COMPENDIUM OF AFRICAN SUB-REGIONAL HUMAN RIGHTS DOCUMENTS 2010 Solomon Ebobrah & Armand Tanoh (editors) Compendium of African Sub-Regional Human Rights Documents Published by: Pretoria University Law Press (PULP) The Pretoria University Law Press (PULP) is a publisher, based in Africa, launched and managed by the Centre for Human Rights and the Faculty of Law, University of Pretoria, South Africa. PULP endeavours to publish and make available innovative, high-quality scholarly texts on law in Africa that have been peer-reviewed. PULP also publishes a series of collections of legal documents related to public law in Africa, as well as text books from African countries other than South Africa. For more information on PULP, see: www.chr.up.ac.za/pulp To order, contact: Centre for Human Rights Faculty of Law University of Pretoria South Africa 0002 Tel: +27 12 420 4948 Fax: +27 12 362 5125 pulp@up.ac.za www.chr.up.ac.za/pulp Printed and bound by: ABC Press Cape Town Cover design: Lizette Besaans, the Centre for Human Rights ISBN: 978-0-9814420-9-9 The financial assistance of the Danish Institute for Human Rights is gratefully acknowledged. iii Table of Contents INTRODUCTION vi THE ARAB MAGHREB UNION (AMU/UMA) 1 Treaty Establishing the Arab Maghreb Union (1989) 1 THE COMMON MARKET FOR EASTERN AND SOUTHERN 3 AFRICA (COMESA) Treaty Establishing the Common Market for Eastern and 3 Southern Africa (COMESA) (1993/1994) COMESA Gender Policy (2002) 21 Annex I: Addis Ababa Declaration on the COMESA 34 Gender Policy THE EAST AFRICAN COMMUNITY (EAC) 37 East African Community Treaty (as amended) (1999/2000) 37 The East African Gender and Community Development 58 Framework (2006) Case law of the East African Court of Justice 67 Katabazi and Others v Secretary General of the East African 67 Community and Another (2007) AHRLR 119 (EAC 2007) The East African Law Society and 3 Others v The Attorney General 75 of Kenya and 3 Others (EACJ 2008) INTERNATIONAL CONFERENCE ON THE GREAT LAKES REGION 93 Dar-Es-Salaam Declaration on Peace, Security, Democracy 93 and Development in the Great Lakes Region (2004) Pact on Security, Stability and Development in the Great 96 Lakes Region (2006/2008) Protocol for the Prevention and the Punishment of the 105 Crime of Genocide, War Crimes and Crimes Against Humanity and all forms of Discrimination (2006/2008) Protocol on the Prevention and Suppression of Sexual 115 Violence against Women and Children (2006/2008) Annex to the Protocol On the Prevention and Suppression 120 of Sexual Violence against Women and Children Protocol on the Protection and Assistance to Internally 127 Displaced Persons (2006/2008) Protocol on the Property Rights of Returning Persons 139 (2006/2008) Protocol Against the Illegal Exploitation of the Natural 149 Resources (2006/2008) Protocol on Democracy and Good Governance 157 (2006/2008) The Goma Declaration on Eradicating Sexual Violence and 168 Ending Impunity in the Great Lakes Region (2008) iv THE ECONOMIC COMMUNITY OF CENTRAL AFRICAN 173 STATES (ECCAS) Treaty Establishing the Economic Community of Central 173 African States (ECCAS) (1983/1984) Protocol Relating to the Council for Peace and Security in 179 Central Africa (COPAX) (2000/2004) THE ECONOMIC COMMUNITY OF WEST AFRICAN STATES 183 (ECOWAS) The Treaty of the Economic Community of West 183 African States (1993/1994) Protocol on the Community Court of Justice (1991/1996) 194 Supplementary Protocol Amending Protocol Relating 199 to the Community Court of Justice (2005/2005) Protocol Relating to the Mechanism for Conflict Prevention, 203 Management, Resolution, Peace-keeping and Security (1999/1999) Protocol on Democracy and Good Governance Supple- 220 mentary to the Protocol relating to the Mechanism for Conflict Prevention, Management, Resolution, Peace- keeping and Security (2001/2008) Protocol Relating to Free Movement of Persons, Residence 231 and Establishment ((1979/1980) Supplementary Protocol on the Code of Conduct for the 235 Implementation of the Protocol on Free Movement of Persons, the Right of Residence and Establishment (1985/1989) Supplementary Protocol on the Second Phase (Right of 240 Residence) of the Protocol on Free Movement of Persons, the Right of Residence and Establishment ((1986/1989) Supplementary Protocol on the Implementation of the 248 Third Phase (Right of Establishment) of the Protocol on Free Movement of Persons, Right of Residence and Establishment (1990/1992) Declaration on the Fight Against Trafficking in Persons 252 (2001) Accra Declaration on War-Affected Children in West Africa 256 (2000) Declaration of Political Principles of The Economic 259 Community of West African States (1991) Case law of the ECOWAS Community Court of Justice 261 Ugokwe v Nigeria and Others (ECOWAS 2005) 261 Ké ϊ ta and Another v Mali (ECOWAS 2007) 266 Essien v The Republic of The Gambia and Another (2007) 271 AHRLR 131 (ECOWAS 2007) Manneh v The Gambia (2008) AHRLR 171 (ECOWAS 2008) 278 Koraou