The SADC Tribunal's Disappointing Rebirth

Kameel Premhid | Sep 09, 2014
The adoption of the newest SADC Tribunal Protocol has sought to rebirth the Tribunal after a long gestation period where it underwent significant review. The latest manifestation indicates that the region’s efforts at taking the rule of law, and regional integration, seriously are nothing short of being stillborn

Introduction 


The SADC Tribunal, in its initial conception, was a ground breaking institution that acted as a regional court of last resort. Its jurisdiction and powers were so far-reaching that it was even entitled to hear individual complaints from citizens within the region where they believed that they had exhausted the domestic remedies that were available to them. The Tribunal’s most notable contribution, to date, has been its human rights rulings – particularly with respect to the land redistribution programme in Zimbabwe.

This, many suggest, is the real reason for its recent relaunch. While the official communiqués of the regional bloc itself and its individual state members may herald the relaunch as a consolidation of a considered review process, many analysts and commentators are less generous.

Nicole Fritz, director of the Southern African Litigation Centre, has written scathingly of the decision in South Africa’s Mail & Guardian:
 
“The review commissioned by the 2010 summit explicitly supports, in its recommendations, the retention of jurisdiction over disputes between natural and legal persons and SADC member states. Nowhere is there a recommendation for the old tribunal to be dissolved and a new protocol adopted. The SADC leaders, however, were not to be detained by the review and recommendations of the independent legal experts they had commissioned. And so they turned instead to their ministers of justice and attorneys general.
 
Sensitive to the hostility felt by the summit for the tribunal but conscious also of the constraints of legality, these officials stood by the recommendation that individuals be given access to the tribunal. Through the media, they proposed that the tribunal’s powers to pronounce on human rights issues be narrowed, in that each state should voluntarily sign on to such jurisdiction. But even this was a bridge too far for the heads of state and government, and they dismissed those recommendations too.” [1]
 
Zimbabwe’s NewDay makes a similar point in an Editorial:
 
“The issue of human rights was at the core of the former tribunal’s mandate. So, one wonders whether the region has been hoodwinked by Zimbabwe to forgo human rights issues all in the name of camaraderie.” [2]

Malawi’s Nyasa Times, noting the reaction of the SADC Lawyer’s Association, also reports that:

“The reopening of the tribunal as an interstate court will impact negatively on the rights of SADC citizens to access justice and to effective legal remedies to disputes,”said Makanatsa Makonese, Executive Secretary of the SADC Lawyers Association, in an emailed response... the proposed limitations on the powers of the tribunal will impact on the regional integration agenda of SADC as well as dampen investor confidence...” [3] 
 

Background and History


As far back as 2013, the HSF has noted, with grave concern, the attempts to shut down the SADC Tribunal. In a series of briefs, the HSF has summarised the changing position of the Tribunal as follows:
 
“(The Tribunal) ruled in 2007 and 2008 that Zimbabwe’s … Land Reform Programme was racist and violated property rights and the right of access to justice… The SADC Tribunal pronounced that Zimbabwe had to pay compensation… Mugabe… simply ignored the Tribunal, later launching a campaign … to further a stance amounting to non-compliance (with) enforceable rulings on human rights violations... the SADC (Heads of State) Summit ordered a review of its functions in 2010, suspended its activities in 2011 and completely disbanded it in 2012...” [4] [5] [6] [7]
 
In 2013, South Africa’s Constitutional Court, in the context of whether property owned by the Zimbabwean Government could be sold in execution in satisfaction of a costs order issued against it by the SADC Tribunal, seemed to offer a glimmer of hope.
 
‘‘In ... Government of the Republic of Zimbabwe v Fick, the HSF detailed how, despite it being shut down, the decisions of the Tribunal could still have an impact. The HSF wrote that ... (the) effect of the (majority) CC judgment is that whilst the Tribunal may no longer exist, its decisions are legal and binding and can be enforced within South Africa. To the disposed farmers it means that something may now be done to restore their dignity as the Zimbabwean Government is finally held accountable under the rule of law ... Regrettably, a few days after the judgment was delivered, the Zimbabwean Government declared the property to be of diplomatic status, thus protecting it from being sold in execution in terms of the Vienna Convention.’’ [8]

When the issue of the Tribunal’s disembowelling was taken on appeal before the African Court of Human and People’s Rights (ACHPR), it ruled that it had no jurisdiction to hear the matter. As the HSF noted: 
 
‘‘… the ACPHR has dismissed the application on the technicality that the APCHR’s jurisdiction does not extend to regional courts. Ben Freeth, one of the applicants, said that: “It is a cop out by the Commission and says that it is ultimately only there to rubber stamp decisions of the EU executive. It has lost huge credibility as a result of this decision.” He added that there is much speculation about the Commission’s decision being influenced by the AU’s decision to appoint Mugabe to a top position in the AU council last year. That development, which puts Mugabe in line to take over the chairmanship of the AU in 2015, coincided with the Commission’s decision.’’ [9]
 
In 2014, the HSF also noted:
“(the) decision of the Tanganyika Law Society (TLS) to sue the Tanzanian Government before its own High Court ... It is clear that this tactic recognises the difficulty faced by international legal institutions which may not be afforded the same protections of independence that courts may have domestically. Thus, attacking the government’s (external) decision based on its (internal) legal obligations, is a logical way around that obstacle. Should the TLS be successful in its litigation, it will represent a significant victory for those who have been objecting to the unlawful action of the Tribunal’s shutdown. It will also be a tactic worthy of replication in the domestic courts of other member states, particularly in South Africa.
 
