Mooted SADC court slammed as 'unconstitutional'

Outcry over SA’s attempts to join other governments in establishing a new regional court that 'disregards individual citizens'

Rand Daily Mail - Carmel Rickard

22 April 2015

In a move of crucial importance for human rights in southern Africa, lawyers are challenging Pretoria’s attempts to join other governments in establishing a new regional court. They object to the court on the grounds that it will be barred from hearing disputes brought by individual citizens against their governments.

The Law Society of South Africa (LSSA) says such moves by Pretoria are unconstitutional and it has asked the high court to declare as invalid the actions by President Jacob Zuma and the ministers of justice and of international relations, to support, vote for and sign documents related to the planned new tribunal.

During the South African Development Community (SADC) summit at Victoria Falls in 2014, Zuma was one of a number of heads of state who signed an agreement in terms of which the new regional tribunal would be established. This Protocol must now be ratified by Parliament or its equivalent in each country, but if the LSSA has its way, there will be no ratification in South Africa and the planned new tribunal will not get off the ground.

This is because the LSSA is concerned that the new tribunal will effectively be an interstate court, adjudicating only matters between states.

Essentially the problem with the planned court, according to the LSSA, is that it replaces a tribunal which accepted matters from both states and individuals. By precluding citizens from accessing the new court, the Protocol reduces the rights of citizens as guaranteed in the constitution — and this without any public consultation.

Co-chairs of the LSSA, Busani Mabunda and Richard Scott, said the previous tribunal — set up under the SADC treaty and based in Windhoek — received 30 matters, 24 of which were finalised before the tribunal was effectively shut down. All these matters were brought by individuals. This showed the need experienced by individuals for a forum to challenge governments on human rights issues, while it was highly unlikely that states would need to make use of the planned tribunal since they could deal with most issues via diplomatic channels.

The LSSA’s founding affidavit notes that its purpose is also to declare unconstitutional the “whole process of suspending the (previous) Tribunal” in 2010, as well as the failure to appoint judges for that tribunal; and for everything done in an attempt to ratify the 2014 Protocol that would set up an alternative forum, to be held invalid.

These processes were unconstitutional, according to the LSSA, because their objective was “to infringe or deprive the vested rights of citizens to have access to the Tribunal as set out in the SADC treaty”.

The LSSA says Zuma has “acted in a manner which infringes the citizen’s right of access to justice”. While former presidents Mandela and Mbeki supported the SADC treaty for the benefit of South Africa’s citizens and to promote South Africa’s constitutional values to the SADC region, those “decisions and actions” have been “slowly inhibited by the actions of (Zuma)”.

The SADC tribunal was originally established as an integral part of the initial SADC treaty to be “the community’s judicial organ”. Under the 2000 Protocol that set up the initial tribunal, it was an important forum for citizens whose home country lacked a judicial system that would adequately deal with violations of their rights.

In August 2010, the SADC ministers of justice recommended to the SADC summit that the tribunal’s role, functions and terms of reference should be reviewed.

Although the LSSA’s papers do not say as much, this decision was taken at the insistence of Zimbabwe’s President Robert Mugabe, furious that the tribunal had repeatedly found in favour of Zimbabwe citizens who complained of human rights violations in that country.

World Trade Institute (WTI) advisors were commissioned to undertake the review after SADC failed to appoint new judges to replace those whose terms of office had expired. Left with no quorum, the tribunal has been unable to continue its work.

Among other recommendations, the WTI advisors said the tribunal should continue to have jurisdiction over disputes between states and individuals. In 2012, however, the SADC summit resolved that a new protocol should be negotiated for a tribunal whose mandate should be confined to disputes between member states.

This protocol “adversely reduces the jurisdiction of the SADC tribunal”, says the LSSA. Yet discussions about the decision, which significantly affects the human rights of individuals, were conducted “solely by the heads of state and governments of the SADC”, and its organs and officials, “to the exclusion of citizens” of member countries.

The LSSA has written a number of letters to Zuma and the ministers asking them to clarify their position on the issue, and then telling them of the pending litigation, all without significant response.

According to SA’s constitution, the president must “respect, protect, promote and fulfil” the guarantees in the Bill of Rights when entering into international agreements. Any action in conflict with these principles is unconstitutional and thus unlawful.

The SADC’s member countries include about 240 million citizens whose human rights would be affected by changes in the way the tribunal operates. In addition, human rights protections were linked to economic development.

The jurisdiction of the proposed tribunal “inhibits the right of access to justice as well as the advancement and protection of human rights in general”, says the LSSA.

The right of access to justice was infringed with the suspension of the original tribunal and that infringement continues with the planned new forum. According to the LSSA, Zuma was not entitled to reduce the existing rights of South African citizens without first consulting them and obtaining their agreement. To reduce their rights without that prior consultation was a contravention of the constitution.

The LSSA says that the president and the ministers ought, in an open and democratic society, to have responded with answers that had been sought by the law society. Failure to make any meaningful response “demonstrates a disregard of the constitution”, of the constitutional duties owed by Zuma and the ministers — and of the rights of South Africans. It was conduct that “should be frowned on” by the court.

In particular, there had been no response to the question on whether there was any public participation over the planned changes to the tribunal, and the LSSA specifically challenged the president and the ministers “to fully disclose” to the court “any such public participation prior to taking action in voting in favour of a proposal resulting in the deprivation of existing rights of (South African) citizens”.

Commenting on the court action, the LSSA’s Scott said that from the perspective of his organisation, it was “necessary to stand up and say these things”. ‘We owe it to every citizen to protect their rights”, he told the RDM.

The association’s attorney in the matter, Thipe Mothle, said that Zuma and the ministers had noted their intention to oppose the application. A meeting would be held between the opposing legal teams next week to work out dates for filing further affidavits.

The LSSA is a member of the Southern African Development Community Lawyers Association, which has resolved to bring similar applications in all member countries so that the new tribunal will not go ahead.

Executive director of the SADC Lawyers Association, Makanatsa Makonese, told RDM that so far, South Africa and Tanzania had gone furthest with a challenge to the tribunal, but that members in other countries were working on similar action.

“We are not trying to fight the governments of the region,” she said, “but we want to emphasise that a tribunal should deal with the needs of the people as well as of states.”

Among countries experiencing delays in getting challenges off the ground are Mozambique, where a minimum 2 000 signatures are required before any constitutional application will be accepted, and Zimbabwe — where the highest court has already expressed itself strongly against the previous tribunal which permitted individual access.

See LSSA's affidavit here

http://www.rdm.co.za/politics/2015/04/22/mooted-sadc-court-slammed-as-unconstitutional