed a sophisticated security software named the ‘Nigerian Community Safety and Security Software Infrastructure’, or simply the ‘Nigeria Secure Portal’ (NSP). The function of the NSP was to enable the swift reporting of criminal activities to security services to elicit a prompt response. The software was legally registered in the name of Mr Ekolama, for which he obtained certificate LW1785 from the Nigerian Copyright Commission on 7 September 2016. Following the NSP’s creation and registration, Mr Ekolama partnered with Far-Reaching Technologies Ltd for its advanced development and real-world application. With the view to seeking a partnership with the Nigerian government for further development of the software and its roll-out for national security and law enforcement purposes, the applicants presented a proposal to the National Information Technology Development Agency (NITDA), an agency of Nigeria’s Ministry of Communications. This led to a series of meetings and presentations during which the applicants disclosed the technical details and operational framework of the NSP. The applicants had similar engagements with two agencies of Nigeria’s Ministry of Science and Technology, namely, the National Board for Technology Incubation (NBTI) and the National Office for Technology Acquisition and Promotion (NOTAP). Finally, a proposal was also submitted to the office of the President.

Subsequent to these interactions, the applicants discovered a new application available on the Google Play Store under the name ‘Nigeria Internal Security and Public Safety Alert System (NISPAS)’. Upon investigation, they concluded that NISPAS, owned and operated by Nigeria’s Ministry of Interior, was a direct copy of their software, the NSP, as it had replicated the core concept, features and functionality of the NSP. Believing that their intellectual property had been stolen and wrongfully appropriated by the Nigerian government, the applicants initiated proceedings before the ECOWAS Court, claiming a violation of their fundamental rights.

The applicants argued that the respondent, acting through its agents, had committed ‘theft’ of their intellectual property, thereby infringing upon their intellectual property rights. According to them, the respondent’s action of copying their software and launching it as its own constituted a violation of their right to property, as guaranteed by article 14 of the African Charter and, also, a violation of article 26 of the International Covenant on Civil and Political Rights 1966 (ICCPR), which guarantees equality before the law. The applicants also relied upon international intellectual property law citing the Berne Convention for the Protection of Literary and Artistic Works 1967 and the WIPO Copyright Treaty 1996 which Nigeria has ratified.

Consequently, they sought a declaration of the violation of their right to property under article 14 of the African Charter, an order compelling the respondent to hand over the NISPAS application to them, and an order prohibiting the respondent from further developing a similar software. They also requested nearly $2 million as compensation for the costs incurred in developing the NSP and for the infringement of their intellectual property rights in the NSP.

The respondent, the Federal Republic of Nigeria, denied all allegations of wrongdoing. It countered that its NISPSAS application was not a copy of the applicants’ software. It had been developed independently and that any similarities with the Applicants’ software were purely coincidental. The respondent also argued that it never entered into a contractual relationship with the applicants to develop any software, and that whatever work they did, including any presentations or demonstrations to government agencies, was done of their own volition. In a direct challenge to the Court’s authority, the respondent further contended that a claim of intellectual property theft was a matter for Nigeria’s national courts, not an international human rights court. The respondent characterised the application as frivolous and an attempt to distract the government, and urged the Court to dismiss the case in its entirety.

2.2 The findings and conclusions of the Court

The Court structured its decision around the core judicial inquiries of jurisdiction, admissibility and merits. Regarding jurisdiction, the Court affirmed its competence to hear claims concerning human rights violations under article 14 of the African Charter and article 26 of ICCPR. However, it drew a firm line regarding the other legal instruments cited by the applicants. In particular, the Court declared that it lacked jurisdiction over claims based on the Berne Convention and the WIPO Copyright Treaty. Thus, it underscored that its subject-matter jurisdiction was strictly defined by its foundational protocols and did not extend to the broad corpus of international law.

Specifically, the Court stated:6

The Berne Convention (supra) and its ancillary WIPO Treaty do not form part of the texts that guide its adjudication within its competence ... It is needless to say that the Court’s competence is derived by law; therefore, it cannot suo motu create a new arm of competence regardless of how exhaustively a claimant has pleaded his cause ... For emphasis, the Court holds that the Berne Convention and its ancillary WIPO Treaty are completely outside its competence and declares that it lacks the competence to adjudicate the claim in this regard.

