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The East African : Mar 23rd 2015
The EastAfrican 38 REGIONAL COURT OF JUSTICE Comesa court now relocates to Khartoum amid funding challenges The inaugu≥ation comes at a time when t≥ade disputes a≥e ≥ising By JULIUS BARIGABA The EastAfrican T he recent inauguration of a $5 million complex in Sudan housing the Common Market for Eastern and Southern Africa’s Court of Justice, is expected to facilitate the administration of justice and bolster trade in the region, coming at a time when traderelated disputes are on the rise. The Court, inaugurated on March 5, was previously hosted at the Comesa Secretariat in Lusaka, Zambia, awaiting the completion of its official residence in Khartoum. However, there are fears that the Court’s operations may be hampered by the funding challenges that Africa’s biggest trading bloc continues to face, resulting in its dependence on donors who take care of more than 80 per cent of the budget, as member states often fail to honour their obligations on time. “The Court needs funding if it is to maintain its independence and perform as required… I, therefore, urge all member states to make their contributions promptly,” said Comesa Secretary General Sindiso Ngwenya. Before the end of last year, for example, the Comesa Secretariat proposed a consolidated budget of $64.4 million for 2015 — a marginal increase from the $64.2 million for 2014 — to be raised from member states and donors. According to Assistant Sec- retary General for Finance and Administration Nagla El Hussainy, member states had raised only $8.8 million by the end of last year. Moreover, no donors have come on board as yet, Comesa public relations chief Mwangi Gakunga told The EastAfrican via an e-mail. “There are challenges in terms of late subscriptions by some member states and arrears owed in their assessed contributions to the Court, which restrict the implementation of some of its programmes. In addition, the Court does not have donor support,” said Mr Gakunga. He added that while funds raised by member states are enough to pay the 12 judges of the Court and staff, other key The court needs funding if it is to maintain its independence and perform as required.” Sindiso Ngwenya, Comesa Secretary General Delegates from the 19 member countries that make up the Common Market for Eastern and Southern Africa attend a summit on February 26, 2014, in Kinshasa. Picture: AFP activities of the Court would be left without funding. Member states’ assessed contributions for 2014 to fund the court’s operations stood at about $1.6 million each. For instance, from its new base in Khartoum, the Court is keen to take on outreach programmes within the 19 member-state bloc. Officials argue that there are many trade disputes within the Comesa region, but due to lack of information on the Court’s operations, only a few are brought before it. Top on the list is the long- running sugar war being waged by millers, traders and exporters within Comesa, seeking to access the Kenyan market, which the latter has resisted. Another old dispute that is yet to find its way to the Court of Justice is Egypt’s refusal to comply with Comesa rules of origin that provide for a 35 per cent value added threshold on exports within the bloc; instead, Egypt insists on a 45 per cent value addition requirement. There is also the plunder and theft of Congolese minerals and other natural resources, which the Kinshasa government has accused some Comesa member states of facilitating; there are also disputes arising out of countries’ overlapping membership in more than one trade bloc as well as the continued existence of non-tariff barriers. “With the new Court, the budgetary requirement will certainly rise… The focus this MONEY MATTERS Before the end of last year, the Comesa Secretariat proposed a consolidated budget of $64.4 million for 2015. This was a marginal increase from the $64.2 million for 2014. The money was to be raised from member states and donors. But according to Assistant year will be on publicising the Court because part of the reason for the few cases filed is the lack of information on its operations,” said Mr Gakunga. Judges Five of the 12 Comesa Court of Justice judges sit in the Appellate Division and seven in the Court of First Instance. Judge President Justice Nzamba Kitonga of Kenya heads the Appellate Division while Principal Judge Justice Professor Sam Rugege of Rwanda is in charge of the Court of First Instance. However, Zambia’s Lombe Chibesakunda will replace Justice Kitonga as president of the Court when his term, alongside that of the other judges, ends in June. She becomes the first female judge president of the Comesa Court. Given that there are few dis- putes brought before the Court — established 16 years ago — it has no backlog of cases. This year, the Appellate Division disposed of two disputes that were before it. The first was an application seeking an advisory opinion on immunities under the Comesa Secretary General for Finance and Administration Nagla El Hussainy, only $8.8 million had been raised from member states by the end of the year. Member states’ assessed contributions for 2014 to fund the court’s operations stood at about $1.6 million each. treaty, delivered on February 5, and a day later, the Republic of Malawi versus Polytol Paints and Adhesives Manufacturers Ltd, which was settled out of Court. Both cases have been de- scribed as “landmarks.” In the first, the Court said that immunities and privileges granted to Comesa institutions did not extend to commercial transactions between individuals or entities and the institutions, while the second was an eye-opener for Comesa citizens. It showed that a legal person can take a member state to Court for an alleged breach of trade obligation under the treaty. The Court of Justice has been hosted at the Comesa Secretariat in Lusaka since 1998, but a decision by the Summit in 2003 gave Sudan the right to host it, consistent with the bloc’s treaty that provides that member states host different institutions of Comesa for more ownership and efficiency. The building that houses the Court was constructed and furnished by the government of Sudan. A protest organised by civil society and NGOs in Nairobi in November 2013. Picture: File OUTLOOK MARCH 21-27,2015 NGOs u≥ge taskfo≥ce not to alte≥ secto≥ law By TREVOR ANALO The EastAfrican PROPOSED CHANGES to the Public Benefits Organisations (PBO) Act will open up more avenues for corruption and political interference, civil society leaders warned in a petition to a government-led taskforce at a recent meeting in Nairobi. More than 40 NGOs present- ing their petitions to the PBO Taskforce, which for the past three months has collected views across the country, unanimously called on the Kenyan government to implement the Act without any changes. The NGOs told the taskforce that the proposed changes would create unnecessary mistrust between them and government. “They have generated a sense of a PBO sector under siege, and deepened the deteriorating relationship between PBOs and the national government,” said Houghton Irungu, the associate director for the Society for International Development. The proposed amendments seek to impose a 15 per cent cap on the amount of resources nongovernmental organisations can mobilise externally. Those whose funding is above the statutory limit will be required to get a certificate of “foreign agent,” a tactic used in countries such as Ethiopia and Russia to impede the flow of funds from Western capitals. The government also plans to channel all donor funding through a central agency under its control. But auditors at the meeting told the taskforce that no donor would agree to channel its funding through a single government-controlled agency as it would open up avenues for corruption, and that they are already bound by their own laws not to pass their grants through governments. “Any negative amendments to the Act will see PBOs risk a reduction in accessing foreign funds,” the taskforce heard. The taskforce is expected to compile a report by the end of March that will determine the future of how civil society organisations will operate in the country.
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