Powers and functions of the president and the principal judge of the COMESA court of justice
Under Article 20 of the Treaty the President and other Judges of the Court shall be appointed by the Authority
Under Article 38 of the Treaty the Court shall make Rules of Court which shall, subject to the provisions of this Treaty, regulate the detailed conduct of business of the Court.
- Rule 5 of the Rules of the COMESA Court of Justice provides that the President shall direct the judicial business and the administration of the Court and shall, unless he designates another Judge to do so, preside at its hearings and deliberations of the Appellate Division.
- The Principal Judge shall direct the judicial business of the first instance Division and, unless he designates another Judge to do so, preside at the hearings and deliberations of that Division.
- The President may issue to the Registrar such instructions for the proper administration of the Rules of Court as may be necessary.
- Apart from presiding over hearings and deliberations in all the proceedings in which he takes part the President of the Court also hears Chamber applications unless he decides that a particular interlocutory application shall be heard by the Court.
Under the Rules of the Court the President has wide powers as follows:-
- Under Rule 9 where both the Registrar and the Assistant Registrar are absent or prevented from performing their duties or their posts are vacant, the President shall designate an officer to perform temporarily the Registrar’s duties.
- Under Rule 11 in performing duties regarding the acceptance, transmission and custody of records and publications of the Court, the Registrar shall be under the authority of the President or the Principal Judge.
- Rule 16 provides that the Registrar shall be responsible, under the authority of the President, for the administration of the Court, its financial management and its accounts.
- Under Rule 17 the dates and times of the sittings of the Court shall be fixed by the President.
The dates and length of the sessions of the Court shall be determined by the President, having due regard to the business before the Court.
The Appellate Division of the Court shall sit in plenary session with a quorum of three Judges, while the first instance Division shall sit in plenary session or with a quorum of five or three Judges as the President or the principal Judge may determine in each case in respect of their Division.
- Under Rule 20 the cause list of the Court shall be made by the Registrar with the approval of the President in case of the Appellate Division and with the approval of the Principal Judge in the case of the first instance Division.
- Under Rule 21 subject to any special decision of the Court, its vacations shall be determined by the President who shall publish the days of vacation in each year in the Official Gazette.
During the vacations, the functions of the President shall be exercised at the place where the Court has its Seat either by the President himself, keeping in touch with the Registrar, or by any other Judge designated by the President to take his place. In a case of urgency, the President may convene the Court during the vacations. The President may, in proper circumstances, grant leave of absence to any Judge after consultation with the other Judges.
- Under Rule 29 where an agent is excluded from the proceedings, for misconduct the proceedings shall be suspended for a period fixed by the Presiding Judge in order to allow the party concerned to appoint another agent.
- Under Rule 33 the Principal Judge may on a reasoned application extend the time limit within which the Respondent shall file a defence to the reference beyond one month after service of the reference.
- Under Rule 34 the Principal Judge shall, by order, determine the time limits within which the reply from the Applicant and rejoinder from the Respondent are to be filed.
- Under Rule 37 the Court, the President, the Principal Judge may, upon application by the respondent, order the applicant to provide further and better particulars.
- Under Rule 40 the Presiding Judge, after the witness has given his main evidence, may at the request of the party or of his own motion put questions to the witness.
Subject to the control of the Presiding Judge questions may also be put to witnesses by the representatives of the parties.
- Under Rule 42 the Court, may order that an expert’s report be obtained and such expert shall be under the supervision of a Judge appointed by the President or the Principal Judge.
- Under Rule 46 the Registrar shall keep the record of every hearing and such record shall be signed by the Principal Judge and shall constitute an official record
- Under Rule 48 the Court shall normally deal with the cases before it in the order in which the preparatory enquiries in them have been completed but the Principal Judge may in special circumstances order that a case be given priority over others.
The Presiding Judge may in special circumstances, after hearing the parties, either on
his own initiative or at the request of one of the parties, defer a case to be dealt with at a later date.