On the question of admissibility, the Court found that the application was admissible with respect to the human rights claims of the applicants founded on the African Charter and ICCPR. It confirmed that the applicants had met the procedural requirements under article 10(d) of the Court’s Protocol by properly identifying themselves and demonstrating that the case was not pending before another international court.7

In its analysis of the merits, the Court examined and ultimately dismissed the claims of the applicants. Concerning the meaning of property under article 14 of the African Charter, the Court broadly defined it to include tangible assets, such as land, and also intangible assets such as shares, claims to payment of money, and intellectual property rights. Therefore, it acknowledged that the first applicant’s registered copyright in the NSP was indeed property within the meaning of article 14 of the African Charter. However, on the issue of whether the property rights of the applicants had been violated, the Court made two conceptual determinations. First, it drew a distinction between a human rights violation and a criminal act, stating that it had no competence to determine the latter. Second, it reasoned that a violation of the right to property under article 14 of the African Charter must be a deprivation or dispossession of an applicant’s property by the respondent state.

Based on the foregoing, the Court concluded that the applicants’ claim that the respondent had ‘stolen’ or engaged in ‘theft’ of the intellectual property in their software was ‘not a violation of the right to property’.8 Rather, it was a claim of a ‘crime’ or criminal conduct outside of its human rights competence under article 9(4) of the Court Protocol. The Court underscored that it is ‘civil in character and does not have a mandate to adjudicate criminal matters’.9 Yet, the facts and evidence the applicants had placed before it ‘establish[ed] that the claim [was] a crime and not a violation as envisaged under article 14 of the African Charter’.10 Accordingly, the Court concluded that the applicants’ ‘claim of theft’ of their intellectual property11 must be dismissed because it ‘cannot determine a claim of theft clothed in a violation [of] human rights’.12

The Court went further in its analysis to suggest that the respondent’s alleged copying and adaptation of the NSP as the NISPSAS (which is what the applicants described as stealing or theft) could not constitute a violation of the applicants’ right to property under article 14 of the African Charter. According to the Court, a violation of the right to property under article 14 of the African Charter is ‘concerned with a deprivation of property occasioned by the respondent or its agent or subjecting a person’s possession to control’.13 Essentially, the ‘owner must be divested of his proprietary rights for the act to qualify as a violation under article 14 of the Charter’.14 Based on this logic, the Court stated that the ‘allegations of the respondent copying the web application fall short of divesting the said applicants of their proprietary interest’.15 Further, the fact that the applicants still have ‘ownership of their web creation’ under Nigerian law ‘flaws the argument of a deprivation of ownership’.16 Thus, ultimately, the Court concluded that since the proprietary interest in the NSP was still vested in the first applicant, it could not be said that the Nigerian government had breached article 14 of the African Charter.

Finally, the Court dismissed the applicants’ claim under article 26 of ICCPR. The Court concluded that the claim of discrimination was frivolous, as the applicants did not present any facts or evidence to demonstrate how they were discriminated against or treated unequally compared to others in a similar situation.17

In summary, the Court declared that it had jurisdiction over the application to the extent that it was based on alleged violations of the African Charter and ICCPR, and not on the Berne Convention or the WIPO Treaty. It also found the application to be admissible under the requirements of article 10(d) of its Protocol (as amended) but proceeded to dismiss all the applicants’ claims on the merits.

