THE COMESA COURT OF JUSTICE R A C H E A L K E M I G I S H A T R A D E A D V I S O R C O M E S A S E C R E T A R I A T

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1 THE COMESA COURT OF JUSTICE 1 R A C H E A L K E M I G I S H A T R A D E A D V I S O R C O M E S A S E C R E T A R I A T

2 Vision VISION AND MISSION The vision of the Court is to be a world class court that provides independent, efficient, accessible and fair adjudication of disputes arising from the interpretation and application of the COMESA Treaty. 2 Mission To uphold and maintain the rule of law in the interpretation and application of the COMESA Treaty in furtherance of the integration process.

3 ESTABLISHMENT & COMPOSITION Article 7(c) of the COMESA Treaty cites the COJ as an organ of the Common Market Article 19 and 20 establish the Court and its composition as follows: o 12 impartial and independent Judges appointed by the COMESA Authority 3 Judges must be nationals of COMESA country and no two judges at any one time may be nationals of the same Member State. Court Structure: a) First Instance Division 7 Judges one of whom is the Principal Judge b) Appellate Division 5 Judges one of whom is the Judge President

4 JURISDICTION Art. 23 (1): General Jurisdiction 4 Court has jurisdiction to adjudicate upon all matters which may be referred to it pursuant to the Treaty. Art. 24: Reference by Member States a) Member state vs. member state b) Member state vs. Council c) A Member State may refer for determination by the Court, the legality of any act, regulation, directive or decision of the Council on grounds that the act is ultra vires, unlawful or an infringement of the Treaty.

5 JURISDICTION Cont d Art. 25 Reference by the Secretary General Where SG considers that a Member State has failed to fulfill an obligation or infringed provision under the Treaty 5 Procedure states that Bureau of the Council makes final decision as to whether SG can refer matter to COJ. Art. 26 Reference by Legal and Natural Persons Any person resident in a Member State may refer for determination by the Court the legality of any act, regulation, directive or decision of the council or MS on grounds of unlawfulness of or infringement of the Treaty. NB. Parties must exhaust local remedies first

6 JURISDICTION Cont d Art. 27 Claims by COMESA employees and 3 rd Parties The Court can hear disputes between COMESA and its employees and claims raised by 3 rd parties against COMESA or it s institutions Art. 28 Arbitration Court has jurisdiction over matters arising from: arbitration clauses in contracts to which COMESA or its institutions is a party. Disputes between Member states if under special agreement between states concerned 6

7 JURISDICTION Cont d Art.32 Advisory Opinions The Authority, Council or a member State may request an advisor opinion regarding questions of law arising from the provisions of the Treaty. 7

8 Facts Polytol vs. Mauritius Polytol Paints, a Mauritius based company, on 15 February 2012 brought a case in the COMESA Court against the Government of Mauritius. Complaint was that the Government imposed a customs duty of 40% on its imports of Kapci paints from Egypt from 16 November 2001 up to 20 November 2010, over which period the company paid the duties which it had sought to be refunded but had been denied. 8

9 The court addressed the following issues: 1. Whether Polytol could sue the Government for failing to implement some obligations under the COMESA Treaty 9 Court held that a legal or natural person is only permitted to bring to Court matters relating to conduct or measures that are unlawful or an infringement of the Treaty but not the non-fulfillment of a Treaty obligation by a Member State. The responsibility of bringing a matter relating to nonfulfillment of obligations under the Treaty is reserved for Member States and the Secretary General

10 10 2. Whether the Government of Mauritius acted consistently with the Treaty when it introduced a customs duty on imports of the car paints from Egypt. Court held that Article 46 (which requires reduction & elimination of customs duties by the year 2000) is clear and unambiguous and its terms must be interpreted with their ordinary meaning (as per Art 31 Vienna Convention on Law of Treaties) in the context of the purpose and objective of the treaty to achieve free trade with the COMESA area, and that Mauritius infringed Article 46 by reintroducing duties on Egyptian products including Kapci paints even if it was for the protection of its industries

11 3. Whether individuals who reside in the member states can have an enforceable right under the COMESA Treaty 11 Court held that the content of Art. 26 (reference by legal & natural persons) shows the extent the signatories of the COMESA Treaty have committed themselves to give some space in the COMESA territory not only to the Member States but also to individuals. By giving the residents of any Member State the right to challenge the acts thereof on grounds of unlawfulness or infringement of the Treaty, the Member States have in some areas limited their sovereignty. The proper functioning of the Common Market is, therefore, not only a concern of the Member States but also that of the residents. The Treaty is more than an agreement which merely creates obligations between Member States. It also gives enforceable rights to citizens residing in the Member States.

12 Polytol vs. Mauritius 4. Whether Mauritus could rely upon its bilateral agreement with Egypt which agreed to impose customs duties on imports from Egypt. 12 Court held that the Treaty allows Member States to enter into bilateral agreements with each other or with third states. This should not however, be construed as giving the Member States a right to enter into agreements that defeat the main purpose of the Treaty which they have undertaken to respect.

13 Polytol vs. Mauritius 13 Court Order The COMESA Court issued an order that the Government of Mauritius should refund to the company the customs duties paid for the period from 1 April November 2010 with interest at the rate applied by the courts in Mauritius, and to pay 70% of the costs the company incurred in pursuing the case. Appeal: Mauritius lodged an appeal with the COMESA appellate court which shall be heard in September 2014.