The court of the Common Market for Eastern and Southern African States (Comesa) has changed its rules to bar the lead counsel for the Comesa bank from appearing in the court.
The move comes shortly after Peter Leon successfully argued an application in the court for the recusal of one of its judges in April.
Leon, a South African, was previously permitted to appear as a representative of a Comesa institution, the Southern African Trade and Development Bank. Under the new rules, only a lawyer entitled to practice before a court of a member state may now appear.
The behaviour of the court reflects negatively on the newly constituted African Union (AU), which is currently establishing its own Court of Justice. Some of the Comesa judges are likely to be appointed to the AU court and perceptions of procedural irregularities may taint the creation of the AU court.
The Comesa court first made headlines after Martin Ogang, former president of the Southern African Trade and Development Bank, sued the bank for alleged wrongful dismissal and damages of $1-million. From the outset, the hearings were riddled with procedural irregularities, with the court riding roughshod over its own rules, seemingly in order to protect Ogang. In an earlier instance the court allowed Ogang’s counsel to fundamentally amend their client’s claim against the bank, giving almost no notice to the bank’s counsel.
The saga began in 1999 when the bank’s board of directors suspended Ogang after an investigation by the forensic accounting firm KPMG found widespread mismanagement of bank funds by Ogang.
A report by the firm to the bank’s board of directors in February 2000 highlighted specific allegations against Ogang that led to his dismissal. The audit found that, among others, Ogang, acting against established bank procedures, had spent $160 000 importing furniture from Washington DC for his official residence in Bujumbura.
The audit also found that Ogang had mismanaged the construction of the bank’s headquarters in Burundi, paying $268 832 to architects who delayed the execution of the project.
The Mail & Guardian first reported in February that court proceedings last October appeared to be predisposed towards Ogang and his lawyers when they were allowed to amend pleadings, and the bank’s lawyers had no opportunity to call witnesses.
In April Leon called for the recusal of two judges — Judge President Judge AM Akiwumi and Judge James Ogoola — claiming they were both compromised by their alleged long-standing friendship with Ogang.
The court ruled that Judge Ogoola had acted improperly and should have recused himself from hearing the case. The proceedings were set aside, but now the goalposts have been moved to keep Leon out.
Meanwhile, Judge Akiwumi will reconstitute the new Bench to hear the case later this year and it is highly probable that he will sit on the Bench.
According to an observer, the court’s latest actions are a ”flagrant abuse of judicial power” and the amended rules are similarly designed to stop the bank’s counsel from creating any last-minute procedural surprises and to prevent a repetition of April’s events.