3.1 A critique of the Court’s jurisdictional analysis

The starting point for any critique of the Ekolama judgment must be the Court’s approach to its own jurisdiction. An international court must always satisfy itself of its competence to hear a matter.18 This is so crucial that the Court must do so on its own motion even if no party has raised a challenge to its jurisdiction.19 That said, the ECOWAS Court’s decision that it had no jurisdiction to consider the applicants’ claims rooted in the Berne Convention and the WIPO Copyright Treaty reveals a fundamental misunderstanding of its status as an international court, albeit with limited reach, and the role it has within the broader corpus of public international law. The Court’s reasoning, as laid out in paragraphs 43 to 46 of the judgment, is built on a simple, yet faulty syllogism. It begins by correctly noting that its subject-matter jurisdiction is guided by article 9(4) of its Protocol,20 which confers upon it the power to determine cases of human rights violations that occur in ECOWAS member states. It then proceeds to create an exclusive, self-defined list of the human rights treaties that it considers to be within its purview. In paragraph 44, the Court enumerates the fundamental human rights treaties of the United Nations (UN) and the regional human rights treaty (that is, the African Charter on Human and Peoples’ Rights) as the texts that inform its human rights jurisdiction. Having drawn this restrictive circle, its conclusion becomes inevitable when it states with definitive finality:21

In the brief narration of texts that inform the subject-matter jurisdiction of the Court, the Berne Convention (supra) and its ancillary WIPO Treaty do not form part of the texts that guide its adjudication within its competence under article 9 of the Protocol of the Court as amended. It is needless to say that the Court’s competence is derived by law; therefore, it cannot suo motu create a new arm of competence regardless of how exhaustively a claimant has pleaded his cause.

This conclusion, which the Court presents as a straightforward interpretation and application of its founding texts, has significant shortcomings. First, it runs counter to the approach the Court has adopted in past cases on the scope of its subject-matter jurisdiction under article 9(4) of the Protocol of the Court. The Court has maintained that its human rights jurisdiction is open-ended, encompassing any relevant international human rights instrument or source of law binding on the respondent state, since article 9(4) of the Protocol does not tie the Court’s mandate to any particular human rights instrument.22 Thus, in a number of cases, the Court has laid down a general test for determining whether an instrument qualifies as a binding source of human rights obligations under article 9(4) of the Court’s Protocol, rather than making a list that may constrain it in future cases.23 In Ekolama, the Court’s approach of adopting an exclusive, self-defined list of human rights instruments falling within its subject matter jurisdiction was the first of the analytical flaws or jurisprudential missteps in the judgment.

Closely tied to, or perhaps flowing from, the above was the Court’s failure to appreciate the crucial distinction between the legal texts or sources that directly bear on claims within its subject matter jurisdiction and others which may serve as interpretative aids. The Court itself acknowledged, in paragraph 43 of the judgment, that article 20 of its Protocol (as amended) directs it to apply ‘as necessary, the body of laws as contained in article 38 of the Statute of the International Court of Justice’.24 Article 38(1) of the International Court of Justice (ICJ) Statute, of course, is the authoritative enumeration of the sources of international law, including ‘international conventions, whether general or particular, establishing rules expressly recognised by the contesting states’.25 Nigeria, the respondent state in Ekolama, is a party to both the Berne Convention and the WIPO Copyright Treaty.26 These treaties, therefore, constitute binding international law for Nigeria and establish rules that were directly relevant to the subject matter of the dispute - the protection of a literary and artistic work in the form of a software programme.27

As the pleading of the applicants show, the ECOWAS Court was not being asked to act as a specialised intellectual property tribunal, directly enforcing the provisions of the Berne Convention as a primary cause of action.28 Rather, it was being asked to interpret and apply the human rights to property, as guaranteed by article 14 of the African Charter, in light of the clear and specific rules of international law to which Nigeria has subscribed. The Berne Convention and the WIPO Treaty provide the essential context for understanding what constitutes ‘property’ in the intellectual sphere and what kind of protections such property is afforded under international law.29

As Geiger has argued, intellectual property rights are not created in a vacuum; they are products of a detailed international legal framework that human rights courts cannot simply ignore.30 The European Court of Human Rights (European Court), for instance, has consistently held that intellectual property, including patents, falls within the ambit of article 1 of Protocol 1 to the European Convention on Human Rights (European Convention), which protects individual’s ‘possessions’ or property. Accordingly, in Balan v Moldova,31 a photographer alleged that the Moldovan government had used one of his photographs on the nation’s official identity cards without his permission or compensation. The European Court found that the copyright in the photograph was a possession and that the government’s unauthorised use constituted an interference with the applicant’s peaceful enjoyment of that possession, leading to a finding of a violation of article 1 of Protocol 1.32