On a joint application by the parties, the Presiding Judge may order that a case be deferred.
- Under Rule 49 the proceedings shall be commenced and presided over by the Presiding Judge, who shall be responsible for the proper conduct of the hearing.
- Under Rule 50 the Presiding Judge and the other Judges may in the course of the hearing put questions to the agents, advisers or lawyers of the parties.
- Under Rule 52 after the agents have made their submissions, the presiding Judge shall declare the proceedings closed.
- Under Rule 57 the original of the judgment, shall be signed by the Judges who took part in the deliberations.
- Under Rule 60 any applications to supplement judgement if the Court should omit to give a decision on a specific head of claim or on costs, the application shall be served on the opposite party and the President or the Principal Judge, as the case may be, shall prescribe a period within which that party may file written observations.
- Under Rule 66 the Registrar may, with the approval of the President, amend the scale of legal practitioner’s costs contained in Schedule II of the Rules of Court, from time to time.
- Under Rule 69 the President or the Principal Judge, as the case may be, shall order the case to be removed from the cause list and shall give a decision as to costs where the parties, before the Court has given its decision, reach a settlement of their dispute and intimate to the Court the abandonment of their claims.
If an applicant informs the Court in writing that he wishes to discontinue the proceedings, the President or the Principal Judge, as the case may be, shall order the case to be removed from the cause list and shall give a decision as to costs.
- Under Rule 73 the President or the Principal Judge, as the case may be, may delegate to the Registrar power of signature for the purpose of determining time limits, which pursuant to these Rules, it falls to him to prescribe or of extending such time limits.
- Under Rule 76 the application to suspend the operation of any measures adopted by a Member State or an institution may be granted by the President even before the observations of the opposite party have been submitted and the Principal Judge may vary or cancel his decision even without any application being made by any party.
The Principal Judge shall prescribe a short period within which either party may submit written or oral observations.
- Under Rule 77 the Principal Judge shall decide on the application to suspend the operation of any measure adopted by the Member State or an institution himself or refer it to the Court.
- Under Rule 82 as soon as the application has been filed, the President or the Principal Judge, as the case may be, shall prescribe a period within which the opposite party may file a document containing a statement of the form of order sought by that party and its pleas in law.
- Under Rule 84 where third parties intervene in proceedings, the President or the Principal Judge, as the case may be, shall give the parties an opportunity to submit their written or oral observations before deciding on the application.
The President or the Principal Judge, as the case may be, shall decide on the application by order or shall refer the application to the Court. The President or the Principal Judge, as the case may be, shall prescribe a period within which the intervener may submit a statement in intervention. After the statement in intervention has been filed, the President or the Principal Judge, as the case maybe, shall, where necessary, prescribe a time-limit within which the parties may reply to that statement.
- Under Rule 85 the application for a judgment by default shall be served on the defendant and the President or the Principal Judge, as the case may be, shall then fix a date for the opening of the oral procedure.
- Under Rule 86 after the application to set aside judgment has been served, the President or the Principal Judge, as the case may be, shall prescribe a period within which the other party may submit his written observations.
- Under Rule 88 an application for Revision of a Judgement shall be made in accordance with paragraph 3 of Article 31 of the Treaty within three months of the date on which the facts the application is based came to the applicant’s knowledge.
- Under Rule 90 without prejudice to its decision on the substance, the Court, in closed session, shall, having regard to the written observations of the parties, give in the form of Judgment its decision on the admissibility of the application.
- Under Rule 40 the President or the presiding Judge, as the case may be, shall instruct any person who is required to take an oath or affirmation before the Court, as witness or expert, to tell the truth or to carry out his task conscientiously and impartially, as the case may be, and shall warn him of the criminal liability provided for in his national law in the event of any breach for this duty.
- Under Rule 92, each Party has a right of Appeal to the Appellate Division of the Court.
- Under Rule 112 the President authenticates the Rules of the Court.