ECOWAS Court grants US$25,000 in damages to Asky Pilot, who was wrongfully terminated.

The Republic of Togo has been ordered by the ECOWAS Court of Justice to compensate Mr. Al-Hassan Dibasi Fadia, a former pilot with the Pan African airline Asky Airlines, 15 million CFA in general damages.

The airline fired Mr Fadia in 2021 on the basis of a ministerial directive that went into effect retroactively. It was determined that he had falsely gained a flying license by fabricating his flight record books.

The court agreed with the former pilot that the Togolian government had violated Article 7(2) of the African Charter on Human and Peoples’ Rights by using the retroactive ministerial order of July 29, 2021, as the basis for the dismissal. Justice Edward Amoako Asante, the presiding judge, delivered the court’s judgment on Thursday, June 6, 2024.

According to the article, “No penalty may be inflicted for an offense for which no provision was made at the time it was committed,” and “No one may be condemned for an act or omission which did not constitute a legally punishable offense at the time it was committed.”

Thus, the Court determined that the Applicant’s rights were violated by the disciplinary actions taken against him under Ministerial Order No. 033/2021/MTRAF of July 29, 2021, which was implemented following the leveling of accusations against the applicants and the start of disciplinary proceedings. These actions included the charges brought against him and the sanctions imposed.

The Ministerial Order, according to the Republic of Togo, was merely a procedural law that was passed to carry out the terms of the Togo Civil Aviation Code 2016 and the Togo National Aeronautic Regulations.

Additionally, it said that the Ministerial Order was immediately relevant as a procedural law, including to the applicant’s disciplinary processes.

However, the Court determined that because the Order included substantive provisions outlining offenses and punishments, it was more than just procedural legislation issued to govern the Disciplinary Board of ANAC-Togo’s operations. This finding placed the Order within the ambit of the presumption against the retroactive application of laws.

The Court agreed, citing a ruling by the European Court of Human Rights, that the “provisions defining offenses and the penalties for them” are covered by the “protection against retroactive application of laws,” and that this protection does not, in theory, affect the immediate application of procedural rules, including those pertaining to pending cases.

Further, it stated that “just because a law is procedural does not mean that it should be regarded as such, since procedural laws occasionally contain provisions that pertain to the definition of offenses or punishments or have consequences that increase the severity of penalties imposed.”

The fact that the violations were committed after the applicant had been accused and disciplinary actions had been declared is crucial in this case. The Court further stated that none of the applicable legislation, including the Togolese Civil Aviation Code, which the Respondent mainly relied upon, contained any reference to those acts, including the specific accusation of fabricating a flight logbook, of which the Applicant had been accused.

In addition, it mandated that the Republic of Togo take action to reverse and remove from its official records the disciplinary actions taken against the applicant that violated his rights under Article 7(2) of the African Charter. The steps must be taken by the Republic of Togo at its own discretion and no later than four months from the date of the judgment.

The applicant claimed in his suit that the disciplinary proceedings and sanctions he faced violated his rights to equality and equal protection under the law, in violation of Article 3 of the African Charter, and that his right to work, in violation of

In addition, in violation of Article 7 of the African Charter, he is entitled to a fair trial under Article 15 of the African Charter.

The applicant, a Guinea Bissau native who now resides in Abidjan, Cote d’Ivoire, had argued that the disciplinary actions imposed on him had infringed his right to work, leading ASKY Airlines to ground him for almost 21 months and then fired him as a pilot.

The Respondent argued in its defense that it has taken legislative and other steps to guarantee good working conditions in Togo in accordance with its international commitments.

This has made it possible for people to work in Togo, including the foreign national applicant.

Additionally, the applicant was granted a temporary license suspension following the disciplinary processes, which he can reapply for if he fulfills the requirements. The Respondent argues that it has not infringed upon the applicant’s right to work for these reasons.

The Court dismissed this ground on the observation that any responsible civil aviation authority would take seriously an incident suggesting misconduct or wrongdoing by key aeronautical personnel, such as a pilot, given the sensitivity of the aviation sector with respect to security risks and the high standards of safety required.

Consequently, the Court believes that it must show considerable deference to ANAC-Togo’s decision to launch an inquiry and initiate disciplinary actions, considering its obligation to guarantee aviation safety.

The Court held that ANAC-Togo made a justified judgment in delaying the renewal of the applicant’s validation certificate until the disciplinary proceedings against him had been resolved, taking into account the significant public interest in guaranteeing aviation safety.

Additionally, it noted that even while the fines and other disciplinary actions were not carried out in accordance with Article

7(2) of the African Charter, neither was it demonstrated that ASKY was operating under the direction or control of ANAC-Togo when it determined that the applicant no longer had a position with the firm, nor did the sanctions contain a command to fire the applicant.

The Court concluded that the Respondent did not violate the Applicant’s right to work in violation of Article 15 of the African Charter or Article 6(1) of the ICESCR because the Applicant was unable to “convincingly” establish a connection between his termination from the company and the alleged violation of his right to work by the Respondent state.

Justice Asante stated, “At best, the Applicant could rather sue his employer, Asky Airlines, before the municipal court.”

The three-person panel that heard the case, which also included Justices Sengu Mohamed Koroma and Gberi be Ouattara, determined that each party would be responsible for covering its own fees.