Regional integration is frequently described using economic concepts like market access, trade liberalisation, investment flows, and the elimination of non-tariff barriers. Yet, integration remains effective only when obligations formed at a regional level can be legally interpreted, enforced, and resolved through disputes, even at a national level.
Zambia’s position within the Common Market for Eastern and Southern Africa (COMESA) makes the enforcement of regional legal standards especially critical. As a member, Zambia operates under a shared legal and economic system that shapes trade trends, foreign investment, market competition, financial policies, and access to markets. The COMESA Court of Justice plays a key role in transforming regional commitments from political declarations into legally binding obligations that member states must uphold.
The COMESA Court of Justice
The COMESA Court of Justice was created under Article 19 of the COMESA Treaty as the organization’s judicial authority. Its primary function is to ensure that the treaty’s provisions are interpreted and applied correctly. The court handles disputes submitted under the treaty’s framework, including cases where one member state accuses another of failing to meet its obligations.
Article 26 of the treaty holds special significance because it permits individuals and businesses within COMESA member states to challenge government actions, regulations, directives, or COMESA decisions they believe violate the treaty. This provision is vital for ensuring fair access to justice, as it allows private entities—such as corporations and investors—to seek remedies through the regional court when appropriate.
Before approaching the COMESA Court, however, claimants must first pursue available domestic legal options if their dispute involves a member state. The regional court does not replace national courts but instead works alongside them, ensuring consistent application of COMESA law across all participating countries.
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Domestication and Regional Alignment
Zambia formally joined the COMESA Treaty on December 8, 1994, thereby accepting its regional and international legal responsibilities. However, Zambia generally follows a dualist approach to international law, meaning treaty obligations do not automatically become directly enforceable in domestic law merely by virtue of ratification.
For treaty provisions to take legal effect within Zambia, they must be formally incorporated through legislation or another recognized legal process. The Ratification of International Agreements Act No. 34 of 2016 outlines how international agreements are ratified and integrated into domestic law, defining domestication as the method of converting such agreements into legally enforceable domestic rules.
Unlike domestic laws, the COMESA Court’s authority stems directly from the treaty itself. As long as the treaty grants the court jurisdiction and procedural conditions are satisfied, cases can proceed before it. Zambia’s regional dispute-resolution system must be viewed alongside its national laws governing trade, investment, and competition.
The Competition and Consumer Protection Act No. 24 of 2010 serves as Zambia’s main legislation on fair trade and consumer rights. It establishes the Competition and Consumer Protection Commission and addresses issues like anti-competitive agreements, market dominance abuses, mergers, unfair business practices, and consumer protections.
The Investment, Trade and Business Development Act No. 18 of 2022 aims to boost trade, investment, exports, industrial growth, and business expansion while acknowledging Zambia’s role in regional markets like COMESA. Though it does not grant the COMESA Court direct jurisdiction, the law reflects Zambia’s commitment to aligning with regional economic integration efforts.
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A useful example of the COMESA Court’s role in trade disputes is the case of Polytol Paints & Adhesives Manufacturers Co. Ltd v Republic of Mauritius, which illustrates how a private company may use the COMESA Court to challenge trade-related measures allegedly inconsistent with COMESA obligations.
The COMESA Court of Justice has a First Instance Division and an Appellate Division. Appeals lie to the Appellate Division on limited grounds, namely points of law, lack of jurisdiction, or procedural irregularity. An appeal is therefore not a full rehearing of the matter. Proceedings before the court are commenced by filing a reference with the registrar, which must contain the parties’ details, a concise statement of facts, the relief sought, supporting documents, witness statements where applicable, and proof of authority to act.
The COMESA Competition Commission plays a significant role in regional competition and consumer-protection enforcement. It provides a specialized regional mechanism for mergers, restrictive business practices, abuse of dominance, unfair trade practices, and consumer-protection matters affecting more than one COMESA member state. The Competition and Consumer Protection (Amendment) Act No. 21 of 2023 strengthens the framework by expressly incorporating the COMESA Competition Regulations in relation to economic activity that impacts Zambia and has an effect in at least two COMESA member states.
Enforcement and Procedure
Where the applicant is a company, proof of legal existence and authority to commence proceedings will also be required.