v Niger (2008) AHRLR 182 (ECOWAS 2008) 286 Registered Trustees of the Socio-Economic Rights & 298 Accountability Project (SERAP) v Federal Republic of Nigeria & Another (ECOWAS 2009) v THE INTERGOVERNMENTAL AUTHORITY ON DEVELOPMENT 305 (IGAD) Agreement Establishing the Intergovernmental Authority 305 on Development (IGAD) (1996) Protocol on the Establishment of a Conflict Early Warning 309 and Response Mechanism (CEWARN) (2002) Sexual and Reproductive Health and Rights Strategic Policy 315 framework, 2007-2015 (2006) THE SOUTHERN AFRICA DEVELOPMENT COMMUNITY 339 (SADC) Treaty of the Southern African Development Community 339 (1992/1993) SADC Protocol on Combating Illicit Drugs (1996/1999) 346 SADC Protocol on Education and Training (1997/2000) 351 SADC Protocol on Health (1999/2004) 367 Protocol on Tribunal and Rules of Procedure thereof 375 (2000/2001) Protocol on the Control of Firearms, Ammunition and 401 Other Related Materials (2001/2004) SADC Protocol on Politics, Defence and Security 407 Co-operation (2001/2004) SADC Protocol Against Corruption (2001/2005) 413 SADC Social Charter (2003/2003) 420 SADC Protocol on Gender and Development (2008/) 425 SADC Principles and Guidelines Governing Democratic 438 Elections (2004) Declaration of SADC on Gender and Development (1997) 443 An Addendum to the 1997 Declaration on Gender and 445 Development by SADC Heads of State or Government (1998) SADC Declaration on HIV/AIDS (2003) 448 SADC Parliamentary Forum Norms and Standards for 452 Elections in the SADC Region (2001) Model Law on HIV in Southern Africa (2008) 465 Case law of the SADC Tribunal 482 Mike Campbell (Pvt) Limited and Others v Zimbabwe (2008) 482 AHRLR 199 (SADC 2008) Tembani v Zimbabwe (SADC T 2009) 497 CHART OF RATIFICATIONS: ECOWAS 507 CHART OF RATIFICATIONS: SADC 509 vi Introduction In 1981 when the African Charter on Human and Peoples’ Rights (African Charter) was adopted, the foundation for the African regional human rights system was effectively laid. The birth of the African regional human rights system signalled the end of the debate on the question whether regionalism in human rights was a desirable development. With the African Charter as its centre piece, the African human rights system experienced tremendous growth in standard setting and in the creation of supervisory mechanisms. For a long time, the growth of the system remained within the framework of the Organisation for African Unity (OAU) and its successor organisation, the African Union (AU) upon which the African Charter was adopted. Consequently, the continental body practically laid an unspoken claim to and retained exclusive competence in the field of human rights in Africa. Human rights documents of the OAU/AU have been published in the Compendium of key human rights documents of the African Union (Pretoria University Law Press). If there were any disadvantages that resulted from the AU’s exclusive claim to competence in the field of human rights in Africa, there were certainly clear advantages also. One such advantage was the fact that relevant instruments of the African human rights system flowed from a single fountain of authority and human rights actors and stakeholders could access these instruments with relative ease. Within the last two decades, the AU’s claim to exclusive competence in the field of African supra-national human rights has come under challenge from regional economic communities (REC) in different parts of the continent. The RECs which, in most cases were founded as vehicles for economic development through integration have gradually veered into the field of human rights. The invasion by the RECs has occurred as much in standard setting as it has been in the proliferation of supervisory mechanisms, especially by way of the increasing involvement of the judicial organs of the RECs in protection of human rights. Thus, regionalism in Africa’s human rights law and processes has decentralised further into the subregions as represented by the RECs. With this process of decentralisation comes the threat of greater difficulty of access to relevant human rights instruments in the African continent. This is exacerbated by the number of RECs that have involved themselves in some or other form of human rights realisation. As at December 2009, there were at least 14 identifiable regional economic groupings in Africa. Of these, the AU formally recognised eight as building blocks for the African Economic Community (AEC). The RECs recognised by the AU are the Arab Maghreb Union (AMU/UMA), the Common Market for Eastern and Southern Africa (COMESA), the Community of Sahel-Saharan States (CEN-SAD), the East African Community (EAC), the Economic Community of Central African States (ECCAS), the Economic Community of West African States (ECOWAS), the Intergovernmental Authority on Development (IGAD) and the Southern Africa Development Community (SADC). A perusal of the constitutive instruments will show that