Common Market for Eastern and Southern Africa Court of Justice

The COMESA Court of Justice is the judicial organ of a regional economic community, the Common Market for Eastern and Southern Africa (COMESA), and is charged with settling disputes arising under the COMESA Treaty between COMESA’s Member States, Secretary General, individuals and corporations. The COMESA Court of Justice does not have general competence to hear individual complaints of alleged human rights violations.

The Common Market was established in 1993 by the COMESA Treaty, to bring together Member States from Eastern and Southern Africa for the purpose of economic and social cooperation. Under Article 6(e) of the COMESA Treaty, COMESA also recognizes, promotes and protects the human and people’s rights as set out in the African Charter on Human and People’s Rights. COMESA’s nineteen Member States are: Burundi, Comoros, the Democratic Republic of Congo, Djibouti, Egypt, Eritrea, Ethiopia, Kenya, Libya, Madagascar, Malawi, Mauritius, Rwanda, Seychelles, Sudan, Swaziland, Uganda, Zambia and Zimbabwe.

Article 7(c) of the COMESA Treaty establishes the Court of Justice, which now has its seat in Khartoum, Sudan. As laid out in Chapter Five of the Treaty, the Court’s principal function is to “ensure the adherence to law in the interpretation and application of [the] Treaty” with Article 2 of the Treaty granting jurisdiction to hear all matters arising under the COMESA Treaty. The Treaty’s provisions generally deal with the details of trade, economic integration, and development; however, specific chapters deal with health (Chapter 14), the environment (Chapter 16), access to food, water, education, sanitation, and infrastructure (Chapter 18), promoting the role of women (Chapter 24), and free movement of persons (Chapter 28). The decisions of the COMESA Court are binding and supersede national courts’ decisions.

Article 24 of the Treaty dictates that Member States may refer cases to the Court when they consider “that another Member State or the Council has failed to fulfill an obligation under [the] Treaty” or in order for the Court to rule on “the legality of any act, regulation, directive or decision of the Council” alleged to be in violation of the Treaty “or any rule or law relating to its application or [which] amounts to a misuse or abuse of power.” Likewise under Article 25, the COMESA Secretary General may refer disputes involving Member States to the Court for the same reasons, but only after allowing the Member State an opportunity to respond.

Moreover, Article 26 grants that individuals and corporations resident in any COMESA Member State “may refer for determination by the Court the legality of any act, regulation, directive, or decision of the Council or of a Member State on the grounds that [it] is unlawful or an infringement of the provisions of [the] Treaty…”  In complaints against Member States, the individual or corporation must first exhaust domestic remedies in the national courts. See also, e.g., Kenya v. Coastal Acquaculture, Ref. No. 3/2001, Judgment of 26 April 2002.

The Court’s decisions, at least as far as those made publicly-available online, have not involved alleged fundamental rights violations. The COMESA Court of Justice procedures are outlined in its Rules of Procedure.