The Role of African Community Courts in Regional Integration

poses significant problems for individuals. Besides, a judge with international law background can consider international norms in his/her decisions. In this regard, Article 20 of the ECOWAS Court Protocol (unlike the COMESA and EAC treaties⁴⁶¹) takes into effect the Article 38 of the Statute of International Court of Justice (ICJ) in its decision-making. Likewise, Article 21(1) of the SADC Tribunal Protocol enjoins applying ‘general principles and rules of public international law as well as rules and principles of the law of states.’ Indeed, bringing such visions beyond the national courts at regional level would be of significance.

Republic of Kenya v. Coastal Aquaculture,⁴⁶² is a case example showing that in Africa, exhausting local remedies can be problematic for individuals particularly when it involves property rights. According to the facts of the case, the applicant, for over eight years, had not been able to obtain compensation in regard to the compulsory acquisition of his land. While the COMESA court sympathized with his plight, it held that he needed to yet exhaust local remedies as he lacked locus standi. This outcome turned out to be unpleasant to the applicant.

A great portion of cases decided at the level of community courts particularly in ECOWAS and COMESA have been concerning the staff cases or cases involving the violation of human rights.

However, there have been some cases involving economic integration in which the jurisprudence of the COMESA, ECOWAS, EAC and SADC courts reflects a myriad of legal problems.⁴⁶³

Another famous example reflecting the inefficiencies of property rights in Africa would be the case of Mike Campbell v. Republic of Zimbabwe.⁴⁶⁴ This case has been the best instance of community court being confronted with a major national policy of a state in Africa; in this instance: Zimbabwe’s controversial land-reform policy. In this case, the applicant (Mike Campbell) filed an application at the SADC Tribunal to challenge the compulsory acquisition by the respondent (Republic of Zimbabwe) of their agricultural land. Simultaneously, the applicant filed for an interim measure preventing the Respondent from removing or allowing to removal of the applicant from their land. The SADC Tribunal held that the Zimbabwean government violated the SADC’s treaty by denying access to the courts and engaging in racial discrimination against white farmers whose lands had been confiscated under the land reform program in the country. On 20 June 2008, the applicant reported the failure of Respondent to comply with the tribunal decision concerning the interim measure. Thus, the Tribunal reported the finding

461 The absence of such a provision in the COMESA and EAC treaties has, however, not prevented their respective courts from relying on international law.

462 Republic of Kenya v. Coastal Aquaculture [2003] 1 East Afr. LR 271.

463 Oppong, p. 133.

464 The facts of the case can be found here: https://en.wikipedia.org/wiki/Mike_Campbell_(Pvt)_Ltd_v_Zimbabwe

to the Summit, pursuant to Article 32(5) of the SADC Tribunal Protocol.

Moreover, according to the applicants, the acquisitions were inconsistent with articles 4(c) and 6(2) of the SADC Treaty. These articles enjoin that member states are obliged to act in accordance with the principles of democracy, human rights and the rule of law, while prohibiting them from discriminating against any person on grounds of race.⁴⁶⁵

Also, on the issue of jurisdiction, the Tribunal, citing Article 15(1) of the SADC Tribunal Protocol, found that it does have jurisdiction on dispute concerning human rights, democracy and the rule of law which were indeed raised in the application.⁴⁶⁶ The applicant also sought an order for the lands to be preserved pending the final determination of the application. After making sure that it was a case between natural and legal persons with that of the state,⁴⁶⁷ there came a question of interpretation of the treaty⁴⁶⁸ and as such the tribunal had jurisdiction to grant interim relief.⁴⁶⁹

The Tribunal examined as to whether the applicants exhausted local remedies as required by the SADC Tribunal Protocol.⁴⁷⁰ The respondent’s counsel asserted that the same matter is pending before the Supreme Court of Zimbabwe. Nonetheless, the Tribunal, with no further reasoning held that the issue concerning the exhaustion of local remedies may not be raised in the present interlocutory application, as the applicants were simply seeking an interim measure for protection. However, the matter was raised in the substantive case.⁴⁷¹

Examining the law in details —including national and international— as well as the facts, it was established that the applicants had been indeed deprived of their lands without having the right of access to the courts and to a fair hearing. Hence, the Tribunal held that it was breaches of article 4(c) of the SADC Treaty. As well, it held that even though Amendment 17 has not explicitly referred to ‘white’

farmers, its implementation has in fact affected white farmers only and therefore would constitute indirect

465 Oppong, Richard Frimpong. “Legal Aspects of Economic Integration in Africa.” Cambridge University Press, 2011, pp. 139-140.

466 Osiemo, Onsando. “Lost in Translation: The Role of African Regional Courts in Regional Integration in Africa.”

Legal Issues of Economic Integration 41, no 1 (2014):p. 108.