most of these organisations have included some reference to the promotion and protection of human rights in those instruments. More often than not, such reference to the promotion and protection of human rights in the constitutive instruments have been taken further by way of adoption of human rights instruments or instruments with implication for human rights realisation. Thus, the body of relevant instruments that actors and stakeholders in the field of human rights should be familiar with has increased tremendously. In addition to some of the RECs recognised by the AU, one other subregional grouping, the International Conference on the Great Lakes Region (ICGLR) has made great vii strides in human rights standard setting. All of these international organisations have contributed to the growth of human rights in Africa but they also threaten certainty and access to human rights source documents. It is against the background that knowledge of available standards and mechanisms is crucial for greater enjoyment of the increasing opportunities for remedies for human rights violations that this collection of human rights instrument became necessary. We have identified RECs with budding human rights realisation regimes as well as those with legal frameworks that hold the potential for greater activities in the field of human rights. In order to give the reader an idea of the legal basis upon which human rights activities in each REC is hinged, we have added excerpts of the founding or constitutive instruments of the RECs included in this compendium. The compendium further contains all protocols and declarations of the various RECs that can be termed human rights instruments. We have also included some documents that may not strictly be termed human rights instruments but could be said to have implications for the enjoyment of human rights. Instruments in this latter category include the protocols that set up the judicial organs of the RECs. The compendium also contains some jurisprudence from the judicial organs of some RECs. The cases included have been selected either because they clarify the procedures for the admissibility of human rights cases before the relevant judicial organs or they contain clear pronouncements on substantive rights. The cases included give a fair representation of the growing human rights jurisprudence emerging from these institutions. More human rights cases are available in the African Human Rights Case Law Database, which can be accessed from the web site of the Centre for Human Rights, www.chr.up.ac.za. As much as possible, we have tried to include some information on the dates that the instruments were adopted and entered into force. We have also included explanatory notes on the cases contained in this compendium. It is our hope that human rights practitioners, policy makers, lawyers, academics, law students and all other interested parties will find this compilation easy to use. It is our further hope that this compendium would trigger greater interest in the human rights activities of the RECs in Africa. We are very grateful to the Danish Institute for Human Rights (DIHR) for their generous financial support for this project and to Ulrik Spliid, senior adviser at DIHR, for his suggestions on what should be included in this compendium. We also gratefully acknowledge the kind assistance of Magnus Killander in the compilation and editing process. The painstaking work of Lizette Besaans in the production process is most appreciated. The encouragement and support we got from Frans Viljoen, Director of the Centre for Human Rights, was invaluable. The project of building a continent in which respect for human rights is the norm rather than the exception is a multi-dimensional venture. The involvement of the RECs in the field of human rights is just one of many dimensions. This compendium is a little contribution to encourage that dimension of the project. We hope that the reader will find it a useful tool in furthering respect for human rights on the African continent. Solomon T Ebobrah Armand Tanoh Editor Editor Researcher Researcher Centre for Human Rights, Centre for Human Rights University of Pretoria University of Pretoria March 2010 1 THE ARAB MAGHREB UNION (AMU/UMA) Treaty Establishing the Arab Maghreb Union (1989) Excerpts [The leaders of the member states] Having faith in the solid links that unite the people of the Arab Maghreb and that are founded on a communal history, religion and language; Responding to the profound and firm aspirations of these people and their leaders to establish a Union that further reinforces these existing ties between them and advances the possibility of reuniting all possible means to orient ourselves towards a greater integration; Conscious of the effects that would result from such an integration, and the possibility of an Arab Maghreb Union that could attain a certain significance that would permit it to contribute effectively to a