The Treaty that underpins the 27-member Community of Eastern and Southern African States (Comesa) contains an appealing provision for ordinary persons, natural or legal, who are involved in a dispute with their government. Article 26 allows them to drag their government before the Comesa Court of Justice (CCJ), the regional court created by the Comesa Treaty. Behind the seemingly straightforward wording of article 26 lies an important qualifier, though.

In Government of the Republic of Malawi v Malawi Mobile Limited,[1] the Appellate Division of the CCJ spoke a definitive word on the circumstances under which a non-state party may approach the CCJ. This was necessary, because the ‘natural or legal persons’-friendly wording of the Treaty could have drawn the CCJ into the pitfall of a supranational court of appeal for each of the Comesa member states. (Subsequent developments suggest that the final word in the Malawi Mobile saga has not been spoken. Unfortunately, full information is limited. According to newspaper reports the CCJ offered Malawi Mobile ‘another chance’[2] by allowing it to amend some of its earlier arguments, while a ruling by the CCJ dismissed a Malawi Mobile objection to the election of two judges of the Appellate Division of the CCJ.[3] A further attempt by Malawi Mobile to have a judge disqualified from hearing its case on account of bias was also unsuccessful. Be that as it may, none of these issues would affect the Appellate Division’s ruling.)

Malawi Mobile, a mobile telephony service provider as its name suggests, was embroiled in a bitter dispute with the Government of Malawi about a license agreement concluded in 2002. The essence of the agreement was that Malawi Mobile would provide ‘public mobile radio telephone services’ in Malawi for 15 years. After almost three years, when Malawi Mobile had not provided the required network for the services, the Malawi Communications Regulatory Authority threatened to revoke Malawi Mobile’s license. Malawi Mobile’s attempt to obtain an extension failed, mainly due to the suspension of the Board of the Regulatory Authority.

The upshot was a High Court action by Malawi Mobile against the Government of Malawi and the Regulatory Authority. The High Court ruled in favour of Malawi Mobile and awarded it almost USD67 million in damages for breach of the agreement by the Government.

The Government lodged a successful appeal to the Malawi Supreme Court of Appeal. In turn, Malawi Mobile approached the Comesa Court of Justice’s First Instance Division (FID) to have the Supreme Court of Appeal’s ruling set aside.[4]

The reason why Malawi Mobile could turn to the FID stems from article 26 of the Comesa Treaty. This article allows natural or legal persons access to the Comesa Court of Justice to review acts of the Comesa 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.’ It is on the word ‘unlawful’ that much of the Appellate Division’s judgment turned.

Equally important was the rider to article 26, that where the act of a member state is complained of, the natural or legal person must first exhaust the domestic remedies available to them.

The FID rejected the Government’s argument that it did not have jurisdiction to hear the matter, and concluded that in terms of the Comesa Treaty it was a so-called original court. In other words, it could judge the matter before it afresh. A crucial factor leading the FID to this conclusion was its understanding of the article 26 requirement about exhausting local or domestic remedies. On the face of it and in the opinion of the FID, Malawi Mobile complied: it had pursued its matter in both the Malawi High Court and the Malawi Supreme Court of Appeal.

Before the matter could be taken further in the FID, the Government of Malawi lodged an appeal with the Appellate Division of the CCJ against the FID’s jurisdictional ruling. In a carefully reasoned judgment, the Court overturned the FID’s decision.

At the heart of the Appellate Division’s decision was its emphatic insistence on the Comesa Treaty as the sole prism through which any matter before it could be judged. This is vital, because any other approach would open the Comesa court system to the risk of becoming something it was not intended to be, namely an extension of Comesa member states’ domestic or national courts. In the Court’s own words: ‘the CCJ cannot be considered as a general supranational court with a task to control the legality of every national legal act unrelated to the Treaty’ (para 47).

The emphatic manner in which the Appellate Division formulated its position once and for all made it clear that the Comesa Court can only hear matters that in one way or another are related to the Comesa Treaty. This was particularly the case where a private party approached the Court.

The Court considered three questions in its judgment. The first was whether it had the required jurisdiction to entertain the matter; the second whether a private party could rely on the generally framed aims and objectives of Comesa to entitle it to a hearing; and finally, whether Malawi Mobile had exhausted its domestic remedies in the context of the Treaty.

The Court answered all three questions in the negative, consistently hammering the point home that its jurisdiction and powers are circumscribed by the Treaty, nothing more and nothing less, and despite words or phrases in the Treaty that might have a different meaning outside the context of the Treaty.

