Constitutionalism in the SADC region discussed at the SADC LA AGM

February 1st, 2014
x
Bookmark

By Mapula Sedutla

The Southern African Democratic Countries Lawyers’ Association (SADC LA) 14th annual conference was held at Lilongwe, Malawi in August 2013. The theme of the conference was: ‘Constitution-making and constitutionalism in the SADC region: Opportunity or illusion for justice, peace and shared values?’ Judges, law society and Bar leaders, legal practitioners, government officials, and representatives from regional and national civil society organisations from 12 of the 15 SADC countries interrogated topical issues under the conference theme.

President of the Malawi Law Society, Mandala Mambulasa, opened the conference by saying that in these hard economic times, for many, it has been a huge sacrifice to attend the conference. He added that, however, in view of the topics lined up, attending the conference was money well spent.

Constitution-making and constitutionalism

During the opening ceremony the main topic of discussion was constitution-making and constitutionalism. Under the topic, the President of the SADC LA, Kondwa Sakala-Chibiya, observed that: ‘A student of the law is taught that a constitution is the supreme law of a sovereign state from which basic rights, obligations and all the laws and policies of the land emanate and with which they all must comply. … Hence the question posed within the conference theme. There can be no justice, peace and shared values without constitutionalism and the rule of law.’ She added that a flawed constitution-making process is a recipe for constitutional instability.

The keynote address was delivered by former President Thabo Mbeki. He began by saying that the question posed by the conference theme is both legal and political. Answering the theme question former President Mbeki said: ‘You ask whether constitution-making and constitutionalism present us with an opportunity for justice, peace and shared values. My immediate answer is – certainly, yes! And if I am asked if the constitution-making process is but an illusion in respect of giving citizens the opportunity to reflect on justice, peace and shared values, my immediate answer would be – certainly not!’

On constitutions former President Mbeki remarked that: ‘Constitutions are reflections of the best that brings us together as nations. Properly crafted, the constitution of a country is that one codicil whose provisions are embraced, protected and defended by all citizens, regardless of their political beliefs, race, class and gender divides, age, ethnicity and religious belief. … The constitution is the one document that all citizens should protect at all times. This can happen only if both the process leading to the adoption and the contents of such constitution are as inclusive as possible.’ He added: ‘I am told that in law school you are taught that a constitution is like a love letter. It expresses the deepest feelings of a nation about itself in the same way that lovers express their deepest feelings in love letters.’

Best practices using IP

Parallel sessions were held on the second part of the first day of the conference. The first parallel session was titled ‘Best practices and emerging trends in corporate law and governance’. During this session, Mwelwa Chibesakunda, partner at Chibesakunda & Co, presented a paper on information technology trends that reduce risk, boost efficiency and enhance good governance in law firms.

Mr Chibesakunda encouraged delegates to embrace technology, quoting Bill Gates he said: ‘The first rule of any technology used in a business is that automation applied to an efficient operation will magnify the efficiency. The second is that automation applied to an inefficient operation will magnify the inefficiency.’

Commenting on the future of time recording and billing, Mr Chibesakunda said that in the future law firms should have –

  • automated budgeting and actuals comparison;
  • key financial information on mobile devices; and
  • semi-automated time capture, based on passive activity tracking.

Mr Chibesakunda said that law firms should consider using the Budgeteer software that assists with case budgeting and allows one to forecast and understand case profitability and to model case costs and profitability based on assumed levels of effort by different levels of attorneys. Mr Chibesakunda also suggested that law firms should use the WorkSite software, which is used by over 1 400 law firms, for better document management. He said that the software allows for –

  • a centralised document and e-mail storage for local and global team working;
  • Outlook integration;
  • multi-level case centric security;
  • automatic document audit trail;
  • document version control; and
  • full text content searching of saved documents

According to Mr Chibesakunda one of the best global communication tools is the Microsoft Lync software. He said the software would enable attorneys to –

  • see if a colleague is in the office, in a meeting, on a call, busy or available;
  • send a colleague, team or department a quick instant message for a quick response, instead of sending a lengthy e-mail;
  • use a USB headset to call any colleague for free;
  • allow one-to-one calls to progress into a multi-person conference call;
  • progress from a Lync audio call to a video call using a web camera;
  • progress from a one-to-one video call to a multi-person video conference;
  • use Outlook to schedule a Lync conference and send out as a calendar invite;
  • discuss a document and collaborate on-screen by sharing an application or entire desktop and also edit and update documents while a colleague views them;
  • record audio or video calls and instant message conversations and desktop sharing, which can be sent to colleagues unable to attend the meeting; and
  • communicate with clients and third parties who also use Lync.

