SADC Tribunal Back in the Spotlight

Background

In March 2014, the HSF issued a brief on the demise of the SADC Tribunal. Since 2013, the HSF had observed the piecemeal dismantling of the interstate court with increasing alarm and concern. Titled ‘RIP SADC Tribunal,’ [1] the HSF laid out the history of the Tribunal, and the events which resulting in its foreclosure, as follows:

“(The Tribunal) ruled in 2007 and 2008 that Zimbabwe’s … Land Reform Programme was racist and violated property rights and the right of access to justice… The SADC Tribunal pronounced that Zimbabwe had to pay compensation… Mugabe… simply ignored the Tribunal, later launching a campaign … to further a stance amounting to non-compliance (with) enforceable rulings on human rights violations.’’ [2]

‘‘The SADC Tribunal was established as far back as 1992, but was only staffed and became operational in 2005. However, following the decisions in 2007 and 2008, and subsequent to the Mugabe regime’s campaign to have it shut down, the SADC (Heads of State) Summit ordered a review of its functions in 2010, suspended its activities in 2011 and completely disbanded it in 2012.’’ [3]

In drawing attention to the brief respite offered by South Africa’s Constitutional Court in Government of the Republic of Zimbabwe v Fick, the HSF detailed how, despite it being shut down, the decisions of the Tribunal could still have an impact [4]. The HSF wrote that:

‘‘Mogoeng CJ, writing for the majority, granted leave to appeal on the basis that this case raised important constitutional issues pertaining to access to courts and our own commitment to upholding and enforcing multilateral treaties to their full extent.

In dismissing (Zimbabwe’s) appeal with costs, Mogoeng CJ held that the duty to develop and apply our own common law, so as to allow the enforcement of foreign judgments within South Africa, was a constitutional duty created post-1994, notwithstanding the injunctions created by the SADC Treaty to enforce judgments of the Tribunal.

The effect of the (majority) CC judgment is that whilst the Tribunal may no longer exist, its decisions are legal and binding and can be enforced within South Africa. To the disposed farmers it means that something may now be done to restore their dignity as the Zimbabwean Government is finally held accountable under the rule of law." [5]

The brief went on to state that:

‘‘Regrettably, a few days after the judgment was delivered, the Zimbabwean Government declared the property to be of diplomatic status, thus protecting it from being sold in execution in terms of the Vienna Convention.’’ [6]

However, the African Court of Human and People’s Rights (ACHPR) casued further dismay when it ruled that it had no jurisdiction to hear the matter. As the HSF noted [7]:

‘‘… the ACPHR has dismissed the application on the technicality that the APCHR’s jurisdiction does not extend to regional courts.

Ben Freeth, one of the applicants, said that:

“It is a cop out by the Commission and says that it is ultimately only there to rubber stamp decisions of the EU executive. It has lost huge credibility as a result of this decision,” 

He added that there is much speculation about the Commission’s decision being influenced by the AU’s decision to appoint Mugabe to a top position in the AU council last year. That development, which puts Mugabe in line to take over the chairmanship of the AU in 2015, coincided with the Commission’s decision.’’ [8]

Developments  

The decision of the Tanganyika Law Society (TLS) to sue the Tanzanian Government before its own High Court, then, announced on 2 July 2014, represents a renewed hope for the Tribunal’s reinstatement. [9]

It is clear that this tactic recognises the difficulty faced by international legal institutions which may not be afforded the same protection of independence that courts may have domestically. Thus, attacking the government’s (external) decision based on its (internal) legal obligations, is a logical way around that obstacle. Should the TLS be successful in its litigation, it will represent a significant victory for those who have been objecting to the unlawful action of the Tribunal’s shutdown. It will also be a tactic worthy of replication in the domestic courts of other member states, particularly in South Africa.

The case is being brought at this moment because the SADC is expected to review the Tribunal’s establishing Protocal at the upcoming SADC Summit in Zimbabwe in August.

‘‘TLS is therefore requesting the court to grant interim orders staying the government of Tanzania from voting on or adopting a new protocol on the tribunal or reaching any decision concerning the tribunal until such time that the constitutional and international law violations have been corrected.’’ [10]

While it remains doubtful as to what the actual outcome of such successful litigation will be – Tanzania’s courts’ jurisdiction being limited to its sovereign territory – at the very least, it opens the opportunity for political pressure to be brought to bear on the government. Watchers of this episode would do well to watch how this case unfolds.

Human Rights Agenda

As the HSF noted previously:

"(We are) concerned that the rule of law and the protection of human rights, yet again, seems to not be a priority for African institutions. It is notable that while the ACPHR did base its decision on a lack of jurisdiction, such a justification speaks more to the fact that there is a lack of political will among African states, and their governments, to protect, promote and respect human rights and the rule of law. While the ACPHR did criticise governments for the manner in which this matter was handled, the fact that nothing meaningful came out of their ruling is little comfort for those people who are being subjected to the worst of the Mugabe regime. [11]

As the de-fanging of the SADC Tribunal has shown, it is troublesome that institutions such as those would be undermined so that officials across governments can shield each other from proper and just scrutiny where it is warranted. The Zimbabwean example particularly, where the only institution that was willing to speak out against the Mugabe regime’s excesses has now been disbanded, is demonstrative of this. The HSF is concerned that, notwithstanding the South African government’s domestic obligations in terms of our Constitution, following our stance on Uganda, that our conduct of foreign policy continues to lack a definitive human rights agenda.’’ [12]

Conclusion

The HSF will watch this case with keen interest. We are hopeful that if the TLS is successful other, well-positioned, organisations in member states will attempt similar action before their domestic courts. The Rule of Law is an important entitlement to all people within the region, especially when the government that should protect them is the one they need defending from.

References

[1] http://hsf.org.za/resource-centre/hsf-briefs/rip-sadc-tribunal
[2] http://hsf.org.za/resource-centre/hsf-briefs/the-sadc-tribunal-the-rule-of-power-versus-the-rule-of-law-the-tribunal-tragedy 
[3] http://hsf.org.za/resource-centre/hsf-briefs/the-sadc-tribunal-lives-on...-kind-of
[4] http://www.saflii.org/za/cases/ZACC/2013/22.html
[5] Note 1.
[6] http://hsf.org.za/resource-centre/hsf-briefs/some-notes-on-sovereignty
[7] Note 1.
[8] http://www.swradioafrica.com/2014/03/07/au-human-rights-court-criticised-over-devastating-sadc-tribunal-decision/
[9] http://www.thecitizen.co.tz/News/TLS-set-to-sue-State--for--killing--tribunal/-/1840392/2369140/-/u4o4nl/-/index.html
[10] http://allafrica.com/stories/201407080938.html
[11] http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71654?oid=559617&sn=Detail&pid=71616
[12] Note 1.

Kameel Premhid – kameel.premhid@gmail.com
Research Fellow
Helen Suzman Foundation