Judicial Restraint or Judicial Activism? A Critical Conversation at the CCJ Induction Programme
Nairobi, 01 March 2026: Day Two of the induction programme for judges-elect of the COMESA Court of Justice featured a thought-provoking reflection by a former judge of the Court, Justice Bernard Georges.
In his presentation titled “Judicial Restraint and Judicial Activism in Regional Integration,” Justice Georges examined the distinctive and evolving role of judges in shaping the scope and reach of the regional courts they serve.
Emphasising that judges play a central role in defining the jurisdiction of regional courts, he posed a compelling question:
Will judges play a purely phonographic role, or will they adopt an activist approach in defining their areas of action?
He further challenged the incoming bench to reflect on the limits of judicial authority within regional integration frameworks:
Put differently, should regional courts be constrained by their statutory or Treaty-defined limits, or should they seek to broaden their oversight over Member States in matters concerning individual rights, human rights and the Rule of Law? And if so, should judges lead that development, or leave it to Member States?
The presentation formed part of a knowledge-sharing engagement between former members of the Court and the incoming bench — underscoring a meaningful moment of transition, continuity, and institutional memory for the COMESA Court of Justice.
In addition, the judges-elect were sensitised on several critical themes shaping regional integration, including:
- The Place of Alternative Dispute Resolution (ADR) in Regional Integration
- The World Trade Organization and Regional Integration
- Investment Promotion and Protection in COMESA
These sessions were delivered by Ms Jacqueline Waihenya, Chairperson-Emeritus of the Chartered Institute of Arbitrators (Kenya); Dr Daniel Omoro Achach, Advocate of the High Court of Kenya and International Trade Law Expert; and Dr Wilson Karera, Advocate of the High Court of Kenya and Solicitor of the High Court of Hong Kong SA.
These sessions were delivered by Ms Jacqueline Waihenya, Chairperson-Emeritus of the Chartered Institute of Arbitrators (Kenya); Dr Daniel Omoro Achach, Advocate of the High Court of Kenya and International Trade Law Expert; and Dr Wilson Karera, Advocate of the High Court of Kenya and Solicitor of the High Court of Hong Kong SA.
The second day of the induction programme thus deepened the judges-elect’s appreciation of the delicate balance between judicial restraint and activism — a balance that lies at the heart of regional integration and the effective interpretation and application of the COMESA Treaty.