In protecting intellectual property rights under article 1 of Protocol 1 to the European Convention, the European Court has not shied away from referencing the specific intellectual property conventions that define the content and scope of these rights.33 The European Court’s landmark decision in Anheuser-Busch Inc v Portugal34 is instructive here. While the Court ultimately found no violation, it explicitly recognised that a trademark could constitute a possession and engaged in a detailed analysis that implicitly drew upon the principles of trademark law.35 The ECOWAS Court’s declination to consider the Berne Convention or the WIPO Treaty as interpretative aids stands in stark contrast to this more sophisticated and integrated approach. That decision, which ignored the broader legal context, weakened the Court’s methodology and prevented a more holistic interpretation and progressive application of the law.

Ultimately, the Court’s apparent compartmentalisation of legal regimes in its jurisdictional analysis showed a deficient appreciation of the principle of systemic integration, codified in article 31(3)(c) of the Vienna Convention on the Law of Treaties to guide treaty interpretation.36 As an analytical tool, the concept of systemic integration holds that any rule or branch of international law exists in a systemic relationship with the broader corpus of international law. As such, the interpretation and application of any rule, treaty provision or other legal instrument must take into account the normative environment in which it is situated.37

The African Charter, like any human rights treaty, does not operate in a hermetically sealed universe. It must be read as part of the broader fabric of international law. Therefore, the right to property in article 14 of the Charter cannot be defined in vacuo. Its meaning and scope, particularly when applied to intangible assets such as copyright, should necessarily be informed by other relevant international legal instruments.38 By declining to consider the Berne Convention or the WIPO Treaty, the Court was not merely declining jurisdiction; it was declining to properly interpret the very human rights instrument that it admitted was within its competence. As Helfer argues, human rights and intellectual property law are increasingly intertwined, and to adjudicate one without reference to the other is to ignore the reality of modern legal practice.39

In conclusion, the Court’s jurisdictional analysis in Ekolama created a paradox. It accepted jurisdiction over a claim for violation of the right to property but refrained from considering the very international legal instruments that define the specific property right in question. This dogmatic approach did a disservice to the applicants’ case and to the development of a coherent jurisprudence on the intersection of international human rights and intellectual property. The Court should have found that while it may not have jurisdiction over the Berne Convention or the WIPO Treaty as stand-alone instruments, it was not only permitted but obligated to use them as essential interpretative tools to give content and meaning to the right to property under the African Charter. Its failure to do so was a fundamental, analytical misstep that led the Court onto a path of insularity at a moment that called for integration. By limiting itself to a defined list of legal texts contrary to its own precedents, the Court failed to avail itself of the instruments that could have illuminated the specialised nature of the matter raised in the application.

3.2 Analysis of the Court’s decision on the right to property

The African Charter provides that ‘[t]he right to property shall be guaranteed. It may only be encroached upon in the interest of public need or in the general interest of the community and in accordance with the provisions of appropriate laws.’40 In previous cases, including Dexter Oil Ltd v Liberia41 and Algom Resources Ltd v Sierra Leone,42 the ECOWAS Court - relying on property rights jurisprudence of the European Court - had given article 14 of the African Charter a broad interpretation that implied the inclusion of intellectual property within its scope. In Ekolama, the Court was squarely faced with the issue. The Court started off by correctly outlining the tripartite structure of property rights protection, familiar from the jurisprudence of the European Court: the right to peaceful enjoyment of property, protection against deprivation of property, and the control of use.43 It also rightly acknowledged that property includes intangible assets such as intellectual property rights.44 Yet, having set out this sound legal framework, the Court inexplicably failed to apply it to the facts. Instead, it engaged in a rather unusual semantic analysis that misinterpreted the gist of the applicants’ claim. The Court delivered itself as follows:45

In this instance, therefore, the Court is concerned that the applicants are claiming theft of their proprietary interest, not a violation of the right to property ... This Court is civil in character and does not have a mandate to adjudicate on criminal matters. Hence, in the instance of a claim of theft, which is a crime, the Court cannot develop competence outside that which the law has bestowed on it.

