By Mapula Sedutla
The Southern African Development Community (SADC) Tribunal was the subject of a recent colloquium hosted by the SADC Lawyers’ Association (SADC LA) and the SADC Community Council of Non-Governmental Organizations (SADC – CNGO).
The theme of the colloquium, which took place in Johannesburg, was ‘Whither the SADC Tribunal?’
Speakers at the conference included executive director of the SADC – CNGO, Boichoko Ditlhake; Zimbabwean Deputy Justice Minister, Obert Gutu; director of the Africa Regional Programme of the International Commission of Jurists, Arnold Tsunga; registrar of the East African Court of Justice, Professor John Eudes Ruhangisa; chief registrar of the Economic Community of West African States Community Court of Justice (ECOWAS Court), Tony Anene-Maidoh; Chief Justice of Tanzania, Mohamed Chande Othman; executive director of the Southern Africa Litigation Centre, Nicole Fritz; President of the Law Association of Zambia, James Banda; Professor Michelo Hansungule from the University of Pretoria Centre for Human Rights; Botswana attorney Onalethata Kambai; and programme manager of poverty development at SADC – CNGO, Glen Farred.
Below is a summary of a report that was compiled on the colloquium.
Background
The SADC Tribunal commenced operations in 2005 and was established by SADC member states in terms of art 9 of the SADC Treaty in order to ‘ensure adherence to and the proper interpretation of the provisions of [the SADC] Treaty and subsidiary instruments and to adjudicate upon such dispute as may be referred to it’ (art 16(1) of the SADC Treaty).
In August 2010 the SADC Summit of Heads of State and Government took a resolution to suspend the tribunal pending a review of its role, functions and terms of reference.
It was in this context that the conference was held to offer a platform for legal practitioners, researchers, government officials, civil society and labour association representatives to discuss the short-, medium- and long-term solutions to overcome the status quo.
The objectives of the colloquium included to –
Fighting for the tribunal
Mr Ditlhake said that members of civil society should continue to fight against the decision of the 32nd SADC Summit of Heads of State and Government to reduce the tribunal to an interstate court. He stated that an awareness campaign was planned for the purpose of collecting five million signatures from citizens of the region as a sign of their disapproval of the decision, which restricted access to justice.
In conclusion, Mr Ditlhake highlighted that a good vision of justice rested on respecting the separation of powers and accountability. He added that the rule of law should not come from the vision of governments but rather from the endeavour of citizens of the region and civil society.
Despite the fact that the decision to suspend the tribunal stemmed from Zimbabwe’s refusal to comply with the tribunal’s decisions, the country’s Deputy Justice Minister Gutu said: ‘When citizens have exhausted all national remedies at their disposal, they must be allowed to appeal to [a] national judiciary body such as the SADC Tribunal.’
He added that the decision to reduce the tribunal to an interstate court was a step backwards since it restricted the meaning of human rights. He therefore urged those at the colloquium to reflect on the current situation affecting the tribunal and to come up with a tangible way forward.
East African Court of Justice
In the second session of the colloquium, Professor Ruhangisa recalled that the motivation to establish the East African Community was to foster cooperation and development among member states. He said that he played a part in establishing the East African Court of Justice.
Professor Ruhangisa noted the similarities in problems experienced by the two regional organisations and stated that there was, therefore, something to learn for SADC, for example in respect of sovereignty of member states. He highlighted some features of the East African Community that could not be found in SADC, such as the superiority that community law enjoys above national law, especially regarding the enforcement of judgments in the region.
Professor Ruhangisa further reflected on internal and external factors that impacted on the effectiveness of a regional court. Internal factors include the experience, competence, skills, integrity, independence and impartiality of judges; and transparency in the appointment of judges. The external factors he pointed out were the need for political support – arguing that lack of enforcement of a court’s decisions was generally an expression of a lack of political support from governments – and the accessibility of the court. Contrary to the position in SADC, he pointed out that the East African Community had neither set up a condition nor a cost fee for accessibility. He added that geographical location would naturally limit the accessibility of courts.
In response to questions raised during plenary discussions, Professor Ruhangisa emphasised the need to educate and assist citizens to understand the meaning of justice. On the issue of a lack of political support, his view was that it was important not to rely on politicians’ promises in cases involving the government, but rather to opt for lobbying as a better strategy.
In conclusion, he emphasised the role that civil society must play to support the regional court.
ECOWAS Court
Mr Anene-Maidoh provided an overview of the rationale for the establishment of the ECOWAS Court, which is responsible for resolving disputes among member states regarding interpretation and application of the provisions of the ECOWAS Treaty. He said that although the ECOWAS Court was initially an interstate court, its jurisdiction had been extended in January 2005 to give citizens of the community access to the court, especially regarding human rights issues.