global balance, to consolidate peaceful relations at the centre of the international community and to consolidate international peace and security; Considering that the traditions of the Arab Maghreb Union necessitate tangible realisations and the setting up of common regulations which would concretise an effective solidarity between its members and increase their economic and social development; Expressing their sincere determination to work towards an Arab Maghreb Union which would be an avenue for the realisation of complete Arab unity and a point of departure for a larger union, encompassing other Arab and African states; HAVE RESOLVED THE FOLLOWING: Article 1 A Union called the Arab Maghreb Union is constituted by virtue of this Treaty. Article 2 The Union aims to: • Reinforce the fraternal links that unite the member states and their peoples; • Realise the progress and prosperity of member societies and the defence of their rights; The Treaty establishing the Arab Maghreb Union was adopted in Marrakech, Morocco in 1989 by Algeria, Libya, Mauritania, Morocco and Tunisia. Although Morocco has pulled out of the African Union, the UMA is recognised by the African Union as one of the regional economic communities in Africa. The Treaty of the UMA has been ratified by all the member states. Although it is recognised by the AU as a building block of the AEC, AMU/UMA does not currently have any formal relation with the AU. Website: http://www.maghrebarabe.org The Treaty establishing the AMU/UMA was adopted on 17 February 1989. All the member states have ratified the AMU/UMA Treaty. 2 AMU/UMA • Contribute to the preservation of a peace founded on justice and equality; • Pursue a common political policy in different domains; • Work towards the progressive realisation of the free movement of persons, services, goods and capital. Article 3 The common political policy mentioned in the preceding article has as its goal to put into effect the following objectives: • On the international level, the realisation of a straight forward diplomatic cooperation founded on dialogue; • In the area of defence, the safeguarding of the independence of each member state; • In the area of the economy, the realisation of industrial, agricultural, commercial, and social development of member states and the bringing together of all necessary means to this effect, notably, by establishing common projects and expanding on global and sectoral programs; • In the area of culture, the establishment of cooperation aimed at developing teaching at different levels, that would preserve the spiritual and moral values inspired by the generous teachings of Islam, and to safeguard the national Arab identity whilst endowing itself with the necessary means to realise these objectives, notably for the exchange of teachers and students, and the creation of universities and cultural institutions, as well as institutes of Maghreb research. [...] Article 13 The Union is equipped with a Judicial Authority composed of two judges from each member state, who are designated for a period of six years, of which half are renewed every three year period. This Authority elects its president from amongst its members for a period of one year. The aforementioned Authority has as its competence to rule on disagreements relative to the interpretation and application of the Treaty and agreements concluded under the framework of the Union, that it then submits to the Presidential Council or one of the state parties in the dispute, conforming with the framework of the present Treaty. Its judgments are binding and final. The aforementioned Authority prepares its own statute and submits it for the approval of the Presidential Council. This statute forms an integral part of the present Treaty. The Presidential Council sets up the Judicial Authority and fixes its budget. Article 14 Any aggression against one member state is considered as aggression against the other member states. Article 15 Member states undertake to never allow on their respective territories any activity or organisation which threatens the security, territorial integrity or political system of one of the member states. They agree equally to abstain from forming a part of any pact, military or political alliance, which is directed against the political independence or territorial unity of another member state. [...] 