The Common Market for Eastern and Southern Africa (COMESA) was established in 1994 with ambitions to mold a strong trading bloc through regional integration across the continent. Today, it counts 21 African states as members, covering a population of close to 650 million people, a total GDP of USD one trillion, and trade valued at close to USD 400 billion.
Among the foremost institutions under COMESA are its Authority, the supreme policy-making organ composed of heads of state and government, its Council of Ministers, and its Court of Justice.
Over the past few days, Addis Ababa played host to a number of conferences, seminars, and exhibitions as part of COMESA Week, which brought together the leaders of the economic community’s institutions.
Among those in attendance was Hon. Asiimwe Anthony, assistant registrar of the COMESA Court of Justice. The Reporter’s Addis Getachew caught up with Anthony to get a better understanding of the inner workings of the Court, its mandates, and the challenges it faces. EXCERPTS:
The Reporter: To begin, could you briefly introduce the COMESA Court of Justice and its core mandate?
Asiimwe Anthony: The COMESA Court of Justice is the judicial arm of the Common Market for Eastern and Southern Africa, and its mandate is to ensure the proper interpretation and application of the COMESA Treaty. The Court is structured in two divisions. It has the Appellate Division and the First Instance Division. The Appellate Division is composed of five judges and is headed by the Judge President, whereas the First Instance Division is led by the Principal Judge and is composed of seven judges. Our mandate is to ensure that there is predictability and certainty in the business environment, and to ensure that member states and individuals follow a rules-based system in application of the COMESA Treaty. That is what the COMESA Court of Justice does.
What types of cases does the Court handle, and who is eligible to bring matters before it?
The Court handles trade matters or trade disputes. It has both adjudicatory and arbitration jurisdictions. Therefore, where there is a trade matter, a party can bring a reference to the Court and that reference will be brought before the First Instance Division. And once the case is determined, and if someone is dissatisfied, then they can appeal to the Appellate Division. Among the parties that can bring matters to the case is the Secretary General of the Common Market. They can bring a matter to the Court on instruction of Council. The other parties that can bring matters to the Court are individuals; individuals have direct access to the Court of Justice as long as they have exhausted local remedies in their member states. This enables businesses and individuals to have access to justice and to get remedies from the COMESA Court of Justice. The other kinds of cases that we deal with are arbitration matters. Article 28 of the COMESA Treaty gives the Court arbitration jurisdiction where the Common Market is a party. In any agreement where the Common Market is a party, an arbitral Clause can be put into the contract and the matter can be brought before the COMESA Court of Justice. Secondly, Article 28 was recently amended in 2018 to include investor-state disputes. So, where there is an investor-state agreement or investment and there is a clause where the COMESA Court of Justice is the choice of arbitration, then the matter can be brought before it. The other people that can bring matters to the court, of course, include Common Market employees as well. They can bring matters to the Court in reference to their terms and conditions of service in their contracts.
Some feel that institutions under the African Union seem to pursue a top-down approach, and accuse them of being elitist. CCJ is among them. What do you say to this?
As a court, we do not charge fees for cases. We understand the nature of businesses, small and medium enterprises, youths and individuals within the COMESA market, and we try to bring justice closer to the people in whichever way possible. Justice is blind; it cannot be for the elite only. We try to bring this out through our own vision to be a world-class court; promoting regional integration. What I can say is the main issue that we have had as a court is visibility and lack of awareness from member states and individuals within member states. As long as we are out there and people know their rights, then the Court is not elitist; it is not part of the elitist group. We are part of the underprivileged and the discriminated and the people that face unfair treatment in trade. Those are the people that we represent. We represent the people.
How do you publicize not only the operations of the Court, but its rulings and the major disputes that come before it?
We have a website where we put all rulings or judgments that have been rendered by the Court. And we try as much as possible to hold public awareness campaigns in the form of public seminars, attending conferences such as this, which is for the Confederation for Women in Business. So we are doing visibility campaigns; awareness campaigns within member states. I think we’ve been to ten of them already. And we’re still going. It’s part of our agenda for 2025-2026, to continue with the public seminars, to continue with these awareness campaigns so that we can reach as many businesses, as many individuals as possible.
How integrated and harmonious are CCJ’s structures and operations with international counterparts?