Good financial governance

On the second day of the conference, a session was held to discuss SADC legal frameworks and policies governing economic and financial governance. During this session Governor Charles Chuka, Governor of the Reserve Bank of Malawi gave a presentation on behalf of the Chairperson of the SADC Committee of Central Bank Governors and Governor of the South African Reserve Bank, Dr Gill Marcus.

Governor Chuka explained that the ‘integration of SADC central banks is not about the establishment of a single central bank and a monetary union; but it refers to efforts aimed at ensuring policy and operational coherence in the pursuit of the SADC community’s aspirations for regional economic integration. He added: ‘Generally, SADC central banks are preoccupied with not just price stability but also the soundness of financial systems. As such, central banks in the region are responsible for monetary policy in their respective countries and, with few exceptions, for supervision and regulation of both banks and non-bank financial institutions.’

Governor Chuka emphasised that SADC’s main objective is to promote regional integration. He said: ‘It has, as an aspiration, a target of ensuring that the SADC countries become sufficiently integrated, economically and politically, that we can have a single currency and a single central bank. As the example of the ECB [European Central Bank] and monetary union in Europe demonstrate, there are a number of preconditions that must be satisfied before this goal becomes attainable – one of which is effective regional coordination of financial regulation and financial governance. I hope I have convinced you that the region’s central banks are working hard to achieve this condition. Lawyers and the law can contribute to this effort by helping us in developing the legal and regulatory frameworks that facilitate financial integration and good regional financial governance. I also hope that your association will continue to show interest in our work and will play some role in developing the regional legal frameworks that can contribute to real improvement in the lives of all our citizens.’

Impact of public-private partnerships

During the SADC ‘Legal frameworks and policies governing economic and financial governance’ session, Boma Ozobia, past President of the Commonwealth Lawyers Association and partner at Sterling Partnership, discussed the impact of private partnership. She explained that a public-private partnership is a contractual agreement between a public agency and a private sector entity. She added: ‘Through this agreement, the skills and assets of each sector (public and private) are shared in delivering a service or facility for the use of the general public. In addition to the sharing of resources, each party shares in the risks and rewards potential in the delivery of the service and/or facility.’

Ms Ozobia elaborated on the need of public-private partnerships. She said that these partnerships fill a critical resource and expertise gap in infrastructure procurement, delivery and operation, while also producing accelerated procurement of infrastructure and services. She added that public-private partnerships –

  • promote faster implementation of projects, and reduced lifecycle costs and operations due to private sector efficiencies;
  • provide for better risk allocation between public and private sectors, thus offering a better and sustainable incentive to perform;
  • engender accountability in resource utilisation and also improve the overall quality of service; and
  • often lead to the generation of additional revenue and overall value for money for the entire economy.

Resolutions

During the two-day conference, issues of importance to lawyers practicing in the SADC region were deliberated. Below are resolutions issued on the official communiqué of the conference.

In terms of constitution-making and constitutionalism in the SADC region, delegates –

  • urged governments and civil society to ensure that constitution-making and constitutional-review processes are people-driven to ensure ultimate ownership by, and accountability to, the people; and
  • advised that constitutions should entrench provisions to safeguard the separation of powers, uphold the independence of the judiciary and respect for human rights, and preserve democracy.

On best practices and emerging trends in corporate law and governance, delegates resolved on the need to –

  • stay informed on and invest in technological advances to align their legal practices to 21st century standards and best practices as a means of ensuring efficient service delivery to clients;
  • recognise mining as a significant development resource in Africa and as an emerging area for cross-border deals;
  • (with regard to mining contracts) engage in advocacy and negotiation efforts, which yield agreements that mitigate risks, and accrue the maximum benefits, to the resourceful nations; and
  • (SADC citizens and judiciaries) be aware that arbitration is a viable dispute-resolution mechanism – governed by choice of law provisions in contracts and transnational laws – and does not undermine conventional judicial processes but should, to be most effective, be mainstreamed.

