New Protocol on SADC Tribunal

The New Protocol on the SADC Tribunal

BILL WATCH 42/2014

The Zimbabwean by Veritas

10 November 2014 

As noted in Bill Watch 32/2014 of 28th August, the SADC Summit at Victoria Falls adopted a new Protocol on the SADC Tribunal on 18th August. The full text of the new Protocol was not then available. [The Protocol is available from the addresses given at the end of this bulletin; the full text of the SADC Summit communiqué is also available]. When it became available the next question was whether the adoption of the Protocol was followed by any further developments and Veritas has been tracking what is happening about it coming into force.

The position, however, remains that the new Protocol on the Tribunal is not yet in operation, and the new-look SADC Tribunal is unlikely to be launched soon.

Adoption of Protocol Only a Preliminary Step

Under the SADC Treaty, Summit decisions are taken “by consensus” – not by majority vote. This means the Protocol would have been regarded as adopted at the meeting of Heads of State and Government on 18th August because no member present raised a formal objection to its proposed adoption.

Only 9 Signatures

When it came to the signing ceremony, although all 15 SADC member States were represented at the Summit, only 9 of them [including Zimbabwe] signed the Protocol. The consequences of this are indicated below.

Signature and Ratification by Ten SADC States Necessary for Protocol to Come into Force

Article 53 of the Protocol provides that it will come into force 30 days after ratification by two-thirds of the member States [10 of 15]. In addition, only a member State that has signed the Protocol can ratify it [article 52].

Ratification is the post-signature process by which a State confirms its adherence to an international agreement signed by its Head of State or by his or her authorised representative. [Each state has its own rules and procedures for ratification. In Zimbabwe the Constitution states that Parliament must approve an international agreement signed by the President or a person authorised by him; so it is only after Parliament’s approval that the President can sign an instrument of ratification and have it deposited with the SADC Executive Secretary by the Ministry of Foreign Affairs.]

Not even early ratification by all the nine States that have signed the Protocol [and none have done so yet], will bring it into operation. Nine ratifications are not enough. The coming into operation of the Protocol will have to wait for at least one of the six as yet non-signatory member States to sign it, and at least ten signatories to ratify it. How long this will take will depend on the reasons the non-signatory States had for holding back from signing of the Protocol although letting its adoption go ahead. There is no time-limit for the remaining signatures.

The six States that did not sign were:

  • Angola
  • Botswana
  • Madagascar
  • Mauritius
  • Seychelles
  • Swaziland

Reasons for Not Signing the Protocol

Although no explanations have been publicly reported for the failure of six member States to sign the Protocol, their concerns may well have centred on the need for SADC to finalise consequential amendments to the SADC Treaty itself, before allowing the Protocol to come into operation.

It must be remembered that the 2013 SADC Summit in Malawi not only instructed the Committee of Ministers of Justice/Attorneys-General to negotiate a new Protocol on the Tribunal, but also tasked it with identifying provisions of the SADC Treaty and other protocols and legal instruments that would require consequential amendments. It would be understandable if some member States wish to avoid further problems and embarrassment by ensuring that there is enough time for the second part of the Committee’s task to be completed and any necessary action implemented by a subsequent SADC Summit, before SADC proceeds to launch the new-style Tribunal by appointing judges and supporting staff.

In other words, the States that have so far hesitated to sign the Protocol may merely want to be sure that undue haste at this stage does not lead to legal mistakes in the course of tidying up the situation caused by Zimbabwe’s rejection of the Tribunal’s decisions against it and its successful campaign to persuade the SADC Heads of State, first to stop the Tribunal functioning and then to emasculate it.

The concerns of these six States may, however, go deeper than that. Their failure to sign the Protocol could indicate fundamental reservations about finally transforming the Tribunal into what a learned South African legal commentator has called “a travesty”, now that it has such reduced jurisdiction.

Reduced Jurisdiction of the Tribunal

Only States Parties Will be Able to Approach the Tribunal

Only States parties to the Protocol will be able to refer cases to the Tribunal if/when it eventually becomes operational again, i.e., after the Protocol comes into operation and judges are appointed and sworn in.

In accordance with the decision of the 2013 SADC Summit in Malawi, the jurisdiction of the Tribunal will be limited to disputes between member States. This is reflected in Article 33 of the Protocol, which provides that it will only have jurisdiction over the interpretation of the SADC Treaty and Protocols relating to disputes between Member States.

The Tribunal will have no power to deal with any other complaints. This means that persons or organisations who may be denied justice in their national courts will have no regional court to appeal to as was the intention when the SADC Tribunal was first set up.

The Present Position of the Original Protocol

The new Protocol makes provision for the repeal of the original Protocol, to become effective when the new Protocol itself comes into operation.

Meanwhile, as has been the case for the last four years and on paper only, the original Protocol continues in force and the SADC Tribunal continues to exist, by virtue of the SADC Treaty of 1992. But it is a phantom court without judges, and unlikely to become operational in the near future.

Continuing Opposition to the New Protocol

Bill Watch 32/2014 mentioned that, on the eve of the Victoria Falls Summit, the SADC Lawyers Association [SADCLA] had called for the launching of court cases in individual SADC member States seeking to prevent their Governments from accepting the new Protocol.