The Court appreciated the fact that a private party’s access to the Court was an element of such party’s participation as a resident of a member state in the affairs of Comesa. Again, though, such participation and the rights involved found their limits in the properly interpreted wording of the Treaty.

The Court spent half its judgment on the first two questions. The other half was taken up by the third, namely the exhaustion of domestic or national remedies.

This was the ultimate stumbling block in Malawi Mobile’s case, and a point not sufficiently appreciated by the FID. Malawi Mobile could not show, first, how the revocation of its license was in any manner related to the Treaty or, secondly, that it had in some way linked its case to the Treaty. It is clear from the way in which the Court dealt with this aspect that Malawi Mobile was blissfully unaware of a requirement that it had to show that its case involved a ‘violation of the Treaty’ (para 51).

It is clear from the judgment that the ‘Treaty connection’ must have surfaced during the process of ‘exhausting local remedies’. In this regard the Court added an important qualification (para 106): ‘True it is that there was no need for [Malawi Mobile] to have expressly raised before the national courts any Treaty issue which it would then seek to raise before the CCJ. It should, however, have ventilated the Treaty issue at least in substance before the national courts. It failed to do so.’

The underlying reason for this requirement is ‘to have given the national courts the opportunity to redress the alleged violation or determine the issue in the first place’ (para 96(a) and (c)). What an ‘in substance’ airing of the Treaty connection could be, drew the following observation from the Court, finding support from two judgments of the European Court of Human Rights: ‘if an applicant has not relied on the Treaty, he must have raised arguments to the same or like effect on the basis of domestic law, in order to have given the national courts the opportunity to redress the alleged violation or determine the issue in the first place’ (para 96(c)).

The ‘in substance’ requirement makes sense. When approaching a domestic court to resolve a dispute with its government, a party might not directly foresee or consider the possibility that the matter could proceed beyond the national courts to the level of the CCJ. This judgment advises a natural or legal person who intends suing a member of Comesa in its national courts to ascertain whether and to what extent their cause might be brought within the ambit of the Treaty. The Court went further and provided a checklist (para 96):

• The national courts must be afforded an opportunity to address any alleged violation of the Treaty by the member state, or to identify a Treaty-related issue

• The violation or Treaty-related issue could be raised expressly or in substance

• Any available and effective remedy that would allow the national courts to address the violation or Treaty-related issue must be exhausted

• Only available and effective remedies need be exhausted in national courts

• It is not adequate that another remedy, removed from a Treaty violation or related matter, is exhausted

• Where the government of a member state raises non-exhaustion, it must show that the applicant has not exhausted a remedy that is effective as well as available.

The following broad conclusions could be drawn from this case:

• The Appellate Division of the CCJ is acutely aware of the fact that it is an international tribunal, a creature of treaty, not an extension of national or domestic legal regimes

• The implication is a recognition by the Court that while the Comesa Treaty aims at integration, it does not negate, undermine or deny the different purposes served by the international regime – Comesa – on the one hand, and the national regimes – member states – on the other

• It stands to reason that the adjudicatory scope of the CCJ is much narrower than that of domestic courts

• As a result, private parties – ‘natural and legal persons’ resident in member states – who want to avail themselves of the possibility to have disputes with their government resolved by the CCJ, should be fully aware of the jurisdictional requirements, especially the exhaustion of remedies with a ‘Treaty connection’, and any other relevant issue as laid down in the Malawi Mobile and other jurisprudence of the CCJ.

• The ruling must be welcomed. It brought certainty and predictability for prospective litigants, and will probably save time and money for everyone involved.

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[1] pdf Comesa Court of Justice (Appellate Division) Appeal no. 1 of 2016 [2018] COMESACJ 8 (delivered 23 April 2017) (4.93 MB) . For an earlier discussion of this case, see Erasmus, G. 2017. ‘The COMESA Court of Justice clarifies important jurisdictional issues’.

[2] https://mwnation.com/comesa-court-gives-malawi-mobile-another-chance/ (17 January 2018)

[3] pdf Malawi Mobile v The Common Market for Eastern & Southern Africa (COMESA) Ref no. 1 of 2017 (delivered 12 August 2018) (1.46 MB)

[4] pdf Malawi Mobile Limited (MML) v Government of the Republic of Malawi Ref no. 1 of 2015 (3.28 MB) .