First and foremost, I wish to say that as the judicial arm of the African Common Market, the Common Market for Eastern and Southern Africa is one of the eight regional blocs that have been identified by the African Union to be the building blocks for the African Continental Free Trade Area. So we try as much as possible to synergize and collaborate with other judicial institutions. We collaborate with the East African Court of Justice. We’ve been to the European Court of Justice. And we’ve been to the African Court for Human and Peoples’ Rights. And we collaborate with these other judicial bodies to ensure that our systems are harmonious, they are integrated, and they meet the best practices in dispensation of justice.
Have there been any cases where a dispute that arose under your jurisdiction moved to a court in another continent or some other regional or international body?
Of course, regional integration is rules-based. And the scope of our jurisdiction is within the COMESA Treaty. We ensure that member states meet their obligations under the COMESA Treaty. And where there’s an infringement, parties have a right, a legal right to bring cases before the COMESA Court of Justice and have that dispute resolved. A famous case or one of the prominent cases that has gone beyond borders, beyond Africa, I think is the famous case of Polytol Paints and Adhesives Manufacturers Company Plc. This was a Mauritian company. And it brought the case against the government of Mauritius. The government of Mauritius at the time had re-imposed a 40 percent customs duty on the KAPCI paints that Polytol Paints was importing from the Republic of Egypt. And the Court ruled that Mauritius, since Mauritius had joined the COMESA Free Trade Area in 2000 and had signed on obligations to eliminate tariffs by the end of 2000, reintroducing these customs was a breach of the COMESA Treaty. And it was the first case where individual entities had exploited their right to direct access to the CCJ. They don’t have to go through their member states like the way with the WTO (World Trade Organization) system, or the way the African Continental Free Trade Area dispute settlement mechanism works currently. The Court gives individuals the right to bring cases against their governments where the governments have infringed on the COMESA Treaty. Trade is all about elimination of non-tariff and tariff barriers to trade; so once the individuals have those rights, there is confidence of investors, there’s confidence in businesses because they’re operating in a rules-based environment. This is one of the prominent cases that I think has transversed continents. It’s been cited in various papers, legal and academic, and even in social and political settings.
When did this case arise?
The case of Politol was in 2012. But in recent years, we have also had other cases that are pretty much like the case above.
Tell us about one or two of those cases.
We have a case that was decided last year, and I think this year in February: Agiliss Limited versus the Republic of Mauritius again. In this case the company, Agiliss, was an importer of edible oils and was importing the edible oils from, again, the Republic of Egypt. And the Republic of Mauritius felt that there was a surge of imports that was coming into the Republic of Mauritius, and to protect the domestic industry they decided that they wished or they intended to impose a self-cut measure. However, the company felt that the process that the government had taken was not inclusive and had not followed the COMESA regulations on self-cuts, so an imposition of self-cuts. When the case came before the Court, the Court really found that indeed the government of Mauritius did not carry out the proper investigations that were required for them to actually go ahead and impose the self-cut measure. Secondly, they had also not notified other COMESA member states. In the end, the Court ruled in favor of Agiliss Limited, and it’s one case, again, that shows that really we champion promoting regional integration through dispute resolution.
The next question relates to the CCJ and its mandate to take on cases where local remedies have been exhausted, or exhaustion of local remedies was not possible. Do you have a mechanism in place to verify that? How do you verify if local remedies have been exhausted?
Yes, the principle of exhaustion of local remedies is a principle of international trade law. It is intended to give governments the first opportunity to resolve disputes before matters are brought before a regional court. Indeed, we find that the principle of local remedies, of exhaustion of local remedies, sort of takes back the right of parties to bring matters before the Court in the sense that they have to go through a long process in their member states before they arrive at the Court. Of course, how they prove that is in their evidence, they will have to show that they brought a matter before this tribunal or before this court in a member state, and they were not satisfied with the outcome of the rulings or the judgment in their national member states, and therefore they approach the COMESA Court of Justice and seek remedies. But the rule is not cast in stone, and the Court has ruled time and time again that local remedies in member states must be effective, they must be readily available. In cases where a party tries to access a local court or tries to resolve their dispute domestically, however, they are not able to access the remedy in the member state, they can bring the matter directly to the court. If the remedy that has been given to them is not effective or does not meet the standards of the practice of law that is there, then still they can bring the matter to the COMESA Court of Justice directly without even exhausting local remedies. They only have to prove before the Court that the local remedies were not readily available, they were not effective, and in that sense that’s how they have come to the COMESA Court of Justice.
