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Locus Standi of Individuals and Non-State Entities Before Regional Economic Integration Judicial Bodies in Africa

Document Cited authorities 1 Cited in Related
Published date01 September 2010
Pages143-169
DOI10.3366/ajicl.2010.0002
AuthorHenry Onoria
Date01 September 2010
INTRODUCTION

An enduring feature of Africa's political and economic landscape in the past 40 years has been the efforts to foster and achieve greater economic (and, in certain instances, political) integration. The efforts have resulted in economic blocs, established under treaty instruments, such as the Arab Maghreb Union (AMU), 1

Treaty instituting the Arab Maghreb Union, 17 February 1989 (hereinafter AMU Treaty).

the Central African Economic and Monetary Community (CAEMC),2

Treaty establishing the Central African Economic and Monetary Community, March 1994 (hereinafter the CAEMC Treaty). The previous integration arrangements existed as the Central African Economic and Customs Union (UDEAC) established on 8 December 1964.

 the Common Market for Eastern and Southern Africa (COMESA),3

Treaty establishing the Common Market for Eastern and Southern Africa, 5 November 1993 (hereinafter COMESA Treaty). COMESA replaced the previous Preferential Trade Area (PTA) established in 1981.

 the East African Community (EAC),4

Treaty for the Establishment of the East African Community, 30 November 1999 (hereinafter EAC Treaty). The EAC originally existed from 1967 to 1977 and, in effect, the Community was largely re-established under the 1999 Treaty.

 the Economic Community for Central African States (ECCAS),5

Treaty establishing the Economic Community for Central African States, 18 October 1983 (hereinafter the ECCAS Treaty).

 the Economic Community for West African States (ECOWAS),6

Treaty establishing the Economic Community of West African States, 28 May 1975 (hereinafter ECOWAS Treaty). The treaty was revised in 1993.

 the Southern African Development Community (SADC)7

Treaty of the Southern African Development Community, 17 August 1992 (hereinafter SADC Treaty). SADC was originally formed on 1 April 1990 as the Southern African Development Co-ordination Conference (SADCC). There was an amendment to the treaty on 14 August 2001.

 and, at the continental level, the African Economic Community (AEC).8

Treaty for the Establishment of the African Economic Community, 3 June 1991 (hereinafter AEC Treaty).

 In fact, the efforts are neither new nor unique to Africa and parallels can be found in other continents or regions of the world, for instance, the Association of South East Asian States (ASEAN), the Caribbean Community (CARICOM), the European Community (EC) and the North America Free Trade Area (NAFTA), to mention but a few

Under the African economic integration treaties, one of the key institutions is the judicial bodies, existing as either Courts or Tribunals. These include the Court of Justice of the Arab Maghreb Union (AMU CJ),9

AMU Treaty, supra note 1, article 13.

the Common Market for Eastern and Southern Africa Court of Justice (COMESA Court),10

COMESA Treaty, supra note 3, article 7(1)(c).

 the Economic Community for Central African States Community Court of Justice (ECCAS CCJ),11

ECCAS Treaty, supra note 5, articles 6(1)(c) and 15.

 the East African Court of Justice (EACJ),12

EAC Treaty, supra note 4, article 23. The functioning of the EACJ is bolstered by rules of procedure: see East African Court of Justice Rules of Procedure, Nov. 2004; East African Court of Justice Arbitration Rules, Nov. 2004.

 the Economic Community for West African States Community Court of Justice (ECOWAS CCJ),13

Protocol on the ECOWAS Community Court of Justice, 6 July 1991 (hereinafter ECOWAS Protocol).

 the Southern African Development Community Tribunal (SADC Tribunal)14

SADC Treaty, supra note 7, article 9. The functioning of the Tribunal (and its rules of procedure) is further provided under the SADC Protocol on Tribunal and Rules of Procedure Thereof, 7 August 2000 (hereinafter SADC Protocol).

 and, at the continental level, a plethora of bodies such as the African Economic Community Court of Justice (AECCJ)15

AEC Treaty, supra note 8, articles 7(1)(e), 18–19.

 and the Court of Justice of the African Union (AUCJ).16

Constituent Act of the African Union, 11 July 2000, article 5(1)(d). The functioning of the AUCJ is formally provided for under the Protocol of the Court of Justice of the African Union, 11 July 2003, article 2 (hereinafter AUCJ Protocol). It is envisaged to merge the AU Court of Justice with the African Court on Human and Peoples' Rights: see Protocol on the Statute of the African Court of Justice and Human Rights, 1 July 2008, annex (hereinafter ACJHR Protocol).

 The constituent treaty instruments spell out the functions of the judicial bodies. Additionally, they stipulate the entities that have the legal capacity (or locus standi) to refer matter to those bodies

This article appraises the locus standi provisions under the regional economic integration treaties, against the backdrop of the recent decisions of the judicial bodies. It examines how the judicial bodies have addressed the locus standi of individuals and non-State entities in the context of the treaty instruments and the regional economic integration processes in Africa.

