What COMESA is and how it works

Article 1 is a closed list

The treaty replaced the Preferential Trade Area for Eastern and Southern African States, whose own Authority had resolved at its tenth meeting, held at Lusaka on 30 and 31 January 1992, to turn the preferential area into a common market. What the drafters then wrote into Article 1 is not a qualification of the kind a trade treaty usually sets. It is a roll.

Paragraph 2 opens membership to the member states of the Preferential Trade Area and lists them in the names they carried in 1993: the Republic of Zaire, the Kingdom of Swaziland, the Federal Islamic Republic of the Comoros. Paragraph 3 adds two states by name, the Republic of Botswana and the Republic of South Africa marked post-apartheid, on such conditions as the Authority may determine. Paragraph 4 is the only opening left after that, and it is geographic rather than economic: the Authority may admit a state named in neither of the preceding paragraphs provided it is an immediate neighbour of a member state.

That clause is why the roster moved when it did. Tunisia and Somalia were admitted at the twentieth summit of the Authority, held at Lusaka on 18 and 19 July 2018. Tunisia's land border runs with Libya, Somalia's with Djibouti, Ethiopia and Kenya, and adjacency is exactly what paragraph 4 asks for.

Angola, Namibia and Tanzania appear in paragraph 2 and are absent from the roster today. Article 191 sets out the way out: one year of written notice to the Secretary-General, the treaty observed in full through that year, obligations surviving termination, and no claim on the assets of the Common Market until the Common Market itself is wound up. Lesotho and Mozambique withdrew in 1997, Tanzania in 2000 and Namibia in 2004.

The annex written for members of another customs union

Annex III is a protocol on what the treaty calls the unique situation of Lesotho, Namibia and Swaziland, three states already bound into the Southern African Customs Union and the Common Monetary Area. It grants them five years of derogation from the provisions on tariff reduction, on non-tariff barriers, on the common external tariff, on most favoured nation treatment and on monetary co-operation, and it preserves everything already done under the two southern agreements. In return the three undertake to report on their progress in getting the other parties to those agreements to extend the same concessions outward.

Two of the three later left. Eswatini stayed, and its record still files the southern customs union alongside this one.

Ten years, and then 2009

Article 45 provides for a customs union established progressively across a transitional period of ten years from the entry into force of the treaty, and Article 47 for a common external tariff on all goods imported from third countries inside the same ten years. The free trade area came first: nine members eliminated their tariffs on goods originating in the region on 31 October 2000, under a reduction schedule adopted in 1992, and Burundi and Rwanda joined the free trade area on 1 January 2004.

The customs union was launched at the summit of the Authority held at Victoria Falls on 7 and 8 June 2009, resting on two instruments, the Council Regulations Governing the COMESA Customs Union and the Common Market Customs Management Regulations. The external tariff was set at zero on raw materials and capital goods, 10% on intermediate goods and 25% on finished goods, the transition was agreed at three years and made extendable to five, and the common list of sensitive products was left to be settled inside that transition. The Secretariat's own brief on the union records that the tariff is harmonised with the East African Community's, and gives that as the reason a state inside both unions does not have to choose between them.

The Yellow Card

Annex II is the part of the treaty a driver can hold. It establishes a compulsory third party motor insurance scheme carried on a single document, the Common Market Yellow Card, and prescribes what is printed on the face of it: the issuing bureau, the insurer, the vehicle, the policy holder, the number of the policy, the serial number of the card, the dates of issue and expiry, and the list of countries in which it is valid. The card is printed in English, French and Portuguese.

Each member state designates a National Bureau to run the scheme in its territory, guarantees that bureau's solvency, and sees that either the government or the bureau lodges at least ESACU 200,000 with its central bank or a designated commercial bank, as a letter of credit or other security, to guarantee performance. A bureau settles claims arising abroad against cards it issued, and claims arising at home against cards issued by the bureaux of other members. The bureaux sit together as a Council of Bureaux, which fixes the form of the card. Where a member's own law makes insurance voluntary, the guarantee the card carries is whatever the law of the country where the accident happened would impose.

ESACU is the unit of account of the Common Market, defined by Article 74 as equal to one Special Drawing Right of the International Monetary Fund.

Settlement, and the currency that was never issued

Article 73 is plainer than most of the treaty. Until a common central bank is established, the members undertake to settle all payments for transactions in goods and services conducted within the Common Market through the Clearing House. Article 75 establishes a Payments Union and a reserve fund for members that cannot cover a net debit balance, and Article 4 states the object those are steps towards: convertibility of the national currencies and a payments union as the basis for an eventual monetary union.

What runs today is the Regional Payments and Settlement System, operated by the Clearing House as agent of the central banks. It nets multilaterally, settles at the end of the day in United States dollars and euro, and uses the Bank of Mauritius as its settlement bank. The Clearing House lists DR Congo, Egypt, Eswatini, Kenya, Malawi, Mauritius, Uganda, Zambia and Zimbabwe as live on the system.

A court a resident can reach

Chapter Five gives the common market a court, and Article 26 gives it a door that most treaty courts keep shut. Any person resident in a member state may refer to the Court the legality of an act, regulation, directive or decision of the Council or of a member state, on the ground that it infringes the treaty, provided that where the act is a member state's the local remedies have been exhausted first. Article 29 makes the Court's rulings on interpretation take precedence over the decisions of national courts, and Article 30 requires a national court against whose judgment there is no remedy to refer a question of interpretation to it.

The Authority chose Khartoum as the permanent seat in 2003 and the Court sat there from 2014. On 22 September 2023 the twenty-sixth meeting of the ministers of justice and attorneys general, at Lusaka, approved a temporary relocation of the registry out of Sudan.

Where else the members sit

Every country here is also in the African Union and the African Continental Free Trade Area. Comoros, DR Congo, Eswatini, Madagascar, Malawi, Mauritius, Seychelles, Zambia and Zimbabwe belong to the Southern African Development Community as well; Burundi, DR Congo, Kenya, Rwanda, Somalia and Uganda to the East African Community; Comoros, Djibouti, Egypt, Libya, Somalia, Sudan and Tunisia to the Arab League.

The standing answer to that overlap is the tripartite arrangement. The agreement establishing a free trade area among COMESA, the East African Community and the Southern African Development Community was launched at Sharm El Sheikh on 10 June 2015, and it came into force on 25 July 2024, the ratification that completed it having been deposited by Angola a month earlier. Angola is named in Article 1 of this treaty as eligible for this common market and is not in it.

One trace of the wider roster survives in the text. Article 185 makes English, French, Portuguese and Arabic the official languages of the Common Market, and the treaty is authentic in the first three. No country on the roster now records Portuguese among its official languages.