(2018) 2 African Human Rights Yearbook
123
Further, in the 2010 High Court case of Regal Pharmaceuticals,229
the petitioner sought to recover monies from the respondent arising
from goods allegedly supplied to the latter between 2007 and 2009. In
this case, the references to COMESA were quite tangential. Part of the
plaintiff’s evidence consisted of annexures, which included a COMESA
Certificate of Origin and a list of goods containing, among others, a
COMESA number. Aside from these, there were no further references
to, nor reliance upon, COMESA law by the respective counsel and the
Judge.
More extensive reference to COMESA law was made in the 2011
High Court case of Pearl Impex (U) Ltd and 2 Others v Attorney
General and Kampala City Authority.230 The plaintiffs, by way of
originating summons, sought the assistance of the High Court with
regard to the proper understanding of the meaning of a ‘foreign
investor’ under Ugandan law, as well as regulatory requirements for the
conduct of trade by such persons. In adjudicating the matter, Judge
Madrama thought that the central questions before the court could not
be adjudicated upon without reviewing a range of other bodies of law,
including COMESA law, germane to the issue of trade and
investment.231 In terms of the COMESA Treaty, one of its major
objectives, under article 3 thereof, was the establishment of a common
market, to spur growth and development, including through the
creation of an environment conducive to transboundary investment.232
As such the Investment Code Act of Uganda had to be read in light of
the objectives of the COMESA Treaty.233 The Uganda Investment
Authority was also duty bound to ensure that Uganda’s legal and policy
framework was consistent with the process of regional integration and
common markets as conceptualised, among others, under the COMESA
Treaty.234
Later, in the 2012 High Court case of Akiphar Pharmaceuticals Ltd
v The Commissioner Customs Uganda Revenue Authority,235 the
plaintiff alleged that the defendant had unlawfully auctioned its sugar,
since the sugar should have been duty-free, having been imported from
Swaziland (a COMESA member state). However, apart from this
passing reference, based on the plaintiff’s pleadings, no further
reference to COMESA or COMESA law appears to have been made by
the parties, and no further reference or reliance on this law was
reflected in the judgment, which turned very much on the provisions of
the EACCMA.236
229
230
231
232
233
234
235
236
n 171.
High Court Civil Suit 3 of 2011 (decision of Judge Christopher Madrama).
At 16.
As above.
At 16-17.
At 20-21.
High Court Civil Suit 366 of 2012 (before Judge Christopher Madrama Izama).
For a summary of Ugandan decisions referring to the EACCMA, see n 172.