3 THE COMMON MARKET FOR EASTERN AND SOUTHERN AFRICA (COMESA) Treaty Establishing the Common Market for Eastern and Southern Africa (COMESA) (1993/1994) Excerpts Preamble [...] CONSCIOUS of the overriding need to establish a Common Market for Eastern and Southern Africa; BEARING IN MIND the establishment among their respective States of the Preferential Trade Area for Eastern and Southern African States as a first step towards the creation of a Common Market and eventually of an Economic Community for Eastern and Southern Africa; RECALLING the provisions of Article 29 of the Treaty for the Establishment of the Preferential Trade Area for Eastern and Southern African States to the effect that steps should be taken to develop the Preferential Trade Area established by that Treaty into a Common Market and eventually into an Economic Community; RECALLING further the decision of the Authority of the Preferential Trade Area for Eastern and Southern African States taken at its Tenth Meeting held in Lusaka, Zambia from 30 - 31 January, 1992 to transform the Preferential Trade Area for Eastern and Southern African States into a Common Market for Eastern and Southern Africa; INSPIRED by the objectives of the Treaty for the Establishment of the African Economic Community and in compliance with the provisions of Article 28(1) of the said Treaty; DETERMINED to mark a new stage in the process of economic integration with the establishment of a Common Market for Eastern and Southern Africa and the consolidation of their economic cooperation through the implementation of common policies and programmes aimed at achieving sustainable growth and development; RESOLVED to strengthen and achieve convergence of their economies through the attainment of a full market integration; The Treaty of the Common Market for Eastern and Southern Africa (COMESA) was adopted in 1993 to replace the Preferential Trade Area of Eastern and Southern African States (PTA). COMESA is currently composed of Burundi, the Comoros, Democratic Republic of Congo, Djibouti, Egypt Eritrea, Ethiopia, Kenya, Libya, Madagascar, Malawi, Mauritius, Rwanda, Seychelles, Sudan, Swaziland, Uganda, Zambia and Zimbabwe. Website: http://www.comesa.int The Treaty establishing the Common Market for Eastern and Southern Africa (COMESA) was signed on 5 November 1993 in Kampala, Uganda. The Treaty entered into force on 8 December 1994. 4 COMESA HAVING REGARD to the principles of international law governing relations between sovereign states, and the principles of liberty, fundamental freedoms and the rule of law; and In view of further steps which have to be taken in order to advance the economic integration of Eastern and Southern Africa; HEREBY AGREE AS FOLLOWS: [...] Article 1: Establishment and Membership 1. THE HIGH CONTRACTING PARTIES HEREBY establish among themselves a Common Market for Eastern and Southern Africa herein referred to as the Common Market. [...] CHAPTER THREE: Aims and Objectives Article 3: Aims and Objectives of the Common Market The aims and objectives of the Common Market shall be: (a) to attain sustainable growth and development of the Member States by promoting a more balanced and harmonious development of its production and marketing structures; (b) to promote joint development in all fields of economic activity and the joint adoption of macro-economic policies and programmes to raise the standard of living of its peoples and to foster closer relations among its Member States; (c) to co-operate in the creation of an enabling environment for foreign, cross border and domestic investment including the joint promotion of research and adaptation of science and technology for development; (d) to co-operate in the promotion of peace, security and stability among the Member States in order to enhance economic development in the region; (e) to co-operate in strengthening the relations between the Common Market and the rest of the world and the adoption of common positions in international fora; and (f) to contribute towards the establishment, progress and the realisation of the objectives of the African Economic Community. Article 4: Specific Undertakings In order to promote the achievement of the aims and objectives of the Common Market as set out in Article 3 of this Treaty and in accordance with the relevant provisions of this Treaty, the Member States shall: 1. In the field of trade liberalisation and customs cooperation: (a) establish a customs union, abolish all non-tariff barriers to trade among themselves; establish a common external tariff; co-operate in customs procedures and activities; (b) adopt a common customs bond guarantee scheme; (c) simplify and harmonize their trade documents and procedures; (d) establish conditions regulating the re-export of goods from third countries within the Common Market; (e) establish rules of origin with respect to products originating in the Member States; and (f) recognise the unique situation of Lesotho, Namibia and Swaziland within the context of the Common Market and to grant temporary exemptions to Lesotho, Namibia and Swaziland from the full application of specified provisions of this Treaty. 2. In the field of transport and communications: Treaty Establishing COMESA 5 (a) foster such cooperation among themselves as would facilitate the production of goods and facilitate trade in goods and services and the movement of persons; (b) make regulations for facilitating transit trade within the Common Market; and (c) adopt a Third Party Motor Vehicle Insurance Scheme. 