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Introduction

1. The establishment of the Court of Justice (Court) of the Common Market for Eastern and Southern Africa (COMESA) is a major event in the history of COMESA as an organization and in the development of COMESA Community Law and Jurisprudence. The Court was established in 1994 under Article 7 of the COMESA Treaty as one of the organs of COMESA. The Authority which is the supreme policy organ of COMESA appointed the Judges of the Court during its Third Summit on 30th June, 1998 at Kinshasa in the Democratic Republic of Congo. The Registrar of the Court was also appointed by the COMESA Council of Ministers (the Council), during its Meeting in June, 1998 at Kinshasa in the Democratic Republic of Congo. To ensure the independence of the Court, Article 9 (2) (c) of the COMESA Treaty provides that the Council shall give directions to all other subordinate organs of COMESA other than the Court in the exercise of its jurisdiction.

Seat of the Court

2. The Seat of the Court has been temporarily hosted within the COMESA Secretariat from 1998 but in March, 2003, the COMESA Authority decided that the Seat of the Court should be in Khartoum, in the Republic of Sudan.

Previous Judicial Bodies

3. The Court, in addition to other jurisdictions, took over those enjoyed by three judicial organs, which existed within the Preferential Trade Area for Eastern and Southern African States (PTA), which was upgraded into COMESA.

These PTA organs were -

a. The PTA Tribunal whose function under the PTA Treaty was to ensure the proper interpretation of the provisions of the Treaty and to adjudicate only in disputes between Member States arising from the interpretation and application of the PTA Treaty. The jurisdiction of the Tribunal was narrow and its ad hoc status and lack of a separate budget stifled its growth.

b. The PTA Administrative Appeals Board whose jurisdiction under the PTA Treaty was to adjudicate in disputes between the PTA and its staff arising from the interpretation and application of the Treaty, Staff Rules and Regulations and terms and conditions of contracts of employment of staff. The ad hoc status of the Board, its lack of an independent Registry and separate budget severely affected the functioning of this organ; and

c. The PTA Centre for Commercial Arbitration, which was responsible for facilitating international arbitration and conciliation of private commercial disputes. The Centre was based in Djibouti and operated under the auspices of the PTA Federation of Chambers of Commerce and Industry.

4. The main details concerning the Court including its functions and jurisdiction are contained in Chapter Five of the COMESA Treaty under Articles 19 to 44.

5. The Court of Justice benefits the process of economic integration since it provides one integrated strong judicial body with one Registry rather than keeping three weak judicial bodies. Further, a strong Court of Justice addresses the issue of enforcement of decisions taken collectively and also allows for legal or natural persons affected by any act, directive, decision or regulation of the Council or Member State, or unlawful or infringement of the provisions of the Treaty, to request the Court to determine the legality of such act, directive, decision or regulation.

6. The Common Market, which Member States have established exists within a system of agreed rules embodied in the Treaty. The Common Market will be properly realized if Member States abide by those rules and expeditiously implement decisions collectively taken. The system will, therefore, endure only if the implementation of those rules is supervised by an independent court hence the establishment of the Court of Justice. The stronger the Court of Justice, the stronger the foundation upon which the Common Market is built.

Contribution of the Court to the integration process

7. Not only is the Common Market a creature of the law, but it pursues its aims exclusively through a new body of law, Common Market law, which is independent, uniform in all the Member States of the Common Market, separate from and yet superior to national law, and many of whose provisions are directly applicable in all the Member States.

8. Like any true legal system, the Common Market legal system needs an effective system of judicial safeguards when the law is challenged or must be applied. The Court of Justice, as the judicial organ of the Common Market is the backbone of that system of safeguards. Its Judges ensure that the law is not interpreted and applied differently in each Member State, that as a shared legal system, it remains a Common Market system and that it is always identical. In order to fulfill that role, the Court of Justice has jurisdiction to hear disputes to which Member States, the Secretary General, residents of Member States (individuals and legal persons) may be parties.