Working Papers

Access to justice and curial authority in COMESA, the EAC and ECOWAS

Access to justice and curial authority in COMESA, the EAC and ECOWAS

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20 Aug 2020

Author(s): Dawid van Wyk

Two recurring themes in discussions of the courts of justice of African regional economic communities (RECs) are that African states do not litigate against each other (except when they differ about borders), and the dominance of human rights in the jurisprudence of courts that are supposed to hear trade or commercial disputes, thereby contributing to regional integration.

This Working Paper shares the view that human rights and economic integration should not be seen as antagonist or worse, as mutually exclusive. Strictly speaking, the one does not exist without the other, which does not mean that they always sit comfortably together, or that there are no pitfalls in the prominence of human rights in economic community courts. Ultimately, the question is whether these courts’ formal legal authority evolves into authority in fact, or de facto authority.

The purpose of this paper is to look at recent jurisprudence of the three regional courts – in the Common Market for Eastern and Southern Africa (COMESA), the East African Community (EAC), and the Economic Community of West African States (ECOWAS) – to see whether the scholarly consensus remains: that the dockets of these courts contain few cases involving tariffs, trade barriers, or other integration law issues. The question is whether human rights and trade intersect at some point in the jurisprudence of the courts, and if not, the possible reasons.


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