The Court’s determination here rested on an invented distinction between the ‘theft’ of property and a violation of the right to property. This distinction, which has no sustainable basis in international law (including human rights law) or in its own precedents, allowed the Court to sidestep the substantive claim and effectively undermine the protection in article 14 of the African Charter. Going by the rules of state responsibility, a violation, breach or infringement of a fundamental human right can be said to have occurred when a conduct (whether an act or omission) attributable to a state is not in conformity with the requirements of an international human rights obligation of the state and, as a result, deprives an individual of the protection guaranteed by that obligation, in whole or in part.46 Therefore, potentially, any conduct attributable to a state, whether classified as criminal or civil under domestic law, may constitute a violation of the state’s human rights obligation so long as it does not conform to the requirements of that obligation. This explains why the International Law Commission (ILC) has noted that, as far as the responsibility of a state is concerned, no ‘distinction exist[s] between the ‘civil’ and ‘criminal’ responsibility as is the case in internal legal systems’.47

In fact, in a previous case, Registered Trustees of Gan Allah Fulani Development Association v Nigeria,48 the Court correctly addressed this issue in a manner that aligns with the ILC’s guidance on the lack of distinction between criminal and civil liability in the context of the international responsibility of a state. Dismissing Nigeria’s objection to jurisdiction on the ground that the application presented issues bordering on criminal conduct, the Court stated in the Gan Allah Fulani case as follows:

(40) It is not uncommon for a conduct, an event, or incident to implicate different legal obligations, resulting in multiple liabilities for one or more persons. Thus, invariably, an action or omission that violates the fundamental human rights of an individual may also give rise to other liabilities including criminal penalties under municipal or international law. Nevertheless, it does not follow that merely because the underlying cause of an alleged human rights violation is or may be a crime, the Court is ipso facto deprived of its jurisdiction to adjudicate the human rights claim.

(41) In a human rights action such as this one, it is the international obligation of the state to respect or protect the fundamental human rights of the victim of the wrongful conduct that is engaged. This is different from a criminal proceeding, whether domestic or international, where the purpose of the process is to hold persons who committed (or were complicit in) the underlying wrongful act personally and criminally liable.

Similarly, it can be fairly argued that although the applicants in Ekolama described the conduct of the Nigerian government as ‘stealing’ or ‘theft’ of their intellectual property, they were not, in fact, inviting the Court to hold Nigeria criminally liable. It was, for all intents and purposes, a metaphor used to describe how the Nigerian government had allegedly appropriated their software for its own use without their consent. Therefore, far from being a criminal complaint, the applicants had submitted a human rights application, with just a word or two painting a metaphorical image of criminal conduct. The Court’s fixation on the language, rather than the substance of the claim, led it astray.

Indeed, even if it is granted that the applicants’ use of the terms ‘stealing’ or ‘theft’ was not figurative, the Court - guided by the rules of state responsibility and its reasoning in Gan Allah Fulani - should still not have conflated a label that might be attached to an act under municipal law (‘theft’) with the characterisation of that same act under international human rights law (an unlawful interference with or deprivation of property). As earlier noted, a single act by a state agent can constitute, and often does constitute, both a domestic (or international) crime and an international human rights violation.49 Therefore, even if the alleged copying of the applicants’ software by the respondent’s agents were a crime under Nigerian law, the Court was approached in its capacity as a human rights court, and should have focused on the human rights claims presented to it. The Court’s failure to do so creates an accountability vacuum that shields state-sponsored infringements of property rights from international human rights scrutiny. It gives a regrettable impression that a case alleging a property rights violation (and potentially other human rights violations) cannot succeed at the ECOWAS Court if the underlying conduct is, or may be, a crime. This is a setback for the protection of property and other rights in the sub-region, particularly in cases where the domestic legal remedies are ineffective, inadequate or inaccessible.

