An appraisal of the effectiveness of the common market for eastern and southern africa(COMESA) court of justice as a trade dispute settlement body

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Mapani, Christopher
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The study aimed at appraising the effectiveness of the COMESA Court of Justice with regard to its role of resolving trade disputes. The Court was established under the 1994 COMESA Treaty to interpret and resolve all disputes arising from the interpretation and application of the COMESA Treaty. It was modelled after the European Court of Justice. But despite it having been operational for over 4 years, trade disputes among COMESA member states have persisted. It is in view of this that the study sought to ascertain the effectiveness of the Court. The study revealed a lack of confidence in the Court. There is ostensible reluctance to refer matters to the Court. The lack of confidence has resulted in the Court not being considered a priority. This was manifest in the erratic funding to the Court resulting in it having only one permanent member of staff and operating on adhoc basis. The situation is exacerbated by the fact that the preoccupation of the COMESA Secretariat seems to be deepening economic integration. This, unfortunately, suggests a lack of appreciation at the Secretariat of the critical role that the Court could play even in the integration process itself. In as far as referring matters to the Court is concerned, however, the Secretary General is frustrated by unnecessary procedural requirements. Further, there is lack of awareness about the Court's existence in the private sector. Equally, a number of persons that could be instrumental in making the Court active lack standing before the Court. These include Non-Governmental Organisations, associations and groups of individuals. On the other hand, though natural and legal persons can sue, they are not themselves amenable to the Court. The Court's effectiveness is also hampered by the fact it was tailored towards government-controlled economies. This, however, is no longer the case as almost all COMESA member states have implemented privatisation programmes. Unfortunately, unlike the European Court of Justice, the COMESA Court has not been reformed to bring it in line with modern economic trends. Further, the Treaty was poorly drafted. It has a lot of 'grey' areas, omissions, contradictions and unnecessary requirements. There are many provisions in the Treaty that the Court will have to interpret. It would appear, nonetheless, that judges enjoy too many discretionary powers which obviously import uncertainty. On a positive note, however, the Court has highly qualified judges and is fairly independent. In addition, the law applicable is fairly certain. In conclusion, is was evident that the Court could be very instrumental in building confidence in COMESA as an institution and therefore needs to be supported.
Regional trade , Trade Justice (International)