African Court - SADC Tribunal closure case summary

February 2013

SUMMARY – AFRICAN COMMISSION CASE

Zimbabwe: Top African Court Urged to Tackle SADC Breach of Human Rights

Two dispossessed farmers in Zimbabwe took their case against the Southern African Development Community (SADC) to Africa's top human rights body, the African Commission on Human and People’s Rights, after the suspension of the regional rights court, the SADC Tribunal, in 2011.

All 15 SADC leaders have been cited as respondents in the landmark legal case, launched by farmers Luke Tembani and Ben Freeth, in place of his late father-in-law Mike Campbell. The application was originally made to the SADC Tribunal in 2012 and is the first time in legal history that a group of heads of state is being cited by an individual as the respondent in an application to an international court.

In March 2012 the African Commission on Human and People’s Rights (ACHPR) made a preliminary ruling to be seized of  the formal complaint lodged with it on behalf of Zimbabwean farmers Luke Tembani and Ben Freeth.

Following on from this, the case was handed to the African Court on Human and People's Rights. The Court forms part of the Commission's protective mandate, in that it makes final and binding decisions on human rights violations. However, only twenty six African states have ratified the Protocol that established the court, and this does not include Zimbabwe.

The Commission overruled procedural objections to the case, and directed in November 2012 that the claim be admitted for consideration by the Commission.

The communication forwarded to the ACHPR on behalf of Tembani and Freeth in January 2013 submitted that the suspension and permanent ouster of the SADC Tribunal is unlawful for the following reasons:

• It violates binding provisions of the African Charter, the SADC Treaty and the International Covenant on Civil and Political Rights by:

o Infringing the right of access to court
o Interfering with the independence, competence and institutional integrity of the SADC Tribunal
o Terminating existing procedures and vested remedies
o Violating the rule of law, and
o Trespassing on the doctrine of separation of powers;

• It is procedurally irregular, because it constitutes an interference with the existence and function of an essential Treaty organ by mere executive decree, not by any amendment of the Treaty;

• It constitutes an irrational and arbitrary exercise of executive power for which no valid rationale exists;

• It is in bad faith and motivated by extraneous considerations:  instead of acting on the SADC Tribunal’s referral of the recalcitrant State member (Zimbabwe) in order to support the SADC Tribunal and enforce its rulings, the Summit (of SADC heads of state) in the result has defied the Tribunal and effectively created impunity for the defaulting State as regards the rulings of SADC’s highest adjudicative institution.

Commenting on the violation of the rule by the SADC heads of state, the legal team quoted Judge President Mzikamanda of Malawi, who wrote in the context of the suspension of the Tribunal:

“Rulers have an even greater obligation to observe the rule of law at all times in order to reinforce the rule of law and eliminate the possibility of the emergence of the rule of men…. This will ensure enjoyment by the individual of the rights and liberties guaranteed by the constitution.  Thus an independent judiciary is a critical element to the rule of law.”

The legal team concluded that because the impugned decisions are “contrary to the essence of justice” in that they purport to oust the Tribunal’s jurisdiction in defiance of the rule of law, they are invalid and should be annulled and their effects remedied.

A date for the hearing is still to be set.

ENDS