3. In the field of industry and energy: (a) eliminate rigidities in the structures of production and manufacturing so as to provide goods and services that are of high quality and are competitive in the Common Market; (b) provide an appropriate enabling environment for the participation of the private sector in economic development and cooperation within the Common Market; (c) co-operate in the field of industrial development; (d) adopt common standards, measurements systems and quality assurance practices in respect of goods produced and traded within the Common Market; and (e) provide an enabling stable and secure investment climate. 4. In the field of monetary affairs and finance: (a) co-operate in monetary and financial matters and gradually establish convertibility of their currencies and a payments union as a basis for the eventual establishment of a monetary union; (b) harmonise their macro-economic policies; (c) remove obstacles to the free movement of services and capital within the Common Market; and (d) recognise the unique situation of Lesotho, Namibia and Swaziland within the context of the Common Market and to grant temporary exemptions to Lesotho, Namibia and Swaziland from the full application of specified provisions of this Treaty. 5. In the field of agriculture: (a) co-operate in the agricultural development; (b) adopt a common agricultural policy; (c) enhance regional food sufficiency; (d) co-operate in the export of agricultural commodities; (e) co-ordinate their policies regarding the establishment of agro- industries; (f) co-operate in agricultural research and extension; and (g) enhance rural development. 6. In the field of economic and social development: (a) harmonise the methodology of collection, processing and analysis of information required to meet the objectives of the Common Market; (b) harmonise or approximate their laws to the extent required for the proper functioning of the Common Market; (c) promote the accelerated development of the least developed countries and economically depressed areas through the implementation of special programmes and projects in various fields of economic development; (d) adopt a regional policy that will look into all possible economic problems that Member States may face during the implementation of this Treaty and propose ways and means of redressing such problems in a manner that will satisfy the conditions of equitable and balanced development within the Common Market; (e) remove obstacles to the free movement of persons, labour and services, right of establishment for investors and right of residence within the Common Market; (f) promote cooperation in social and cultural affairs between themselves; (g) co-operate in tourism and wildlife development and management; 6 COMESA (h) co-operate in the development and management of natural resources, energy and environment; and (i) take, jointly, such other steps as are necessary to further the aims of the Common Market. Article 5: General Undertakings 1. The Member States shall make every effort to plan and direct their development policies with a view to creating conditions favourable for the achievement of the aims of the Common Market and the implementation of the provisions of this Treaty and shall abstain from any measures likely to jeopardize the achievement of the aims of the Common Market or the implementation of the provisions of this Treaty. 2. Each Member State shall take steps to secure the enactment of and the continuation of such legislation to give effect to this Treaty and in particular: (a) to confer upon the Common Market legal capacity and personality required for the performance of its functions; and (b) to confer upon the regulations of the Council the force of law and the necessary legal effect within its territory. 3. Each Member State shall: (a) designate a Ministry with whom the Secretary-General may communicate in connection with any matter arising out of the implementation and application of this Treaty, and notify such designation to the Secretary-General; (b) transmit to the Secretariat copies of all relevant existing and future legislation and its official gazettes; and (c) where it is required under this Treaty, supply or exchange information to or with another Member State and send copies of such information to the Secretariat. 