The Court compounded this error with an unusual conclusion that wrongly theorised a violation of the right to property under article 14 of the African Charter and reflected a misconception of the nature of intellectual property. It held that the applicants’ rights in the NSP could not have been violated by the respondent’s alleged copying and adaptation of the NSP as NISPSAS, since the first applicant still had his legal title to the software in the form of the copyright certificate. In the Court’s words, ‘the Applicant still possesses the ownership of their web creation, which flaws the argument of a deprivation of ownership’.50

At a conceptual level, the Court’s reasoning represents a defective theory of a violation of the right to property. The Court suggests that a violation of the right to property occurs only when an individual is deprived or totally divested of their interest in a property. This proposition overlooks the characteristics or elements of the right to property and the extent to which they may be implicated by the adverse conduct of the state. In African Commission v Kenya (Ogiek), the African Court recognised that ‘in its classical conception, the right to property usually refers to three elements namely: the right to use the thing that is the subject of the right (usus), the right to enjoy the fruit thereof (fructus) and the right to dispose of the thing, that is, the right to transfer it (abusus)’.51 It follows that a determination of whether the right to property has been violated, in any instance, should involve considerations of (a) the element of the right to property implicated by the respondent’s conduct; and (b) the impact of the respondent’s conduct on that element.

It is entirely possible that an individual may still possess the legal title to a property, but the respondent’s conduct may have either deprived or interfered with the individual’s right to enjoy the economic benefits flowing from the property. In such a case, it would be incongruous to suggest that the right to property has not been violated within the meaning of article 14 of the African Charter merely because the individual has not been totally deprived or divested of the property or the legal title to it. Indirect or de facto expropriation describes those instances where elements of the right to property may be interfered with despite the formal title remaining with the owner.52 Thus, the Inter-American Court of Human Rights has long recognised that the right to property under the American Convention on Human Rights protects not just the abstract title but also the ‘use and enjoyment’ of property, and that an interference with these can amount to a deprivation.53 The European Court has similarly held that measures that substantially interfere with the economic viability of a property right can constitute a de facto expropriation requiring compensation, even without a formal transfer of title.54

The above discussion shows that the violation of a right, such as the right to property, is often graduated or a matter of degree. In other words, a violation of the right to property is not always a stark divide between total divestment of the property and no interference at all. Instead, it is, and should be, conceived as a spectrum. The fact that a violation may take the form of unlawful interference with use or enjoyment of the property (at the lower end of the scale) rather than total deprivation (at the higher end) does not mean that a violation has not occurred. The degree or extent of the interference may be a relevant factor in determining reparation, but not in deciding whether a violation has, in fact, occurred. Regrettably, in Ekolama, the Court’s conceptualisation of a property rights violation lacked these insights and nuances.

Beyond the problematic conceptualisation of a violation of the right to property at the general level, the Court’s reasoning also revealed a fundamental misunderstanding of the more specific issue of the nature of intellectual property. In fact, it may be said that the Court fell into a trap of ‘tangible fallacy’. The Court concluded that no violation of the right to property could have occurred because Mr Ekolama was never divested of his ownership of the software; he still held the physical copyright certificate. This reasoning treats an intangible right as if it were a physical object like a parcel of land or a piece of machinery. It fundamentally misunderstands that the property in copyright is not the paper certificate, but the bundle of exclusive rights to control the use of the created work. In property law, there is clear distinction between tangible property (physical items) and intangible property (abstract rights) which include intellectual property. The value of an intellectual property right lies not in the piece of paper that certifies it, but in the bundle of exclusive rights it confers - the right to reproduce, to distribute, to adapt, and to prevent others from doing so.55

Accordingly, the essence of copyright is the author’s exclusive right to authorise or prohibit actions such as reproduction, public performance, and adaptation of their work. An infringement - the unauthorised reproduction and deployment of the software, as alleged by the applicants - is an act that strikes at the heart of this property right. It interferes with the peaceful enjoyment of the property by destroying its exclusivity and diminishing, if not eliminating, its economic value. Accordingly, by focusing on the symbol of the right rather than its substance, the Court rendered the protection of article 14 of the African Charter effectively meaningless for the owner or holder of an intangible asset such as intellectual property rights.

