Resolutions on the SADC Tribunal

October 1st, 2012

Report compiled by Kim Hawkey

On the SADC Tribunal

  • SADC LA will not support the tribunal in the form proposed by the 32nd SADC summit, in which form the tribunal will be an interstate court and its jurisdiction limited to the interpretation of the SADC Treaty and protocols.
  • Lawyers however remain committed to working with the SADC summit and regional governments to ensure that the SADC Tribunal is revived in an acceptable form, retains its mandate and is effective and independent.

On independence of the judiciary

  • The lawyers noted that judiciaries in the SADC region are being undermined in different ways, including financially, by the unjustifiable suspension and removal of judges and through the limited confines in which judges are expected to exercise their mandate.
  • It was noted further that while in most instances threats to independence of the judiciary might come from outside, in certain instances it can come from within the judiciary itself.
  • Governments must therefore ensure that the judiciaries in the region are adequately resourced, are independent and are able to carry out their mandate without fear or favour.

On constitution-making in SADC

  • The lawyers noted that Zimbabwe, Zambia and Tanzania are currently involved in constitution-making processes, while debates on same are ongoing in Botswana.
  • Countries that are involved in constitution-making processes were urged to ensure that the resultant constitutions entrench the principles of human rights, democracy, the rule of law, independence of the judiciary and other norms that encourage the establishment of free and democratic societies and eliminate dictatorships.

On gender equality and women’s rights in SADC

  • The meeting noted that the commitment of SADC governments on gender issues is still wanting. For instance, no country in the SADC has achieved the 50/50 gender parity called for in the SADC Protocol on Gender and Development.
  • It was noted further that gender disparity is evident in SADC LA, where the make-up of the presidencies of the law societies and Bar associations currently shows that there is one woman President out of 15.
  • To address these challenges, the meeting urged SADC leaders to implement the SADC Protocol on Gender and Development and SADC LA, law societies and Bar associations to encourage the participation of women lawyers in the affairs of these institutions.
  • Further, it was agreed that women lawyers in the region will work towards the establishment of a regional women lawyers’ network to support each other professionally.

On independence and effectiveness of the legal profession

  • It was noted that SADC LA is alive to the fact that – as an institution representing the legal profession in the SADC region – it has a duty to issue statements, comment on and take action on socio-political issues and developments in the region without fear or favour. To effectively achieve this mandate, the profession must therefore not be timid or passive and must be informed and independent.
  • Lawyers must ensure that they retain their integrity in order to maintain public confidence. Law societies must therefore ensure that they have effective mechanisms in place to deal with errant lawyers in the public interest and to maintain the profession’s reputation.
  • Continuing professional development must not only target lawyers, but must also target staff members that work in law firms and law-based organisations.

On SADC citizens

  • SADC citizens must recognise that it is not the responsibility of one citizen to build a nation but it is the responsibility of all citizens. An active citizenry plays an integral role in the development and prosperity of any country.

On illicit financial flows, poverty and implications for human rights

  • The lawyers agreed that there is a need to recognise that poverty is a violation of human rights and that tax evasion, corruption and other illicit activities fuel poverty.
  • Lawyers gave their commitment to get involved in various ways in the fight against illicit financial flows, including through their role as tax advisers to corporates and other institutions; by embracing economic, social and cultural rights as justiciable; and by advocating for the amendment of laws that have over the years made it possible for big multinational and other corporations to carry out abusive tax evasion without consequences.
  • Governments were urged to be accountable and transparent, and to provide good financial governance and access to information on how available resources are spent.
  • Further, governments were urged to ensure that they have functional and effective institutions to address and deal with issues of corruption, tax evasion, money laundering and other illicit activities as capacity in this area remains very low in SADC.
  • Lawyers agreed that there is a need to examine the operations of extractive industries in SADC to understand how they contribute to poverty through corruption, tax evasion, money laundering and other illicit activities.
  • Politicians and other leaders were urged to lead by example through paying their taxes all the time and on time.
  • Lawyers highlighted the need to work with other professions in addressing the challenges of illicit financial flows, tax evasion and corruption.

On freedom of expression and access to information

  • Lawyers noted that all the countries in the SADC region still have criminal defamation laws on their statutes in one form or another, while all countries except South Africa and Namibia still have insult laws.
  • The lawyers noted that in most cases it is the political leaders and other influential people who determine what constitutes insult, leading to the persecution and prosecution of the media, journalists and other citizens.
  • It was further noted that there is a close link between entrenched rule, dictatorship, the fight for self-preservation and repression of freedom of expression and access to information.
  • There is, therefore, a need to repeal and amend laws that criminalise freedom of expression, using international principles as a basis for advocacy.
  • There is a need to encourage debate and research on the relevance of laws that criminalise freedom of expression in this day and age.
  • Lawyers will engage in strategic litigation, including taking cases to the African Court on Human and Peoples’ Rights to protect freedom of expression and access to information.

On protecting prisoner rights and managing prison conditions in SADC

  • The meeting noted that the rights of awaiting trial detainees could not be separated from the right to a fair trial.
  • It was further noted that international norms and standards do not provide effective guidance to the purpose and practice of pre-trial detention and vagueness in some of the instruments often provides loopholes that lead to deliberate non-compliance by state parties.
  • Therefore, for the same reasons that justify proliferation of international human rights instruments at international, continental and regional level, there is a need to consider having instruments on the protection of prisoner rights that address these rights at the SADC level to reflect our realities and aspirations as a region.
New SADC LA executive committee

  • President: Kondwa Sakala-Chibiya from Zambia
  • Vice-president: Gilberto Correia from Mozambique
  • Treasurer: Max Boqwana from South Africa
  • First additional member: Maureen Kondowe from Malawi
  • Second additional member: Patrick Mulowayi from the Democratic Republic of Congo

Kim Hawkey,

This article was first published in De Rebus in 2012 (Oct) DR 11.