4. The Member States undertake to accord the Common Market and its staff the privileges and immunities accorded to similar international organisations in their territories and in accordance with the Agreement on Privileges and Immunities. Article 6: Fundamental Principles The Member States, in pursuit of the aims and objectives stated in Article 3 of this Treaty, and in conformity with the Treaty for the Establishment of the African Economic Community signed at Abuja, Nigeria on 3rd June, 1991, agree to adhere to the following principles: (a) equality and inter-dependence of the Member States; (b) solidarity and collective self-reliance among the Member States; (c) inter-State cooperation, harmonisation of policies and integration of programmes among the Member States; (d) non-aggression between the Member States; (e) recognition, promotion and protection of human and peoples' rights in accordance with the provisions of the African Charter on Human and Peoples' Rights; (f) accountability, economic justice and popular participation in development; (g) the recognition and observance of the rule of law; (h) the promotion and sustenance of a democratic system of governance in each Member State; (i) the maintenance of regional peace and stability through the promotion and strengthening of good neighbourliness; and (j) the peaceful settlement of disputes among the Member States, the active cooperation between neighbouring countries and the promotion of a peaceful environment as a pre-requisite for their economic development. Treaty Establishing COMESA 7 CHAPTER FOUR: Organs of the Common Market Article 7: Organs of the Common Market 1. There shall be established as organs of the Common Market: (a) the Authority; (b) the Council; (c) the Court of Justice; (d) the Committee of Governors of Central Banks; (e) the Intergovernmental Committee; (f) the Technical Committees; (g) the Secretariat; and (h) the Consultative Committee. 2. The Secretary-General, in consultation with the Bureau of the Council may convene sectoral ministerial meetings to consider and take decisions on technical sectoral issues not having budgetary implications. 3. The decisions of the sectoral ministerial meetings taken in pursuance of the provisions of paragraph 2 of this Article shall take effect and shall be endorsed at the next meeting of the Council following the sectoral ministerial meeting. 4. The organs of the Common Market shall perform their functions and act within the limits of the powers conferred upon them by or under this Treaty. [...] CHAPTER FIVE: The Court of Justice Article 19: Establishment of the Court The Court of Justice established under Article 7 of this Treaty shall ensure the adherence to law in the interpretation and application of this Treaty. Article 20: Composition of the Court 1. Subject to paragraph 2 of this Article, the Court shall be composed of seven Judges who shall be appointed by the Authority and one of whom shall be appointed by the Authority as the President of the Court. 2. The Judges of the Court shall be chosen from among persons of impartiality and independence who fulfill the conditions required for the holding of high judicial office in their respective countries of domicile or who are jurists of recognised competence: Provided that no two or more Judges shall at any time be Nationals of the same Member State. 3. Not withstanding the provisions of paragraph 1 of this Article, the Authority may, upon the request of the Court, appoint additional Judges. [...] Article 23: General Jurisdiction of the Court The Court shall have jurisdiction to adjudicate upon all matters which may be referred to it pursuant to this Treaty. Article 24: Reference by Member States 1. A Member State which considers that another Member State or the Council has failed to fulfill an obligation under this Treaty or has infringed a provision of this Treaty, may refer the matter to the Court. 2. A Member State may refer for determination by the Court, the legality of any act, regulation, directive or decision of the Council on the grounds that such act, regulation, directive or decision is ultra vires or unlawful or an 8 COMESA infringement of the provisions of this Treaty or any rule of law relating to its application or amounts to a misuse or abuse of power. Article 25: Reference by the Secretary-General 1. Where the Secretary-General considers that a Member State has failed to fulfill an obligation under this Treaty or has infringed a provision of this Treaty, he shall submit his findings to the Member State concerned to enable that Member State to submit its observations on the findings. 2. If the Member State concerned does not submit its observations to the Secretary-General within two months, or if the observations submitted are unsatisfactory, the Secretary-General shall refer the matter to the Bureau of the Council which shall decide whether the matter shall be referred by the Secretary-General to the Court immediately or be referred to the Council. 3. Where a matter has been referred to the Council under the provisions of paragraph 2 of this Article and the Council fails to resolve the matter, the Council shall direct the Secretary-General to refer the matter to the Court. Article 26: Reference by Legal and Natural Persons Any person who is 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 of a Member State on the grounds that such act, directive, decision or regulation is unlawful or an infringement of the provisions of this Treaty: Provided that where the matter for determination relates to any act, regulation, directive or decision by a Member State, such person shall not refer the matter for determination under this Article unless he has first exhausted local remedies in the national courts or tribunals of the Member State. [...] Article 29: Jurisdiction of National Courts 1. Except where the jurisdiction is conferred on the Court by or under this Treaty, disputes to which the Common Market is a party shall not on that ground alone, be excluded from the jurisdiction of national courts. 