By Kim Hawkey

Chief executive officers and directors of a number of law societies in the Southern African Development Community (SADC) region recently met in Johannesburg to discuss issues of concern in some of the region’s countries and to learn from each other’s experiences in running their organisations.

This was the first meeting of its kind for the directors, whose law societies are members of the SADC Lawyers’ Association (SADC LA), which arranged the gathering.

Topics discussed included the SADC Tribunal, how best to engage with the state on violations of human rights and the rule of law, the legal profession’s response to issues of concern and successful models for legal education and professional development.

Executive secretary of SADC LA Makanatsa Makonese spoke about issues of concern relating to human rights and the rule of law in the SADC region and responses to these by the legal community.

Ms Makonese said that the most important issue was the suspension of the SADC Tribunal, which has been inoperative since 2010 after the SADC Summit of Heads of State and Government decided that the role, functions and terms of reference of the tribunal needed to be reviewed.

‘The suspension of the tribunal is a reflection of the general disregard for the rule of law and the independence of the judiciary in the region. … The suspension impacts negatively on the work of lawyers, on access to justice and on the independence of the judiciary,’ she said.

Ms Makonese said that the tribunal’s suspension was largely due to the actions of Zimbabwe, which was campaigning to have the powers of the tribunal curtailed by, for example, calling for only governments, and not citizens, to have direct access to the tribunal.

She added that South Africa had not taken ‘a very clear or strong position’ on the tribunal, but there had been several responses by SADC LA, including regional consultative meetings focusing on lawyers and judges, meetings with the Justice Minister and the Attorney-General in South Africa and the Deputy Minister and the Attorney-General in Namibia, and meetings with the SADC Secretariat officials and with the SADC Tribunal registrar.

Ms Makonese said that the tribunal issue was no longer just a legal issue as it had become politicised and responses to it must also be political.

She said that the next decision on the tribunal was due to be taken in August. ‘It might be the “make or break” decision. If we do not do our homework or engage with those we should, we will live with this for the next five years. … If we fail to deal with this issue, we have failed as a profession, failed ourselves as professional persons and we have failed citizens because they look to us [for assistance],’ Ms Makonese told the directors.

In addition to the tribunal, Ms Makonese raised other issues of concern, including those related to judicial independence and the level of domestication of international human rights instruments.

The directors present each spoke about the various issues of concern in their countries, which ranged from unemployment, HIV, access to justice, corruption and other crime, service delivery, backlogs in court, reasons not being provided in court judgments, attacks on lawyers, problems with elections, a lack of dissenting judgments, independence of the judiciary to police violence.

Evelyn Edroma, an access to justice and human rights policy adviser at the United Nations Development Programme, spoke to the directors about challenges and strategies when engaging with the state in addressing human rights and rule of law violations. Ms Edroma said that lawyers had a professional responsibility and a moral obligation to engage with the state on human rights and rule of law issues, especially when there were irregularities that affected citizens. She said that the state was the primary duty bearer in terms of international law and was expected to respect, protect and fulfil citizens’ rights. Ms Edroma said that lawyers should work together with the state to address any related challenges as they had a professional responsibility to ‘challenge why things are not being done right’.

She said that lawyers should engage with the state on issues such as policy and legal frameworks by providing input that shaped the outcome of progressive constitutions, policies and laws; the formation of key democratic institutions or structures for service delivery and oversight; and should participate in consultative mechanisms and processes and providing input to address rule of law, human rights and governance issues, such as climate change and HIV, to influence the agenda in terms of these issues.

Ms Edroma said that there were a number of ways lawyers could engage with the state, including through public interest litigation, policy engagement, practice development in response to the realities and needs of citizens and strategic advocacy for change.

She added that the approach selected to engage with the state was ‘very important’. It needed to be constructive and evidence-based and, rather than being confrontational, it should be a dialogue with the intention of finding a solution together. She concluded by saying that if the approach selected was not working, another should be adopted. For example, when a country was not open to dialogue, it should be considered whether the courts were working properly and, if so, strategic litigation should be considered. If not, ways of galvanising support regionally or internationally should be looked at and change agents within the government should be identified for engagement. ‘Keep the issue on the table in the public space,’ she said.

The meeting was closed by SADC LA President Thoba Poyo-Dlwati, who said that she looked forward to the day when legal practitioners in the SADC region could practise in each other’s countries with similar qualifications and competencies, and added that there was a need to develop a uniform code of ethics for the region.

Kim Hawkey, kim.hawkey@derebus.org.za

This article was first published in De Rebus in 2012 (April) DR 14.