By Makanatsa Makonese
On 23 November 2012 lawyers’ bodies* lodged an application with the African Court on Human and Peoples’ Rights (the African Court) requesting it to provide an advisory opinion on the legality of the decision of the SADC Heads of State and Government to suspend the SADC Tribunal.
Tribunal on ice
The SADC Tribunal, a judicial institution established in terms of art 9 of the SADC Treaty, commenced operations in 2005. It was suspended in August 2010 at the SADC Summit of Heads of State and Government in Namibia following representations by Zimbabwe that the tribunal was not properly established and, as such, could not be legally recognised as an institution of SADC.
The representations by Zimbabwe came after the tribunal made decisions regarding the Zimbabwe Fast-Track Land Reform Programme, with which the Zimbabwean government did not agree.
The tribunal remains suspended despite indications by the SADC summit, when it suspended the institution in 2010, to the effect that the suspension would be for a period of six months pending a review of the tribunal’s role, functions and terms of reference.
Why ask for the African Court’s intervention?
The African Court has not been requested to reinstate the SADC Tribunal but to provide an advisory opinion on the legality of the actions of the SADC Heads of State and Government in suspending the tribunal.
The request was made in terms of art 4 of the African Court Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights, which entitles recognised entities to request opinions from the court on ‘any legal matter relating to the [African] Charter [on Human and Peoples’ Rights] or any other relevant human rights instruments’.
This opinion is necessary in order to provide direction to the SADC summit and other interested parties on the issue of the suspension of the tribunal as the issue has dragged on for too long without any indication on whether the issue will ever be settled.
Following the suspension of the tribunal, the SADC Secretariat commissioned the World Trade Institute Advisors (WTIA) to conduct an assessment of the role, functions and terms of reference of the SADC Tribunal as mandated by the SADC summit. WTIA submitted a report, which was reviewed by the SADC Ministers of Justice/Attorneys-General, who in turn provided their recommendations to the SADC Extraordinary Summit in Namibia in May 2011.
The SADC summit did not accept the recommendations and advice of the WTIA and the Ministers of Justice/Attorneys-General and instead tasked the ministers and attorneys-general to continue with a review of the role, functions and terms of reference of the tribunal until August 2012, when they were to give their final recommendations to the summit.
The Ministers of Justice/Attorneys-General gave their recommendations to the 32nd SADC summit, which was held in Mozambique in August 2012. The essence of the recommendations was to the effect that the SADC Tribunal should be re-opened but should not have a human rights mandate pending negotiation by SADC countries on a separate protocol to deal with human rights issues. Only after the adoption of the human rights protocol would the tribunal have been allowed to deal with human rights cases.
Instead of accepting this advice from their own ministers of justice and attorneys-general, the SADC summit made a complete turnaround and resolved that a new protocol on the SADC Tribunal should be negotiated and ‘that its mandate should be confined to interpretation of the SADC Treaty and protocols relating to disputes between member states’ (final communiqué from the 32nd summit).
Implications
The meaning and implications of this decision are manifold:
In addition, the summit has consistently ignored advice from the WTIA, its own ministers of justice and attorneys-general, let alone civil society in SADC. There is thus no guarantee that the SADC summit will accept the advice and recommendations of the Ministers of Justice/Attorneys-General next time around. Often, no reasons are given for the decisions that the summit takes, making it difficult for stakeholders to engage effectively with the SADC Heads of State and Government on the issue.
In addition to the review by WTIA, ministers of justice, attorneys-general and senior legal officers from the 15 SADC countries have been holding a series of meetings since the suspension of the tribunal in order to come up with the requisite advice and recommendations to the summit. There is no doubt that the WTIA review and these meetings have been costly to the citizens of SADC. It is therefore only fair that the outcomes of these processes are taken seriously for the benefit of SADC citizens.
In light of these issues, it is important that the highest human rights court in Africa be given an opportunity to provide an opinion that, in turn, will provide direction on how the SADC Tribunal issue should be resolved. As things stand, the region has been going around in circles with no resolution in sight for defining the status of the region’s judicial organ.