How are local judicial institutions related to the COMESA Court of Justice?
Under Article 30 of the COMESA Treaty, you find that national courts have a right to apply for preliminary rulings on questions of interpretation of the COMESA Treaty. So where a matter is before a national court or a national jurisdiction, and a question arises and it involves the interpretation of the COMESA Treaty, they can apply to the Court for a preliminary ruling on that question of interpretation that has arisen in a case in a COMESA member state for the interpretation of the COMESA Treaty. We are the epitome court that interprets the COMESA Treaty. However, that does not take away the right of national courts to also interpret or apply the COMESA Treaty. However, where they feel that they need the interpretation of the COMESA Treaty from the Court, they can apply for a preliminary ruling. That’s under Article 30 of our Treaty. So the relationship is there and it’s maintained in that way.
Does COMESA claim supremacy in cases of appeals?
Yes, the COMESA Court of Justice is the final court or ultimate court that deals with the interpretation and application of the COMESA Treaty. On questions of interpretation and application of the COMESA Treaty, the COMESA Court of Justice reigns supreme. We do not claim supremacy in civil disputes that arise in member states or in criminal jurisdictions or in all other forms of claims that can be brought before a member state. Rather, on questions of interpretation and application of the Treaty, the COMESA Court of Justice is the final court that has the jurisdiction for that matter.
Does the CCJ have mechanisms through which it can enforce its rulings?
Yes, we do not have an execution division that will enforce the rulings that the Court has given. However, we rely on the national courts. So when a judgment has been rendered in the COMESA Court of Justice, then that judgment is endorsed and then it can be taken before the national jurisdictions. And the national jurisdictions have the obligation under the COMESA Treaty to recognize and enforce judgments that have come from the COMESA Court of Justice. So in that way, we have that synergy with the national jurisdictions and national courts when it comes to execution.
What are your views on the issue of low caseload? Many criticize the CCJ for handling fewer cases than expected. This raises questions about the Court’s effectiveness and relevance.
Indeed, there is a low intake of cases within the COMESA Court of Justice. The numbers speak for themselves. Since inception, I think the Court has only dealt with about 56 matters as compared to other regional courts like the East African Court of Justice, the European Court of Justice, the Caribbean Court of Justice. However, the issue is not the number of cases that have come into the Court. What we see here is that there is a lack of awareness; there is a lack of visibility of the COMESA Court of Justice and its mandate. Secondly, the COMESA Court of Justice covers 21 member states. And the jurisdiction of the COMESA countries ranges from common law to civil law to Islamic law. All these are part of the different jurisdictions that cover the COMESA member states. So I look at it as an issue of awareness. Businesses do not know their rights under the COMESA Treaty. So that lack of awareness, I think, is the biggest issue. And I think if the Court continues with its awareness campaigns, continues with its visibility campaigns, at the end of the day we shall see an uptick in the number of cases that are being brought to the COMESA Court of Justice. It’s never too late. And Justice does not decay. As a court we will always be there to enforce rules, to ensure that there is a rule-based environment within the COMESA region. And I think the relevance of the Court can never be taken away because for any relationship, regional integration is rules-based. And you will always expect that there will be differences in the interpretation and application of the Treaty. However, where member states bring up protectionist tendencies or non-tariff barriers to trade and all these others, we need the Court. The relevance of the court can never go away. Whether there are cases or not, it is always expected at one moment that the Court will actually enforce the Treaty. We are guardians of the law. And I think that relevance cannot be taken away. We have equal importance to the other organs of the COMESA Treaty, such as the Authority and the Council. So the biggest issue, I think, is knowledge about the Court. There is that lack of awareness, that lack of knowledge about the mandate of the Court. And I think, in that way, that’s what has brought about the low intake of cases that we have at the COMESA Court of Justice.
What is your response to arguments that a low caseload may also indicate distrust?
The CCJ has put out quality judgments. It put out quality judgments like the Politol case that I have already pointed out. We are the first regional court that dealt with a trade remedy issue, an actual case that deals with trade. If you look at other courts, like the East African Court of Justice, yes, they have a number of cases, there are many, but the cases deal with human rights, most of the time. We too have the jurisdiction to receive human rights cases, but we have not received a number of cases that have come before the court dealing with human rights. Rather, we are a trade-centric court, and I think that’s the advantage that we have over other courts. So the distrust issue that may arise, I think people can take comfort in the fact that we have demonstrated that they should have confidence in the Court through some of the judgments that have been rendered. So I think there’s some misinformation. There’s some misinformation within the community about what the mandate and the exact role of the Court is in the process of regional integration and supporting businesses and small enterprises, youth and women.