467 Oppong, p. 140; referring to “SADC Tribunal Protocol, art. 15(1). The tribunal has no jurisdiction in action between natural and legal persons. Nixon Chirinda v. Mike Campbell (Pvt) Ltd, SADC (T) Case No. 09/08 (SADC Tribunal, 2008); and Albert Fungai Mutize v. Mike Campbell (Pvt) Ltd, SADC (T) Case No. 8/08 (SADC Tribunal, 2008).”

468 Ibid, with reference to: “Art. 14”.

469 Ibid, With reference to: “Art. 28.”

470 Ibid, with reference to: “Art. 15(2).”

471 Oppong, p. 140.

discrimination.⁴⁷²

The Tribunal finally and by unanimity held that: “ the Respondent is directed to take all necessary measures, through its agents, to protect the possession, occupation and ownership of the lands of the Applicants, except for Christopher Mellish Jarret, Tengwe Estates (Pvt) Ltd. and France Farm (Pvt) Ltd.

that have already been evicted from their lands, and to take all appropriate measures to ensure that no action is taken, pursuant to Amendment 17 (2005), directly or indirectly, whether by its agents or by others, to evict from, or interfere with, the peaceful residence on, and of those farms by, the Applicants, and…by unanimity, the Respondent is directed to pay fair compensation, on or before 30 June 2009, to the three Applicants, namely, Christopher Mellish Jarret, Tengwe Estates (Pvt) Ltd. and France Farm (Pvt) Ltd.”⁴⁷³

In Zimbabwe, both political and judicial reacted to the decisions unfavorable and even hostile as the executive condemned it (including the President and Attorney General) while the High Court declined to enforce it.⁴⁷⁴ In two separate rulings –the second given after non-compliance with the first – the Tribunal reported the non-compliance matter to the Summit in accordance with article 32(5) of the SADC Treaty for it to take ‘appropriate action’.⁴⁷⁵ No action has been taken to date.⁴⁷⁶

The above case example reaffirms the connotations that Acemoglu and Robinson had vis-à-vis Zimbabwe as a relatively challenging example among the economics in Africa. It shows the lack of proper relation that should have been established between the courts structures in their national and regional contexts. In fact, the persistence of the old institutions has kept its shadow over the legal system hindering as such a dynamic mechanism that could solve the very fundamental property rights within their structure. The jurisprudence of the community courts through the above decisions and judgments shows the steps that ought to be taken and the role that—community as well as national— courts need to play in Africa’s economic integration processes.⁴⁷⁷

472 Noteworthy to mention that Mike Campbell, his wife Angela, and their son-in-law Ben Freeth were kidnapped, taken to an indoctrination camp and beaten by thugs on 29 June 2008. Campbell died on 6 April 2011; his family stated he died from complications of the 2008 beating.

473 http://www.worldcourts.com/sadct/eng/decisions/2008.11.28_Campbell_v_Zimbabwe.htm (Last Paragraph).

474 Oppong, p. 141; referring to: “Gramara (Pvt) Ltd v. Government of the Republic of Zimbabwe, HC 33/09 (Zimbabwe, High Court, 2010)”.

475 Ibid, p. 142, referring to: “William Michael Campbell v. The Republic of Zimbabwe, Case No. SADC (T) 03/2009 (SADC Tribunal, 2009); and Fick v. The Republic of Zimbabwe, Case No. SADC (T) 01/2010 (SADC Tribunal, 2010).”

476 Oppong, p. 142.

477 Ibid, referring to: “Jackson (2003–4).”

Moreover, Douglass North’s emphasis on the essence and significant status of property rights is well shown in this case. There are in fact many similar cases thrown at African Community Court even though there are not alone dealing with such cases. Yet, African courts, happily, have the rich experiences of other courts working on issues of regional and international economic law, such as the ECJ, WTO Panels and Appellate Body, to take the examples from. Nonetheless, they should eventually seek their own unique regional models as all this just furnishes the ground with relevant legal examples and experiences that can be useful for regional integration as they are to set examples too applicable to the MENA region.

Last but not least, despite the fact that there are a great amount of reported treaty infringements in African RTAs (Regional Trade Agreements), in particular Non-Tariff Barriers (NTBs), there are few trade disputes mechanisms, and infringement actions in the African Regional Courts. In brief, we can refer to four possible explanations for this phenomenon: 1- Preference of Diplomacy methods, 2- Low-level of Trade, 3- Unwillingness of the Secretary General of the RTAs in proceeding action, and 4- Weak sanctioning provisions.⁴⁷⁸ In short, from all the above discussions it can be asserted that in fact the legal and institutional structure and performance are weak in majority of states in Africa.