Balancing Exhaustion of Domestic Remedies and State Sovereignty: A Comparative Analysis between the East African Court of Justice and the COMESA Court of Justice

This article examines the principle of exhaustion of domestic remedies within regional complaint mechanisms through a comparative analysis of the East African Court of Justice and the COMESA Court of Justice. Although both courts were established to promote the rule of law and enhance access to justice, their approaches to the application of the exhaustion of domestic remedies differ significantly. The East African Court of Justice does not enforce the rule of exhaustion, while the COMESA Court of Justice mandates that domestic remedies must be fully pursued before a case can be brought before it. The article contends that while the East African Court of Justice’s rejection of the exhaustion principle ostensibly facilitates access to justice, it simultaneously undermines state sovereignty and has led to institutional resistance, political backlash, and amendments to treaties that limit the Court’s jurisdiction. In contrast, the COMESA Court of Justice’s adherence to the exhaustion of domestic remedies aligns more closely with international standards and helps to lessen tensions related to sovereignty. The article concludes that neither absolute exclusion nor rigid enforcement of exhaustion of domestic remedies offers a sustainable model. The paper reaches this conclusion by employing a comparative doctrinal methodology and a jurisprudential legal analysis of legal instruments and case law that analyse the legal framework governing the two courts. It recommends the adoption of a balanced and context-sensitive approach that aims at strengthening domestic judicial systems and fostering constructive engagement between regional courts and member states.