Conclusion
As was stated by the SADC Lawyers’ Association after the request for an advisory opinion in this matter was filed with the African Court, it would have been preferable for SADC to resolve this issue on its own. However, the continuous disregard of advice by the SADC summit, including that of its own ministers of justice and attorneys-general, left legal bodies in the region with no choice but to approach the African Court. It is hoped that the opinion from the court will provide the much-needed direction that will allow the challenges at the SADC Tribunal to be resolved and for the institution to continue with its business of dispensing justice to the citizens of SADC.
* The Southern Africa Litigation Centre (a joint initiative between the International Bar Association and the Open Society Initiative for Southern Africa, which promotes and advances human rights and the rule of law in southern Africa) and the Pan African Lawyers Union (the umbrella association of African lawyers and law societies); supported by the Southern African Development Community (SADC) Lawyers’ Association (an independent voluntary association made up of law societies – including the Law Society of South Africa – and Bar associations of the SADC region) and the International Commission of Jurists Africa Regional Programme (which aims to enhance the realisation of human rights on the African continent through adherence to the rule of law).
Makanatsa Makonese is the executive secretary of the SADC Lawyers’ Association.
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SADC TRIBUNAL FACT BOX The demise of the Southern African Development Community (SADC) Tribunal should be of concern to all attorneys in the SADC region, including South Africa. Prior to its suspension, the tribunal had a track record of progressive justice as the regional judicial body and was a critical component in the protection and realisation of human rights, as well as for affording access to justice and effective legal remedies. Essentially, it was established to strengthen the rule of law in the region, to afford citizens recourse for human rights violations and to hold their governments accountable. • SADC As an institution of SADC, the tribunal’s member states are those of the community, namely Angola, Botswana, Democratic Republic of Congo, Lesotho, Madagascar, Malawi, Mauritius, Mozambique, Namibia, Seychelles, South Africa, Swaziland, Tanzania, Zambia and Zimbabwe. SADC is an intergovernmental regional economic community with the goal of promoting economic growth and socio-economic development (www.sadc.int, accessed 14-1-2013). Its other institutions include its policy-making arm, the Summit of Heads of State or Government, which consists of all SADC heads of state or government and controls the community’s functions; and its secretariat, which is its principal executive institution, responsible for the implementation of decisions of SADC policy and institutions. • Demise of a key body The tribunal was suspended in August 2010 at the SADC Summit of Heads of State and Government in Namibia following representations by Zimbabwe that it was not properly established and therefore could not be legally recognised as an institution of SADC. The summit decided on a review of the tribunal’s role, functions and terms of reference. In May 2011 an Extraordinary Summit of Heads of State and Government then initiated a process to amend the relevant SADC legal instruments and instituted a moratorium on the tribunal receiving new cases and hearing part-heard ones until the review had taken place and was approved. It also decided not to renew the terms of the tribunal’s judges. • The role of Zimbabwe The suspension came after the Zimbabwean government failed to implement orders relating to the country’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). In this matter, the tribunal had found that several farmers who had their land taken were not afforded the rights of access to the courts and to a fair hearing and had been discriminated against based on their race. It ordered the government to protect certain applicants from eviction and their land from redistribution and to compensate others for the dispossession of their land. After the Zimbabwean government refused to comply with the order and questioned the tribunal’s mandate, jurisdiction and powers to enforce decisions, the tribunal consulted the SADC Summit of Heads of State and Government, which has a legal duty to take ‘appropriate action’ against a recalcitrant party who fails to enforce a decision of the tribunal. However, the summit decided on the abovementioned review and moratorium. • A new protocol The suspension of the tribunal was continued after the 32nd SADC Summit of Heads of State and Government in August 2012. The summit, which was attended by 14 heads of state, including South African President Jacob Zuma, resolved that: ‘[A] new protocol on the tribunal should be negotiated and that its mandate should be confined to interpretation of the SADC Treaty and protocols relating to disputes between member states.’ • What now? The suspension of the tribunal will continue while a new protocol (due to be presented and discussed at the next summit in Malawi in August 2013) is negotiated, with the proposal that it become an interstate court. This is despite mounting pressure to reinstate the tribunal in its original form – Editor. |
These articles was first published in De Rebus in 2013 (Jan/Feb) DR 24.