In terms of consensus-building efforts and the level of compliance with SADC summit decisions, delegates recommended that:

  • Conflict-resolution and military interventions in SADC require a transparent legal and policy framework.
  • Past, ongoing and future SADC interventions on politics, peace and security need to be better publicised, and ongoing and future interventions need to be implemented with a view to ensuring timeous and decisive action, finality in resolution, and the appearance of a regional response.
  • In line with the SADC Strategic Indicative Plan for the Organ, the SADC Lawyers’ Association should establish a framework for and actively engage in mediation and conflict-resolution efforts in SADC.
  • The suspension of the SADC Tribunal presents lacunae for the consolidation of regional integration efforts and facilitates the impugned disregard for the rule of law in the region, which should be minimised by SADC legal professionals through active and creative engagement of supranational courts and fora.
  • The SADC LA should promote research activities to facilitate quality litigation strategies, and should re-examine advocacy efforts to not only bolster litigation efforts but to ensure that SADC leaders understand and positively respond to demands made through advocacy efforts.

On constitutions as tools and safeguards for good governance, rule of law, human rights and democracy, it was resolved that:

  • Sovereign power belongs to ‘the people’ and governments derive power from ‘the people’. It follows, therefore, that the right to participate in a political process includes the public’s right to participate in the law-making process and, therefore, in the absence of the people’s participation in making laws, those laws should be invalidated.
  • For the avoidance of doubt, constitutions should clearly articulate the demarcations between government and political party office to facilitate smooth power transitions.
  • The rule of law must be allowed to prevail free from political interference in the lead up to and during elections, and the independence of judiciaries as final arbiters must not be compromised to ensure a just outcome.
  • Lawyers have a pivotal role to play in promoting, defending and protecting constitutions.

On SADC regional integration it was noted that SADC regional integration is the end goal (or ‘dream’), that it is an attainable ‘reality’, and that there have been significant achievements in promoting regional integration and cooperation. It was agreed that:

  • There is a need to develop and provide information on the SADC protocols on trade, finance and investment, and the free movement of persons.
  • SADC member states that have not ratified the above-mentioned protocols must be advised and urged to do so.
  • There is a specific need for advocacy work on trade agreements.
  • There is need to increase the interest in – and scope of – international trade law beyond academics to ensure competent stakeholder advisory services in the SADC region.

In terms of the SADC legal and policy frameworks governing economic and financial governance it was resolved that:

  • There is a role for SADC legal professionals to develop or advise on a regional legal and guiding framework for the long-term goal of attaining an independent SADC Central Bank.
  • SADC legal professionals must become fully conversant with anti-money laundering legislation in the region to discharge their legal obligation of advising clients about compliance issues.
  • There is a real opportunity and demand for lawyers to specialise in providing governments with expert advisory services to facilitate private-public partnerships.

On the independence and effectiveness of SADC judiciaries it was agreed that:

  • Judges should be appointed by independent judicial service commissions to independently and competently serve the interests of the law, the constitution, and to uphold human rights and dignity.
  • Governments must ensure that the judiciaries in the region are adequately resourced, are independent and are able to carry out their mandate without fear and favour.

On guidelines for judicial transformation and the reform of the office of the Attorney General and National Prosecuting Authority recognised the need for and adopted guidelines to establish regional standards on:

  • Judicial transformation with the intention of entrenching not only the independence of the judiciary but also enforcing and protecting the rule of law in the SADC region.
  • Reform of the role and functions of the office of the Attorney General and National Prosecuting Authority with a view to enhancing the functions of these departments, and entrench and protect the rule of law in the SADC region.
  • These guidelines make provision for their adaptation to local socio-political and legal dictates.

In terms of the SADC Tribunal delegates noted with concern that the continued suspension of the Tribunal impacts negatively on the rights of SADC citizens, not only to access justice but to seek effective legal remedies. It was also noted further that the resolution by the SADC Heads of State Summit in Maputo to bar non-state actors from accessing the Tribunal and to restrict applicable law to that provided only in the SADC Treaty and SADC Protocols should be strongly condemned by all well-meaning citizens. The limitations on the powers of the Tribunal impacts not only on human rights but also on the trends towards regional courts, the SADC integration agenda and investor confidence, therefore SADC LA advised and urged the SADC heads of state to defer the adoption of a new protocol on the SADC Tribunal during the SADC Summit of Heads of State or government to pave the way for a consultative drafting process.

Mapula Sedutla, mapula@derebus.org.za

This article was first published in De Rebus in 2014 (Jan/Feb) DR 20.

 

X