SADC LA promotes rule of law and protects human rights

October 1st, 2018
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The SADC LA council took place in the afternoon of 17 August where the outgoing President James Banda presented his annual report, which was approved together with the audited financial statements. Front row from left: Fumwathu Guilherme (Councillor), Sashi Nchito Kateka (Treasurer), Vimbai Nyemba (Vice President), Max Boqwana (Incoming President). Back row from left: Stanley Nyamanhindi (SADC LA Chief Exectutive Officer), and Zimasa Mvuzo Mtwecu (SADC LA Management Accountant).

By Mapula Sedutla

The Southern African Development Community Lawyers Association (SADC LA) held its 19th elective annual general meeting (AGM) and conference from 15 to 17 August in Maputo, Mozambique. The well-attended conference was held under the theme: ‘Promoting inclusive legal policy frameworks for sustainable socio-economic development in SADC’.

On 15 August the conference kick- started with the inaugural Pro Bono Conference (PBC) with the launch of the #BeyondBilling campaign. The PBC began with an explanation of why a pro bono network was necessary in the SADC region. A discussion was held on the role of law societies and Bar associations in promoting pro bono in the region. Delegates were afforded the opportunity to discuss and share their experiences and challenges while doing pro bono work. For the full report see p 8.

On the night of 15 August, a welcome cocktail event was held to welcome delegates to the AGM. Ombudsman and former Minister of Justice, Constitutional and Religious Affairs, Dr Isaque Chande, delivered the keynote address. Dr Chande spoke about the importance of lawyers in the region. The cocktail event was an opportune time for delegates to network before the conference began.

During the singing of the Mozambican National anthem at the SADC LA conference, front from left: Outgoing President of SADC LA, James Banda; President of Mozambique, Filipe Nyusi; and President of the Ordem dos Advogados de Mozambique (Mozambican Bar Association), Flávio Menete.

SADC LA promotes rule of law and protects human rights

On 16 August the President of the Republic of Mozambique, Filipe Nyusi, delivered the official opening address of the conference. President Nyusi remarked that the continued existence of the SADC LA is an indication of the legal profession’s commitment to the promotion of rule of law and protection of human rights. He said there should be defining of policies aimed at strengthening public and private institutions that promote development.

Senior Legal Counsel at Google Sub-Sahara Africa Office, Ife Osaga-Ondondo, said that artificial intelligence cannot match human intellect for accuracy in daily fundamental legal work. Ms Osaga-Ondondo highlighted the fact that search engines are not the curators of the information they present, therefore, the public cannot blame search engines for the information that is retrieved. ‘This is like blaming the post office because it sent you a defamatory letter, it makes more sense to take the issue up with the person who sent you the letter,’ she added.

President Nyusi noted that Africa, particularly the SADC region, was a reservoir of natural resources, which have over the years been a source of conflict in the region. He urged lawyers to be the problem solvers in instances when there are problems arising from conflicts for natural resources in the continent. ‘Most of our problems have solutions. The resources demand added responsibility, that’s where lawyers come in, your intervention is key. All citizens of the continent should be able to enjoy the benefits of the natural resources, there is enough for all of us,’ he added.

On the second day of the conference, after the delivery of the opening address a plenary session was held to discuss and unpack the theme of the conference, after which two parallel sessions were held. In the one session ‘State of rule of law in the SADC region and the role of the legal profession’ was discussed while ‘Redefining public interest law/litigation and the rising role of paralegal work as tools for promoting and protecting human rights and the rule of law: Opportunities for the legal profession’ was discussed in the second session.

Former President of the SADC LA and Judge of the KwaZulu-Natal Division of the High Court in Pietermaritzburg, Thoba Poyo-Dlwati, spoke about the reinstatement of the SADC Tribunal.

Rule of law in the region and the role of the profession

During a panel discussion on human rights and rule of law, former President of the SADC LA and Judge of the KwaZulu-Natal Division of the High Court in Pietermaritzburg, Thoba Poyo-Dlwati, spoke about the reinstatement of the SADC Tribunal. Judge Poyo-Dlwati noted that the tribunal, which was suspended in 2010 after making several significant decisions that made the then Zimbabwean authorities unhappy, was to be replaced by a new tribunal with a far more limited mandate. She questioned whether the political leaders in the region would still see any need for the reformatted tribunal. She added that there was an interpretation that the solidarity among the region’s former political leaders had triumphed over the rule of law in the effective dismantling of the SADC Tribunal.

In her view, Judge Poyo-Dlwati, noted that there was a need to revive the SADC Tribunal into the state it was before. She added: ‘The tribunal operated as a crucial institution that gave effectiveness and even legitimacy to SADC governments. In my view, SADC is not complete without it.’

Another panellist, President of the Mozambican National Human Rights Commission, Dr Luis Bitone Nahe, said that it should be borne in mind that the SADC is formulated by countries with different laws and this brings an opportunity for lawyers who want to protect human rights. He added that countries in the region have a legal framework that is good but can be improved on.

Dr Nahe remarked that criminal law in the SADC region does not include the protection of human rights and this is another area lawyers should look into. He added: ‘There are many challenges related to this issue. In some instances, human rights are protected, but the protection is weak. … We have high rates of poverty and human rights violations in the region and it is the duty of lawyers to promote human rights at the highest level.’