 <bold><italic>LOCUS STANDI</italic></bold> UNDER ECONOMIC INTEGRATION TREATIES IN AFRICA – AN OVERVIEW

The locus standi before the economic integration judicial bodies in Africa is closely interrelated with the jurisdictional mandate of those bodies. Generally, their jurisdiction – as stipulated with slight variations in the treaty instruments – is in respect of the interpretation and enforcement of treaty provisions and dispute settlement. More specifically, the jurisdiction is in respect of:

interpretation and application of the treaty;17

AMU Treaty, supra note 1, article 13; COMESA Treaty, supra note 3, article 19; EAC Treaty, supra note 4, articles 23, 27(1) and 33(2); ECCAS Treaty, supra note 5, articles 16(2), (3)(c); ECOWAS Treaty, supra note 6, articles 15, 76 (and ECOWAS Protocol, supra note 13, articles 9); SADC Treaty, supra note 7, articles 9 and 16 (and SADC Protocol, supra note 14, article 14(a)); AEC Treaty, supra note 8, article 18(2); AUCJ Protocol, ibid., articles 19(1)(a)–(b); ACJHR Protocol, ibid., articles 28(a)–(b). The primacy of the Courts and Tribunals over the interpretation and application of economic integration treaties (as against any supposed jurisdiction of national courts) has been stated by EACJ and COMESA Court: Prof. Peter Anyang' Nyong'o & 10 Others v Attorney General of Kenya & 2 Others (with Abdurahin Haitha Abdi & 11 Others intervening), EACJ Reference No. 1/2006 (unreported), pp. 19–21; East African Law Society & 4 Others v Attorney General of the Republic of Kenya & 3 Others, EACJ Reference No. 3/2007 (unreported), pp. 44–5; Eastern and Southern African Trade and Development Bank (PTA Bank) & Another v Martin Ogang, COMESA Reference No. 1B/2000 [2001] 1 EA 46, pp. 51–2.

review of legality of the acts, regulations, directives or decisions of the State parties or institutions of the economic blocs where they are impugned as unlawful or an infringement of the treaty;18

COMESA Treaty, ibid., articles 24(2), 26; EAC Treaty, ibid., articles 28(3), 30; ECCAS Treaty, ibid., article 16(3)(a); SADC Protocol, ibid., article 14(b); AEC Treaty, ibid., article 18(3); AUCJ Protocol, ibid., articles 19(1)(d), (f)–(g); ACJHR Protocol, ibid., articles 28(e), (g)–(h).

non-compliance or breach of obligations by State parties;19

COMESA Treaty, ibid., articles 24(1), 25(1); EAC Treaty, ibid., articles 28(1), 29(1); ECCAS Treaty, ibid., article 9(2)(k); AUCJ Protocol, ibid., article 19(1)(f); ACJHR Protocol, ibid., article 28(g).

settlement of disputes between State parties;20

ECCAS Treaty, ibid., article 83; ECOWAS Treaty, supra note 6, article 76(2); AEC Treaty, supra note 8, articles 18(2) and 87(1).

rendering advisory opinions;21

COMESA Treaty, supra note 3, article 32; EAC Treaty, supra note 4, article 36; ECCAS Treaty, ibid., articles 9(2)(l) and 16(3)(d); ECOWAS Treaty, ibid., articles 15, 76 (and ECOWAS Protocol, supra note 13, article 9); SADC Treaty, supra note 7, article 16(4) (and SADC Protocol, supra note 14, article 20)); AEC Treaty, ibid., article 18(3)(b); AUCJ Protocol, supra note 16, article 44; ACJHR Protocol, supra note 16, article 53.

ensuring respect and observance of human rights, democracy and the rule of law.22

EAC Treaty, ibid., article 27(2); ECOWAS Protocol, ibid., article 9; SADC Treaty, ibid., article 4 (and SADC Protocol, ibid., article 17); ACJHR Protocol, ibid., articles 28(c) and 44. Article 27(2) of the EAC Treaty envisages the EACJ having ‘other original, appellate, human rights and other jurisdiction’. A draft protocol to address the original and appellate jurisdiction, human rights jurisdiction and other jurisdiction (including, alternative dispute resolution and revision) of the Court in terms of article 27(2) of the treaty has been in the offing since 2005: see Zero Draft Protocol to Operationalize the Extended Jurisdiction of the East African Court of Justice (May 2005).

 In light of the jurisdictional mandate of the judicial bodies, the treaties (and, in several instances, protocols) grant access and, in effect, locus standi to present references (or such related judicial actions) in respect of jurisdictional matters. Firstly, the treaties provide for references by the State parties.23

COMESA Treaty, supra note 3, article 24; EAC Treaty, ibid., article 28; ECOWAS Protocol, supra note 6, article 9(2); SADC Protocol, ibid., articles 15, 17; AUCJ Protocol, supra note 16, article 18(1)(a); ACJHR Protocol, ibid., articles 29(1)(a).

 Secondly, they provide for references by the institutions and organs of the economic blocs.24

COMESA Treaty, ibid., article 24; EAC Treaty, ibid., article 28; ECOWAS Protocol, id.; SADC Protocol, ibid., articles 15, 17; AUCJ Protocol, ibid., article 18(1)(a); ACJHR Protocol, ibid., articles 29(1)(a).

 These include the top political organs (e.g. the Assembly (or Authority) of Heads of State and Government (AHSG)) and officials (e.g. the Secretary General). Thirdly, in several of the treaty regimes (and,...

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