The Cambridge University Press and Assessment criticizes the Court’s approach as being interpretive. Is this a conscious approach that has perhaps been adapted to fit the African context?
I would say the Court’s rule is to interpret the Treaty and to make sure that there’s proper interpretation and application of the Treaty. I think ultimately, it rests on the member states that set up this Court. And for them to have confidence in the Court, to bring matters before the Court, it’s a public secret. It’s publicly known that African member states are not into the action of suing each other. African nations do not litigate against each other. They prefer a more consultative approach—mediation, and other alternative resolution of disputes that are informal, or that are rather political, other than going or approaching the Court. Actually, this takes me back to the question about the low intake of cases and the interpretive approach that we have taken as a court. I think also the lack of political will, the lack of political will between African countries to see that they push forward the agenda of ensuring that the court is at the center of enforcing a rules-based environment within the COMESA region. I’ll take an example of the COMESA Court. If you remember the case that brought to the collapse of the SADC Tribunal, these were member states. A ruling was given in favor of the white farmers where land had been expropriated or taken away from them. And the Court ruled in favor that they should be compensated. And what happened thereafter? There was no implementation. Rather, member states chose to suspend the tribunal.
That is what transpired in Zimbabwe more than a decade ago, right?
Yes, the one that transpired in Zimbabwe. It is called the Campbell case. So I think when you watch from a distance, you see that the African countries lack the political will to embrace the institutions that they have created. And they rather leave them redundant. For instance, we have not received quite a number of cases from member states. But rather, the approach that is taken by the member states is off the course of bringing matters directly to the court. Rather, they choose other mechanisms. Probably meeting presidents or ministers, and then they try to resolve the matter there. So, to conclude on the issue of how the Cambridge press think that we have taken an interpretive approach, which other would we have taken? I don’t see the option. Indeed, we interpret the Treaty. That’s the sole basis why the Court was created. To ensure that once the Court has given an interpretation on the articles of the Treaty, then member states should implement the interpretation of the court.
Why do you think it is that African nations do not engage in litigation with one another?
Well, I think that is the culture of our politicians. The court is not the one that makes policies, not the one that has come up with all these beautiful legal instruments that are perfect for supporting regional integration. I think it is the governance structure with Africa, the people that we elect into our governments. I think if we vote the right people into our offices, those people will do the right job, and they will embrace the institutions that they have created, they will embrace the courts that ensure the full dispensation of justice. It does not make sense at all that you establish institutions and you leave them there. So, as the court we feel underutilized; we feel we have not reached our full potential. We feel that if people are able to know their mandates, their rights; if politicians voted into public offices and the ministers that attend regional meetings are focused, they would be able to push the regional integration agenda to serve the economic community in the best way possible.
Failure on the part of some member states to remit their share of budgetary contributions has impacted the Court’s operational capacity, according to COMESA itself. What do you think should be done to realize financial independence?
Indeed, the budget of the Court is supported by member states. We are not a financial institution. We are a court that dispenses justice. When member states do not fully support the Court, or if they do not increase their contributions to the Court, or when they do not remit their contributions to the Court in time, at the end of the day the work of the Court is crippled. So, it is a clarion call, this interview, to the member states to say that please, the Court is there to ensure a rules-based environment, and to build public confidence, in investors and traders, so support the Court. Let the Court be able to achieve fully all its programs. Of course we can’t say that member states have completely failed to make their contributions. Some of the issues are delays, not failures to remit. We do not blame them, because some of the delays to remit are caused by political realities on the ground. Take the example of Libya. Libya was one of the member countries that contributed on time each and every year. However due to the situation on the ground, the political environment and the outbreak of civil war there, you find that they are having difficulties. And there are many other examples. The CCJ had its headquarters in Khartoum, but because of the eruption of civil war in 2020, it had to relocate. Ethiopia is remitting. But during the conflict in the north, there was a brief disruption. Now Ethiopia has restarted remitting after a delay. Economic hardships and conflict situations, among others, have been the culprits causing member countries to delay making their financial obligations to the court.