In our view, the Court should have addressed two pertinent questions: First, did the actions of the Nigerian government and/or its agents constitute an interference with the applicants’ property, specifically their copyright in the software? If the answer is yes, then the second question should have been whether this interference was justified under the second sentence of article 14 of the African Charter; that is, whether the interference was in the public interest and in accordance with law. The Court’s failure to ask and address these basic questions and undertake a more nuanced analysis led to a profound misreading of the right to property under the African Charter.

3.3 The procedural vacillation on expert evidence

While the Court’s ultimate dismissal of the claim on the merits is noteworthy, the procedural history of the case, specifically the Court’s vacillation and, ultimately, abortive engagement with expert evidence warrants some comment. The judgment reveals a seeming indecision over the need for expert evidence that unfolded over several months. The process began in December 2023 when the Court itself, after the case had been scheduled for judgment, first identified ‘the need to invite an expert to submit a technical report before judgment can be delivered’.56 This was followed by a reversal just ten days later when the Court ‘waived the need for an expert witness’.57 In another about-face in February 2024, the Court, acting suo motu under article 45 of its Rules, again determined that an expert was essential and ordered the chief registrar to appoint one.58 After an expert had been appointed, the applicants objected to the choice, and rather than resolving the objection or appointing a different expert, the Court simply ‘withdrew the file for judgment’,59 and proceeded into deliberations without the benefit of the expert report it had, on two different occasions, deemed necessary.

The Court’s management of this issue is fraught with problems that have significant implications for its jurisprudence and the administration of justice. A most glaring problem is the Court’s apparent indecisiveness and the resulting procedural inconsistency. The oscillation between requiring an expert report, waiving it, and then requiring it again projects an image of judicial uncertainty. This procedural vacillation is problematic. First, it creates doubts for the litigants, who may be left unsure of the evidentiary standards the Court is applying. Second, it undermines the authority of the Court’s own procedural orders. By deeming an expert report essential for the delivery of a judgment and then proceeding without one, the Court effectively vitiated its suo motu order of 29 February 2024 without any clear justification(s).

The judgment provides no reasons for these shifts, leaving observers to speculate whether the changes were due to logistical difficulties, judicial convenience, or a shifting understanding of the case’s requirements. Furthermore, the judgment reveals a discomforting failure in transparency regarding the expert witness appointment process. The Court notes the applicant’s objection to the appointed expert but fails to articulate the grounds for this objection in the judgment.60 Thus, it remains unclear in the judgment whether the objection was based on a perceived conflict of interest, a lack of requisite qualifications or some other procedural impropriety. The Court’s silence on this is concerning. A transparent judicial process would require articulating the nature of the objection and the Court’s reasons for either upholding or dismissing it. By simply noting the objection and abandoning the entire expert appointment process, the Court sidestepped its responsibility to ensure and demonstrate the integrity of its own procedure under article 45 of the Rules of the Court. This opacity in the judgment does little to build confidence in the Court’s ability to manage complex evidentiary processes fairly.

Ultimately, the failure to procure and consider expert evidence had a negative impact on the Court’s analysis of the merits of the case. The core of the applicants’ claim was that the respondent’s software (NISPAS) was a functional copy of their own (the NSP), constituting an infringement of their property rights. This was not a question that could be resolved by a mere visual inspection of a copyright certificate; it required a deep technical comparison of software architecture, source code, functionality and user interface. The Court, deprived of expert guidance, resolved the case on a narrow and formalistic legal distinction. It reasoned that because the applicants still held the copyright certificate, they had not been ‘divested of [their] proprietary rights’.61 This reasoning is problematic because it fails to appreciate the nature of intellectual property in the digital age. The value of a software application does not lie merely in the legal title, but in its economic value and the exclusive right to exploit it. An expert report could have established whether the respondent’s application was a ‘direct lifting’ of the concept and core features of the applicants’ software,62 thereby constituting a de facto deprivation or interference with the economic value of their intellectual property. Such an act of appropriation, if established, could certainly be construed as an encroachment on the right to property under article 14 of the African Charter, even if it does not extinguish the formal legal title. By avoiding the expert evidence, the Court foreclosed a more nuanced and informed analysis of the issue, settling instead for a superficial interpretation that arguably failed to deliver justice in the context of the alleged wrong.