The events of the second day of the conference concluded with a SADC LA Women Lawyers Forum, which focused on Mozambican female lawyers working in the energy sector. The Mozambican female lawyers highlighted how they were not discriminated against because of their gender.

Philosopher and Rector of the Technical University of Mozambique, Severino Ngoenha, who spoke about the challenges in access to justice in the SADC region.

Challenges in access to justice in the region

On 17 August, the proceedings of the day began with a keynote address by philosopher and Rector of the Technical University of Mozambique, Severino Ngoenha, who spoke about the challenges in access to justice in the SADC region. Mr Ngoenha noted that lawyers in the region have the capacity to transform the economies of the countries in the region.

Mr Ngoenha said that after the fall of Apartheid, all countries in the SADC region should have been afforded the opportunity for reconciliation, because Apartheid did not only impact South Africa. He added: ‘Reconciliation was necessary and important so that the region could move towards a situation where all the economies in the region can thrive. The region should not be competing amongst itself economically. … If reconciliation had happened within the region, SADC which started as a political organisation, would now be looking at ensuring that the region functions as a community.  … How can we ensure that we live together as a political community that has access to justice? How do we take our different threads and make a common cloth that is beneficial for all in the region?’

Mr Ngoenha noted that it is possible for all in the region to be able to live together as a community so that the region can have stability. ‘A common goal can allow for a common vision for all,’ he added.

Two breakaway sessions were held. One session discussed ‘international commercial arbitration and litigation’, while in the other session ‘electoral legal reform opportunities’ was discussed. Two other breakaway session were held where ‘artificial intelligence’ was discussed in the one; and the ‘role of legal counsel in structuring public private partnerships and infrastructure development deals’ was discussed in the other. In the third and final breakaway sessions ‘judicial independence’ was discussed in the one, and the ‘role of lawyers in sustainable natural resource management’ was discussed in the other.

Former President of the Mozambique Bar Association and member of the International Chamber of Commerce International Court of Arbitration, Dr Tomas Timbane, said that during arbitration, it is important to note that not all countries in the SADC region are English speaking.

International commercial arbitration and commercial litigation

Former President of the Mozambique Bar Association and member of the International Chamber of Commerce International Court of Arbitration, Dr Tomas Timbane, said that during arbitration, it is important to note that not all countries in the SADC region are English speaking. Dr Timbane added that there have been important developments that have been made with regard to arbitration and that lawyers need to have new strategies to make it in the arbitration world. ‘Lawyers need to develop better clauses so that when they negotiate they start on a better footing,’ he said.

Dr Timbane said that there will be instances when arbitration will be conducted in three different languages. ‘If you are an English-speaking lawyer and have to conduct arbitration in Portuguese the translation during that session will be very important,’ he added.

Barrister, Andrew Moran QC, made a presentation, which focused on the private international law of 16 Anglophone African countries. Mr Moran noted that it is important for legal advisers and litigants to know what interim remedies are available in a particular jurisdiction, to ensure protection for themselves and their clients as the litigation proceeds.

Mr Moran said that when a court is confronted with an interim injunction application in Common Law countries, in order to grant the injunction, the court will consider whether –

  • there is a serious question or issue to be tried;
  • the applicant will be adequately compensated in damages; and
  • the balance of convenience favours the grant of the injunction or not.

Speaking about Roman-Dutch Law countries, Mr Moran noted that in order to obtain an interdict, the applicant has to show that –

  • the right, which is the subject matter of the main action and which he seeks to protect by means of interim relief is clear or, if not clear, is prima facie established though open to some doubt;
  • if the right is only prima facie established there is a well-grounded apprehension of irreparable harm to him if the interim relief is not granted and he ultimately succeeds in establishing his right;
  • the balance of convenience favors the granting of interim relief; and
  • the applicant has no other satisfactory remedy.

President of the Mozambican National Human Rights Commission, Dr Luis Bitone Nahe, said that it should be borne in mind that the SADC is formulated by countries with different laws and this brings an opportunity for lawyers who want to protect human rights.

SADC LA AGM

After the SADC LA council meeting, giving his first speech as newly elected SADC LA President, Max Boqwana, questioned why so many people in the region were poor while they lived on the richest piece of land. ‘We know for a fact that there are major projects happening in the region and that money should be going to the people in the region, but that is not the case. As lawyers in the region we need to make an intervention where necessary to ensure that this does not happen anymore,’ he added.

Mr Boqwana noted that, in future, the work of the SADC LA will not be done by committees, but rather, countries will be assigned projects to deal with. He added: ‘We need to pass the baton to the next generation of passionate lawyers and develop them so that they focus on issues of human rights in the region. We need to raise funds for the organisation to ensure that it is sustainable and that we continue to have a community of lawyers in the region.’

To close off the conference a gala dinner was held. Samora Machel, received a Lifetime Contribution to the Development of the SADC Region Award, while Posthumous Outstanding Achievement Awards were awarded to Binta Hazel Tobedza (SADC-LA Exco Treasurer) and Nic Swart (Law Society of South Africa’s previous Chief Executive Officer).

The next SADC LA conference will be held in Zimbabwe.

Mapula Sedutla NDip Journ (DUT) BTech (Journ) (TUT) is the editor of De Rebus.

This article was first published in De Rebus in 2018 (Oct) DR 5.

 

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