Mr Anene-Maidoh noted that the court’s mandate was fluid and indeterminate, and represented a bigger opportunity to uplift fundamental rights.
In addition, he said that the ECOWAS Court had some organisational features that the tribunal may borrow, such as –
In conclusion, Mr Anene-Maidoh recalled the role civil society played in the extension of the mandate of the ECOWAS Court and urged civil society in the SADC region to keep fighting the decision to limit the tribunal’s jurisdiction.
What now?
During the third session of the colloquium, Ms Fritz said that the Southern Africa Litigation Centre had worked closely with SADC LA, as well as a number of civil societies in the region, in a bid to secure the revival of the tribunal. Further, through the Pan African Lawyers Union and the centre, she said, a request had been made to the African Court on Human and Peoples’ Rights (African Court) to provide an advisory opinion on the legality of the tribunal’s suspension and legal issues relating to the tribunal. Ms Fritz concluded by saying that although advisory opinions were not legally binding on states, the aim was to engage in further discussions with governments of the region.
Professor Hansungule stressed that political will went beyond signatures and ratifications of protocols; it required the implementation of the tribunal’s decisions. He added that there was a need for civil society to engage with SADC justice ministers and ‘fight for what they believe is right’. He observed experiences in the inter-American and European human rights systems and said that, although initially both systems were the result of a political process, enforcement mechanisms took into account human rights as time passed. He added that, although the process to establish a court was often political at its inception, this should not prevent the tribunal working independently and delivering efficient decisions to uplift human rights.
Professor Hansungule added that there were many viable options for citizens of the region besides the tribunal, such as the enforcement mechanisms set up in the United Nations system, the African Charter on Human and Peoples’ Rights and the Common Market for Eastern and Southern Africa Treaty, which promote the protection of human rights. However, he cautioned that the existence of these optional methods should not be taken as a reason to consider that the case for the tribunal was lost.
In response to questions raised during the plenary session, Professor Hansungule pointed out that experiences from other continents were relevant for Africa in the context of human rights. He said that, for instance, the African supranational courts could learn from the effective enforcement of judgments delivered in the European Court of Justice. He added that these regional courts made ‘practical sense’ to the people, as they were close to victims.
Importance of the tribunal
During the fifth session of the colloquium, Mr Kambai said that it was important to consider the motivation behind the tribunal’s establishment, which was ‘to strengthen democratic governance, human rights, the rule of law and adherence of the principles of separation of powers within the region’.
He emphasised the difference between the rule of law and rule by law. He said that the former implied that power must be exercised in respect of fundamental principles entrenched in law, including human rights, while the latter suggested that the power may be exercised in any way, provided it was in accordance with the law, which could mean violating human rights. He said that apartheid was an example of rule by law, as there were some laws that could not be legitimated but were used to oppress South Africans. He added that the decision on the curtailment of the tribunal was another example of rule by law.
Mr Kambai suggested that should the tribunal be reinstated, factors such as a credible system of accreditation of lawyers should be in place, judges should be appointed full-time, the tribunal should be funded by member states and the issue of sovereignty should be regulated.
In conclusion, he called for formal cooperation among regional courts to enable the enforcement of laws across regions.
Mr Farred, during his presentation, elaborated on the tribunal from a socio-economic and development perspective. He pointed out interactions between development and human rights issues. In his view, fundamental rights with implications for development, such as access to education, clean water and food for children, should be regarded as justiciable.
In respect of the Millennium Development Goals, he stated that of all countries in south Saharan Africa, only Botswana was likely to achieve its objectives by 2015.
Mr Farred concluded by saying that the debate on the tribunal must go beyond pure legal perspectives and spark discussion on how to include socialised content in the SADC Treaty. He said that there was a need to renegotiate the social contract between SADC citizens and heads of state and governments.
Last Tarabuku, member of the Zimbabwe Congress of Trade Unions, representing the Southern African Trade Union Co-ordination Council, said that his organisation was opposed to the decision of reducing the tribunal to an interstate court. He added that it was necessary to look at human rights issues from a labour perspective and to tackle issues related to decent working conditions and social security.
Working together
During a plenary discussion on the second day of the colloquium three main ideas were developed. These were:
Delegates were divided into groups to deal with these ideas.
The way forward
The groups recommended that SADC lawyers be involved in lobbying for the reinstatement of the tribunal. Further, it was necessary to lobby at an international level with strategic organisations and there was a need to establish alliances with stakeholders formally registered at a national level. The groups also mentioned that there was a need for lobbying strategies to be revised, as previous ones had not been effective. Should the tribunal be reinstated, the groups recommended that the tribunal should have a human rights and economic mandate and must be independent. They also recommended that civil society should engage with various governments of the region in order to convince them to reinstate the tribunal.
The groups suggested the following:
Mapula Sedutla, mapula@derebus.org.za
This article was first published in De Rebus in 2013 (May) DR 11.
