THE Common Market for Eastern and Southern Africa (Comesa) Court of Justice has set a limit on trade immunities and privileges, saying such favours were restricted to transactions between member states and the regional body.
BY CHARLES LAITON
Comesa is a regional economic community established by a Treaty in 1994 and brings together 19 countries, with a population of over 400 million, into a co-operative framework for sustainable economic growth and prosperity through regional integration.
In a landmark advisory opinion delivered by the Appellate Division Court on February 5, 2015 sitting in Lusaka, Zambia, the court stated that the immunities and privileges granted to Comesa institutions did not extend to commercial transactions between individuals or entities and the Institutions.
“The immunities and privileges of the Institutions were restricted to transactions between Member States and Comesa”, the court said.
Delivering the advisory opinion, Justices Nzamba Kitonga, Ernest Sakala and Borhan Amrallah stated that the immunities and privileges to be granted to Comesa and its institutions were limited to acts which fell within the objectives of the Comesa Treaty and the respective constitutive charters.
“These immunities and privileges could not be stretched to cover operations outside the objectives of the Comesa Treaty and the constitutive charters of any of the Comesa institutions”, the judges ruled.
The application for the advisory opinion which was filed by Comesa under Article 32(1) of the Treaty, as read together with Rule 107 of the Rules of the Court, sought the opinion of the court as to the applicability and extent of the immunities and privileges to be accorded to various institutions of Comesa that are engaged in any commercial transactions.
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During the hearing of the case Reference No 1 of 2013 the court received written submissions on behalf of Comesa and on behalf of three Member States: Kenya, Uganda and Zimbabwe.
The court also heard from counsel representing Comesa and from the PTA Bank which is one of Comesa’s institutions.
Comesa has various institutions engaged in commercial transactions including the PTA Bank, PTA Reinsurance Company (ZEP-RE), African Trade Insurance Company (ATI), among others, based in different member states.
