The COMESA Court of Justice
by REGISTRAR, HON. LUCY NYAMBURA MBATIA ADVOCATE
Establishment of COMESA
The Common Market for Eastern and Southern Africa (COMESA) is a regional economic community composed of 21 African States namely Burundi, Comoros, DR Congo, Djibouti, Egypt, Eritrea, Eswatini, Ethiopia, Kenya, Libya, Madagascar, Malawi, Mauritius, Rwanda, Seychelles, Somalia, Sudan, Tunisia, Uganda, Zambia and Zimbabwe. It replaced the Preferential Free Trade Area for Eastern and Southern Africa (PTA) in 1994.
The main objective of the Common Market is to promote regional integration through trade development.
The COMESA Court of Justice
The COMESA Court of Justice was established under Article 7 of the Treaty as one of the organs of the Common Market. Its primary mandate is to ensure adherence to the rule of law in the interpretation and application of the COMESA Treaty. The Seat of the Court is in Khartoum, Sudan.
Composition of the Court
The Court is composed of 12 Judges, five of whom serve in the Appellate Division, while seven serve in the First Instance Division. Judges serve for a five-year term which is renewable once. No two Judges can be appointed from the same Member State.
The Court is headed by a Judge President who is also the head of the Appellate Division. The immediate former President is the late Mr. Nzamba Kitonga, SC. The current President is Lady Justice Lombe Chibesakunda from Zambia.
The First Instance Division is headed by a Principal Judge. The immediate former Principal Judge is Prof. Samuel Rugege, retired Chief Justice of Rwanda. The incumbent is Lady Justice Qinisile Mabuza of Eswatini.
The Registry is headed by a Registrar who is appointed by the Council in terms of Article 41 of the Treaty. The Registrar is the CEO of the Court and is responsible for the day-to-day operations of the Court. The current Registrar is Hon. Nyambura Lucy Mbatia.
Jurisdiction of the Court
Article 23 – General Jurisdiction of the Court
This Article empowers the Court to adjudicate upon all matters brought before it pursuant to the Treaty. References are lodged in the First Instance Division subject to a right of appeal to the Appellate Division on points of law, lack of jurisdiction or procedural irregularity.
Article 24 – References by Member States
The Court has the power to hear references from a Member State against another Member State or the Council of Ministers in the event there is failure to fulfil an obligation under the Treaty or in case of infringement of a Treaty provision by a Member State or Council.
A Member State can also file an application for the determination of the legality of any act, decision regulation or directive of the Council of Ministers on grounds that such act, decision regulation or directive is unlawful or constitutes infringement of a Treaty provision or any rule or law relating to its application or is tantamount to a misuse or abuse of power.
Article 25 – Reference by the Secretary General
The Secretary General may file a reference against a Member State which has failed to fulfil an obligation under the Treaty or has infringed a Treaty provision.
Article 26 – Reference by legal and Natural persons
The Court has power to hear references from a person (legal or natural) who is a resident in a Member State concerning the legality of act, decision regulation or directive of the Council or of a Member State on grounds that such act, decision regulation or directive is unlawful or constitutes an infringement of the provisions of the Treaty. This Article, however, imposes an obligation on litigants to exhaust local remedies before a reference is made to the Court.
In Polytol Paints & Adhesive Manufacturers Co. Ltd V. The Republic of Mauritius (Ref. No. 1 of 2012), Polytol, a company incorporated in Mauritius, sued for recovery of customs duties imposed by Mauritius on paint imported from Egypt. The Court found that the Respondent had breached Article 46 of the Treaty by imposing duties and was ordered to refund duty paid.
Article 27 – Jurisdiction Over Claims by COMESA Employees and Third Parties Against COMESA or its Institutions
The Court has jurisdiction to hear disputes between COMESA and its employees that arise out of the application and interpretation of the Staff Rules and Regulations of the Secretariat or other institution regarding the terms and conditions of employment of the employees. Similarly, the Court has jurisdiction to determine claims brought against COMESA or its institutions for acts of their employees in the performance of their duties.
Article 28 – Jurisdiction under Arbitration Clauses and Special Agreements
The Court has jurisdiction to hear and determine matters arising from an arbitration clause contained in a contract which confers such jurisdiction to which the Common Market or any of its institutions is a party or from a dispute between Member States regarding the Treaty if the dispute is submitted to it under a special agreement between the Member States concerned.
All Judges of the Court have received extensive training in arbitration, and several have qualified as Members and Fellows of the Chartered Institute of Arbitrators (CIArb). In 2018, the Court adopted new Arbitration Rules (2018) that are in tandem with current best practice in arbitration.
In this respect, legal practitioners are encouraged to consider the COMESA Court of Justice as the arbitral tribunal of choice when drafting arbitration clauses.
Article 30 – Preliminary Rulings
The Court has jurisdiction to issue Preliminary Rulings upon the request of a court or tribunal in a Member State where a question concerning the application or interpretation of the Treaty or the validity of regulations, directives and decisions of the Common Market has been raised in proceedings before that court or tribunal.
Therefore, Counsel appearing before such a national court or tribunal may request that court or tribunal to refer the issue to the COMESA Court of Justice. The COMESA Court will not, in such instances, delve into the merits of the case and its ruling is only meant to enable the national court or tribunal to give a judgment that is in conformity with the Treaty. This Article is intended to ensure uniform interpretation and application of the Treaty across all the Member States.
Article 32 – Advisory Opinions
The Court has Jurisdiction to give Advisory Opinions on the written request of a Member State or the Secretary General on a question of law arising from provisions of the Treaty.
Article 36- Interveners
A Member State, the Secretary General or a resident of a Member State who is not a party to a case before the Court may, with leave of the Court, intervene in that case, but the submissions of the intervening party shall be limited to evidence supporting or opposing the arguments of a party to the case.
Rules of Procedure
The COMESA Court Rules of Procedure (2016) and Arbitration Rules (2018) guide proceedings before the Court. It is essential to note that no fees are payable by litigants save in very exceptional cases. However, fees are payable for arbitral matters.
The COMESA Court Digital Evidence Management System
In February 2019, the Court adopted Case Lines Digital Evidence Management System, a platform that enables parties to electronically file documents remotely from their respective locations.
Consequently, when many countries within the COMESA region and beyond implemented full scale or partial lockdowns in early 2020 to control the spread of the COVID-19 pandemic, the Court was able to remain largely functional and to maintain continuity of essential services.
The system eliminates the need for paper in court by introducing an entirely digital platform with tools which allow the creation and presentation of a fully digital bundle including multi-media evidence.
With collaborative tools for enhanced pre-trial preparation and secure video conferencing for virtual hearings, the system enables Judges to work efficiently from their home offices, thereby improving preparation, cutting unnecessary travel, and speeding the process of preparing rulings or judgments. Judges are also able to deliver their decisions online. All Judges have undergone rigorous training to familiarise them with the system.
The system allows lawyers to file applications and evidence in a secure environment from their own offices, saving costs of copying, transporting paper files, travel and at the same time cutting the risk of losing or misplacing files. The Registry offers support to lawyers using the system for the first time.
The Court continues to work with the service provider to customise some of the functions of the system to make it responsive to its specific needs.
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CONTACTS
COMESA COURT OF JUSTICE
Al Tijani Al Mahi Street No.3-4-0-7
P.O. BOX 12222 Khartoum, Sudan
Email: info@comesacourt.org
Telephone: +249 183 760 591 /2/3/4
Website: www.comesacourt.org / www.comesa.int
