Regional organization: Common Market for Eastern and Southern Africa

COMESA Date of Establishment: December 8, 1994

COMESA CJ Date Operational: September 1998

COMESA CJ Seat: Khartoum, Sudan

States Subject to COMESA CJ Jurisdiction: Angola, Burundi, Comoros, Democratic Republic of Congo, Djibouti, Egypt, Eritrea, Ethiopia, Kenya, Libya, Madagascar, Malawi, Mauritius, Namibia, Rwanda, Seychelles, Sudan, Swaziland, Uganda, Zambia and Zimbabwe

Number of Cases Received by the Court: Not available

The Common Market for Eastern and Southern Africa (COMESA) was created in 1994, with the objective of becoming a sub-regional common market, and eventually an economic community. The COMESA Treaty replaced the fulfilled Treaty for the Establishment of the Preferential Trade Area for Eastern and Southern Africa (PTA) as the next step in the evolution of the region.

Under the COMESA Treaty, member States are called to cooperate in all areas of economic activity, including trade promotion, monetary and financial cooperation, development of agriculture, investment, and improvement of transport and communications. COMESA also promotes peace, security, and stability among member States.

To oversee the implementation and interpretation of the COMESA agreement, the Treaty established a Court of Justice, modeled on the European Court of Justice. Like the European Court of Justice, the COMESA Court of Justice can be seized of a matter by one of several ways. First, a member State may bring another member State or the Council before the Court for breach of the Treaty or failure to fulfill an obligation thereunder. Providing the Common Market with independent monitoring and enforcement power, the Treaty permits the Secretary General (with the agreement of the Council) also to bring a member State before the Court for failure to fulfill its Treaty obligations. Like the European Court of Justice, the COMESA Courtís decisions have precedence over any decisions of national courts.

Unlike the former PTA Tribunal, and theoretically furthering the non-political enforcement of the Treaty, the Court may receive cases not only from member States, but also from natural and legal persons, against the Council to determine the legality of any act, directive, regulation or decision made. Persons also are permitted standing under the Treaty to sue a member State in the COMESA Court regarding the legality under the Treaty of any act, directive, regulation or decision of such member State. This provision, progressive as it would be in the African region, is seemingly eviscerated by the coupling of a requirement that all national remedies be exhausted and a system of referrals from national courts. The Treaty includes a referral procedure similar to that under Article 177 of the Treaty of Rome. In the event that a member State court is reviewing the application or interpretation of the Treaty or determining the legality of an act, directive, regulation or decision of the Common Market, it may request the Courtís opinion on the matter. If the national court is a court from which there is no appeal or remedy, the court is required to refer the question to the COMESA court. AS national remedies must be exhausted before a person can bring a matter to the COMESA CJ, the result is that it is only in the unlikely event that a court of final instance fails to fulfill its obligation to refer a matter of Treaty interpretation or application in connection with a member State act that the right of persons to bring suit in the Court could be exercised.

The COMESA Court has jurisdiction over suits brought by COMESA employees and third parties against COMESA or its institutions (a function previously carried out by the PTA Administrative Appeals Board). It also may act as an arbitral tribunal on any matter arising from a contract to which COMESA or any of its institutions is a party (a function similar to that carried out by the former PTA Centre for Commercial Arbitration). Further, the Court can adjudicate any dispute between member States who agree to bring the dispute before it.

The Treaty, unlike the Statute of the International Court of, does not state the sources of law to be applied by the Court. The Treaty and any COMESA issued legal instruments, will of course make the initial law to be applied, but municipal law and international law (including humanitarian law) may also be determined applicable by the Court.

While the jurisdiction of the COMESA Court provides multiple avenues for the creation of standard interpretation of the Treaty, there is no specific provision of an avenue for the settlement of disputes between the institutions of the Common Market. The Court also is not given the power to interpret the statutes of the other COMESA institutions. Finally, the Treaty does not specify that the Court will have jurisdiction over human rights issues within the Community.

Due to the varying jurisdictions of the Court, the Eighth Meeting of Ministers of Justice and Attorneys General recommended to the Council of Ministers and the Authority that the Treaty be amended to provide for two divisions in the Court, the Court of First Instance and the Appellate Division. The proposal was adopted and the Court was expanded in June of 2005 with the appointment of seven judges in the Court of First Instance and five judges in the Appellate Division. The work of the Court was then suspended until the Appellate Division judges were appointed and the Rules of Court for the Appellate Division were drawn up and adopted. During this reformation of the Court, the previously fully-independent Court was made subject to the review of any proposed Rules of Court by the Ministers of Justice and Attorneys-General.

While the Court was established under the 1994 Treaty, the first set of judges was not appointed until 1998. Unlike other African regional courts, the COMESA Court has and continues to receive cases. However, a lack of funds has plagued the Court to the extent that at certain times it has been unable to hear all of those cases. The Council of Ministersí decision to fund only one session of the Court per year has continued this problem, with up to 12 cases filed with the Court remaining pending this year. The backlog of cases will most certainly increase with the current growth in trade disputes in the region.

The logistical problems of the Court have been exacerbated by its recent move. Originally based in Lusaka, Zambia, the Court took possession of its permanent seat in Khartoum, Sudan on January 23, 2006. Three months later, the staff of the Court remained split between Khartoum and Lusaka and the offices of the Court were not fully functional.