By Nomfundo Manyathi

While many had hoped that the two-year suspension of the SADC Tribunal would be lifted in August, instead regional leaders decided to further curtail the court’s powers.

The decision was taken at the 32nd Southern African Development Community (SADC) Summit of Heads of State and Government, which was held in Mozambique from 17 to 18 August. The summit was attended by 14 heads of state, including South African President Jacob Zuma, Zimbabwean President Robert Mugabe, Swaziland’s King Mswati III and Seychelles President James Michel.

In this respect, the final communiqué from the summit stated that the heads of state, after receiving a report from the Committee of Ministers of Justice/Attorneys-General, resolved that a new protocol on the tribunal should be negotiated and that its mandate should be confined to the interpretation of the SADC Treaty and protocols relating to disputes between member states. The result is that individuals will no longer be able to access the tribunal.

The tribunal was initially established as an international court for southern Africa with the mandate to apply SADC community law, relevant human rights instruments and applicable national law. It was not a court of appeal for domestic courts and could only be approached by natural or juristic persons after domestic remedies had been exhausted.

The tribunal was suspended in 2010 after the Zimbabwean government refused to implement a ruling relating to Zimbabwe’s land reform programme in the case of Mike Campbell (Pvt) Ltd and Others v Republic of Zimbabwe SADC (T) (unreported case no 2/2007, 28-11-2008). The tribunal found that several farmers who had their lands taken were not afforded the rights of access to the courts and to a fair hearing. The tribunal ordered the government to protect certain applicants from eviction and their land from redistribution and to compensate others for the dispossession of their land.

When the Zimbabwean government refused to comply with the order and questioned the tribunal’s jurisdiction and powers to enforce decisions, the tribunal consulted the SADC Summit of Heads of State and Government, which instead decided on a review of the tribunal’s role, functions and terms of reference. The summit also placed a moratorium on the tribunal receiving any new cases and on hearing any part-heard matters until the review had taken place and was approved. It also decided not to renew the terms of the tribunal’s judges.

In a joint press release, the Commonwealth Lawyers Association, the Commonwealth Legal Education Association and the Commonwealth Magistrates’ and Judges’ Association voiced their concern about the summit’s latest decision. The three associations called on the summit to reinstate the tribunal in its original form, noting its importance as a mechanism for the promotion, protection and full realisation of human rights in southern Africa and for affording citizens of the SADC region with access to justice and effective legal remedies independent of national judicial systems.

The executive director of the SADC Lawyers’ Association (SADC LA), Makanatsa Makonese, told De Rebus that SADC lawyers had agreed not to support the tribunal in its current proposed form. She said that, as an interstate court, governments alone would be able to take each other to the court and that this was highly unlikely to happen, meaning that the court would become a white elephant. She added that the decision taken at the summit in Mozambique came as a ‘huge shock’ to SADC LA, as it was under the impression that the heads of state would announce that the moratorium had been lifted.

Ms Makonese added that SADC LA believed that the Committee of Ministers of Justice/Attorneys-General was aware of the implications of this decision and that it was unfortunate that decisions of the summit were made by heads of state, resulting in them being political rather than judicial decisions.

The new protocol on the tribunal will be presented and discussed at the next summit in Malawi in August 2013.

Nomfundo Manyathi, nomfundo@derebus.org.za

This article was first published in De Rebus in 2012 (Oct) DR 5.