By Kim Hawkey – Editor

The SADC Tribunal was created with the vision of a regional judicial body to strengthen the rule of law in the SADC region, to afford citizens with recourse for human rights violations and to hold their governments accountable.

In its relatively short period of operation, the tribunal took bold decisions and provided redress to victims of serious rights violations, including those caused by an illegal land-grab campaign and torture at the hands of their country’s police and army.

Significantly, over 80% of the matters that came before the tribunal were brought by individuals against states. This was possible because of a fundamental provision in the tribunal’s protocol – that any natural or juristic person could bring a matter to the tribunal alleging a violation of SADC law by a member state, even if not a citizen of such state.

Despite the court’s track record of progressive justice, the region’s political leaders have effectively put an end to this key institution.

In what has been described as ‘the clearest case in the region of the undermining of the rule of law and independence of the judiciary’*, the 32nd SADC Summit of Heads of State and Government, which took place in Mozambique in August, 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.’

In effect, the existing two-year suspension of the tribunal will continue, while a new protocol is negotiated, with the proposal that it become an interstate court.

The result, according to many who have decried the decision, will be to render the court that held so much hope a white elephant.

As outgoing President of the SADC Lawyers’ Association Thoba Poyo-Dlwati said one week after the decision:

‘From what we know of our leaders in SADC, it is unlikely that they will take each other to the tribunal, rendering the institution only a court in name and building as no cases will be heard at that court.’

This, she said, was a clear indication that leaders in the SADC region were ‘concerned more with protecting their turf than with the rights of the citizens’ and could be directly linked to ‘Zimbabwe’s refusal to abide by the judgments of the tribunal and respect the independence of the judiciary.’

The case that triggered this situation is Mike Campbell (Pvt) Ltd and Others v Republic of Zimbabwe SADC (T) (unreported case no 2/2007, 28-11-2008), in which the tribunal found that the applicants had been denied access to the Zimbabwean courts and had been discriminated against based on their race. The tribunal made several orders against the Zimbabwean government, which refused to comply with the court’s decision and instead questioned the tribunal’s legality and jurisdiction, as well as its mandate and powers to enforce decisions. The tribunal referred the matter to 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.

Despite this duty, in August 2010 the summit decided on a review of the tribunal’s role, functions and terms of reference.

The subsequent independent review confirmed that the tribunal was indeed properly established and its decisions were binding.

However, in a blow to justice, in May 2011 an Extraordinary Summit of Heads of State and Government ordered the initiation of a process to amend the relevant SADC legal instruments and instituted a moratorium on the tribunal receiving any new cases and hearing any 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.

A question raised by many is: Why have an independent review, only to disregard its findings?

Ms Poyo-Dlwati, for example, has asked: ‘Why waste the region’s resources and taxpayers’ money over a process that the SADC Heads of State and Government have no intention of respecting and following? There is no political will, period. … What are our leaders hiding? What are they afraid of? Why are they so averse to the idea of citizens taking their grievances to the tribunal?’

While Archbishop Emeritus Desmond Tutu questioned: ‘If you are a law-abiding head of state, why are you scared that people might want to go through another adjudicator, unless it is that you fear you are likely to fall foul of the law?’

The lack of transparency by those taking these far-reaching decisions has rendered it inevitable that such questions remain unanswered. Unfortunately, this leads to the unavoidable conclusion that the leaders of the region are threatened by the court, which has the power to overturn the decisions of domestic courts. This in turn leads to an inescapable questioning of member states’ commitment to the principles of democracy, human rights and separation of powers.

The result is sovereignty at the expense of access to justice. The implications for trade and industry, international credibility and economic and social integration are dire. However, the consequences in terms of access to justice and the protection of the rights of citizens – who will have no recourse outside their countries should their country’s judiciary fail them or where they have justifiably lost faith in their domestic justice systems – are catastrophic.

The tribunal should be reinstated in its original (or another acceptable) form, with the only change to its mandate being to strengthen it. Lawyers of the region owe their fellow citizens a duty to use their legal acumen to put their weight behind the mounting pressure to save the tribunal (in a meaningful form) and ultimately to secure justice for the people of the SADC region.

*Outgoing President of the SADC Lawyers’ Association, Thoba Poyo-Dlwati, in her opening address at the association’s 2012 conference and AGM.

This article was first published in De Rebus in 2012 (Oct) DR 3.