2. Decisions of the Court on the interpretation of the provisions of this Treaty shall have precedence over decisions of national courts. Article 30: National Courts and Preliminary Rulings 1. Where a question is raised before any court or tribunal of a Member State concerning the application or interpretation of this Treaty or the validity of the regulations, directives and decisions of the Common Market, such court or tribunal shall, if it considers that a ruling on the question is necessary to enable it to give judgment, request the Court to give a preliminary ruling thereon. 2. Where any question as that referred to in paragraph 1 of this Article is raised in a case pending before a court or tribunal of a Member State against whose judgment there is no judicial remedy under the national law of that Member State, that court or tribunal shall refer the matter to the Court. Article 31: Judgment of the Court 1. The Court shall consider and determine every reference made to it pursuant to this Treaty in accordance with the Rules of Court, and shall deliver in public session a reasoned judgment which, subject to the provisions of the said Rules as to review, shall be final and conclusive and not open to appeal: Provided that, if the Court considers that in the special circumstances of the case it is undesirable that its judgment be delivered in open Court, the Treaty Establishing COMESA 9 Court may make an order to that effect and deliver its judgment before the parties privately. 2. The Court shall deliver one judgment only in respect of every reference to it, which shall be the judgment of the Court reached in private by majority verdict. 3. An application for revision of a judgment may be made to the Court only if it is based upon the discovery of some fact which by its nature might have had a decisive influence on the judgment if it had been known to the Court at the time the judgment was given, but which fact, at that time, was unknown to both the Court and the party making the application, and which could not, with reasonable diligence, have been discovered by that party before the judgment was made, or on account of some mistake or error on the face of the record. Article 32: Advisory Opinions of the Court 1. The Authority, the Council or a Member State may request the Court to give an advisory opinion regarding questions of law arising from the provisions of this Treaty affecting the Common Market, and the Member States shall in the case of every such request have the right to be represented and take part in the proceedings. 2. A request for an advisory opinion under paragraph 1 of this Article shall be made in writing and shall contain an exact statement of the question upon which an opinion is required and shall be accompanied by all relevant documents likely to be of assistance to the Court. 3. Upon the receipt of the request under paragraph 1 of this Article, the Registrar shall forthwith give notice thereof, to all the Member States, and shall notify them that the Court shall be prepared to accept, within a time fixed by the President, written submissions, or to hear oral submissions relating to the question. 4. In the exercise of its advisory function, the Court shall be governed by the provisions of this Treaty and the Rules of Court relating to references of disputes to the extent that the Court considers appropriate. Article 33: Representation before the Court Every party to a reference before the Court shall be represented by Counsel appointed by that party. Article 34: Acceptance of Court Judgments 1. Any dispute concerning the interpretation or application of this Treaty or any of the matters referred to the Court pursuant to this Chapter shall not be subjected to any method of settlement other than those provided for in this Treaty. 2. Where a dispute has been referred to the Council or the Court, the Member States shall refrain from any action which might be detrimental to the resolution of the dispute or might aggravate the dispute. 3. A Member State or the Council shall take, without delay, the measures required to implement a judgment of the Court. 4. The Court may prescribe such sanctions as it shall consider necessary to be imposed against a party who defaults in implementing the decisions of the Court. Article 35: Interim Orders The Court may, in any case referred to it, make any interim order or issue any directions which it considers necessary or desirable. Interim orders and other 10 COMESA directions issued by the