While it remains doubtful as to what the actual outcome of such successful litigation will be – Tanzania’s courts’ jurisdiction being limited to its sovereign territory – at the very least, it opens the opportunity for adequate (political) pressure to be brought to bear against the government” [10]
 

When Law and Economics Collide


As the HSF noted previously:
 
‘‘(We are) concerned that the rule of law and the protection of human rights yet, again, this seems to not be a priority for African institutions ... As the de-fanging of the SADC Tribunal has shown, it is troublesome that institutions such as those would be undermined so that officials across governments can shield each other from proper and just scrutiny where it is warranted. The Zimbabwean example, particularly, where the only institution that was willing to speak out against the Mugabe regime’s excesses has now been disbanded, is demonstrative of this. The HSF is concerned that, notwithstanding the South African government’s domestic obligations in terms of our Constitution, ... our conduct of foreign policy continues to lack a definitive human rights agenda.’’ [11]
 
While there are obvious reservations about the rule of law, there also seem to be inadvertent issues of economic concern that may also arise out of this decision. 
 
Adekeye Adebajo, Executive Director of the Centre for Conflict Resolution, writing in the Business Day, has given a withering assessment of SADC’s inability to take decisive action, and its failure to implement its own ideas:
 
“SADC seeks to promote regional integration and economic development, eradicate poverty and ensure peace and security in Southern Africa. Decision-making within the institution is, however, centralised in its annual summits and dominated by its heads of state. This tends to promote consensus rather than majority voting, often resulting in decisions being based on the lowest common denominator.
 
Historical loyalties and solidarity among the sub-region’s liberation movements are thus frequently determinant in decision-making. In addition, decisions are sometimes taken in informal sessions outside of formal SADC structures...
 
SADC has adopted more than 30 protocols and declarations to harmonise policies and legislation over the past two decades. Most have been ratified by member states, but implementation and integration into national policies remain weak. Sub-regional leaders must also strengthen the SADC secretariat to promote regional integration.” [12]
 
When this is considered against the wider backdrop of cross-continental integration between African regions, the necessity for strong institutions is underscored further still [13]. As Neville Isdell, Co-Chair of The Investment Climate Facility for Africa has recognised in the case of specialised commercial courts – judicial capacity, and independence, to implement and uphold the rule of law is an essential ingredient to ensure investor confidence [14]. Given Africa’s, and Southern Africa’s, dependence on foreign investment as a source of income, what may be a politically convenient decision may prove to be more fatal than originally thought.  
 

Conclusion


The handling of the SADC Tribunal speaks directly to the issue of governance in South, and Southern, Africa.  Without an independent judiciary that is able to adjudicate and apply the rules without fear or favour, South, and Southern, Africa’s standing at home and abroad is jeopardised.  The rule of law is an important entitlement to all people within the region, and beyond, especially when it is used to hold a government that should protect its people to account.
 
Kameel Premhid
Researcher
Helen Suzman Foundation
 
References
 
[1] http://mg.co.za/article/2014-08-29-quiet-death-of-an-important-sadc-institution 
[2] https://www.newsday.co.zw/2014/08/21/taking-away-sadc-tribunal-powers-bad-governance/ 
[3] http://www.nyasatimes.com/2014/08/15/sadcs-revised-tribunal-aims-to-shut-out-citizens/ 
[4] http://hsf.org.za/resource-centre/hsf-briefs/rip-sadc-tribunal 
[5] http://hsf.org.za/resource-centre/hsf-briefs/the-sadc-tribunal-the-rule-of-power-versus-the-rule-of-law-the-tribunal-tragedy   
[6] http://hsf.org.za/resource-centre/hsf-briefs/the-sadc-tribunal-lives-on...-kind-of 
[7] http://hsf.org.za/resource-centre/hsf-briefs/some-notes-on-sovereignty
[8] Notes 4 – 7.
[9] Ibid.
[10] http://hsf.org.za/resource-centre/hsf-briefs/sadc-tribunal-back-in-the-spotlight 
[11] Note 8. 
[12] http://www.bdlive.co.za/opinion/columnists/2014/08/25/sadc-needs-to-overcome-flaws-to-benefit-region 
[13] http://www.southerntimesafrica.com/articles/10269/Regional-integration-in-SADC--COMESA-and-EAC-hampered-by-lack-of-political-will--/#.VARrG8WSwbU 
[14] http://thinkafricapress.com/economy/reforming-commercial-courts-making-business-easier