One such case is known to have been filed so far. The Tanzania Law Society started proceedings in the High Court seeking to stop the Tanzanian Government from participating in any decision to adopt a new Protocol on the SADC Tribunal. Their argument was that this would be contrary to the Tanzanian Constitution. The Tanzanian Attorney-General has asked for the action to be dismissed as untenable. Although the case was filed just before the SADC Summit took place, the court hearing was towards the end of September. A decision is awaited.

The SADC legal fraternity [including ex-judges of the Tribunal] seem on the whole very clear that the dismantling and reassembling of the Tribunal by successive SADC Summits has been in breach of the rule of law and see it as a denial of access to justice at regional level. It is therefore likely that lawyers in other SADC countries may follow the Tanzanian example and bring lawsuits in their national courts as suggested by the SADCLA.

African Commission on Human and Peoples’ Rights Rejects Complaint about SADC’s Suspension of the Tribunal

In December 2011, after the SADC leaders suspended the operations of the SADC Tribunal, Zimbabwean farmers Luke Tembani and Ben Freeth took action at the continental level. Invoking the African Charter on Human and Peoples’ Rights, they challenged the legality of the suspension of the SADC Tribunal in an application to the African Commission on Human and Peoples’ Rights.

Background:

Mr Tembani and the group of farmers being represented by Mr Freeth [the plaintiffs in the case of Campbell and Others] all won cases against the Zimbabwean government in the Tribunal. But, the Zimbabwe government refused to implement the Tribunal’s orders against it and persuaded SADC leaders, not only to stop the Tribunal accepting new cases and holding hearings [in August 2010], but also to stop appointing judges to keep the Tribunal operational [in May 2011]. This paralysed, but did not legally abolish, the Tribunal.

The basis of the Tembani/Freeth complaint to the African Commission was that the SADC states, in abruptly suspending the Tribunal, had infringed the not only the SADC Treaty, but also articles 7 and 26 of the African Charter on Human and Peoples’ Rights guaranteeing access to courts, and principles of international law. All SADC Heads of State were cited as respondents, together with SADC itself and its Council of Ministers.

The complaint asked the Commission to do two separate things:

1. to refer the case to the African Court of Human and Peoples’ Rights [Note: Mr Tembani and Mr Freeth could not themselves approach the African Court direct, because individual citizens of AU countries have no right to do that. The Commission can, however, refer a suitable case to the court, on behalf of an individual or organisations.]

2. for the Commission itself to declare that the actions of the SADC Summit regarding the SADC Tribunal had infringed the SADC Treaty, the African Charter and international law, and that the SADC Summit should accordingly reinstate the Tribunal and SADC member State should enforce the decisions handed down by the Tribunal.

Progress of the case

The case proceeded in three stages:

Stage 1 called for the Commission to decide whether or not, and to what extent, it should allow the case to proceed. In early 2012 the Commission reached two decisions: first, it rejected the applicants’ first request to refer the case to the African Court [because, in the Commission’s view, it did “not meet the requirements for referral as provided for in the Commission’s Rules of Procedure”; second, however, it agreed to be “seized with”, to give further consideration to, the applicants’ second request, for a declaration from the Commission itself.

Stage 2 ended in October 2012, when the Commission ruled it would proceed to consideration of the merits of the case, but only against the 14 cited SADC member States, not against SADC or its Council of Ministers, both of which had been cited in the original complaint. This resulted in the Commission’s calling for submissions on the merits from the applicants and the 14 remaining respondents.

Stage 3: The merits of the complaint:  The lawyers acting for Mr Freeth and Mr Tembani lodged their submissions early in 2013. Of the 14 respondents, only Mauritius made submissions in reply. The Commission considered the case during its October-November 2013 meeting. It was only on 1st March 2014, however, that its decision to reject the application was conveyed to the applicants in the form of a lengthy document setting out the Commission’s reasoning and its conclusion. The ground for rejection was that the African Charter articles that the applicants had invoked do not guarantee access to regional courts such as the SADC Tribunal, but apply only to access to national courts. [Full text of the 49-page memorandum available from the addresses at the end of this bulletin.]

Comment

The Commission’s rejection of this application will have come as a disappointment to those who believe that the rule of law, including access to justice, should apply not only at the national level but also at the regional and international level.

Its interpretation of the African Charter as protecting only national courts, but not regional courts, has drawn adverse comment. In fact there were no regional courts in existence when the African Charter was drawn up, so it could not have referred to regional courts which did not then exist. Critics have said the Commission’s decision is an example of “absurd literalism”, an out-of-date and now discredited approach to the interpretation of international human rights instruments like the African Charter.

Newer and more progressive thinking, backed by decisions of international courts and authorities on international law, is that such instruments should be construed purposively, with due regard to changes in circumstances and the evolution of new institutions, and always aiming at enhancing rights, not restricting them.

It is, however, significant that the Commission emphatically stated that a State’s “denial of the right of access to a national judicial forum will amount to a definite and inexcusable violation of Article 7(1)(a)” of the African Charter. Mr Freeth and Mr Tembani, and others who hoped that their application would succeed, can take some comfort from this forthright statement.

Moreover, there is no hint anywhere in the Commission’s ruling of approval or endorsement of the dismantling of the SADC Tribunal.

It is hoped that, notwithstanding this rebuff from the Commission, work will continue to ensure an effective legal remedy at both regional and continental levels for aggrieved individuals who have been denied the right of access to courts in their own countries or regions.

ENDS

http://www.veritaszim.net/node/1151

http://www.thezimbabwean.co/politics/73993/both-houses-of-parliament-are.html

 

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