SA allowed Mugabe to kill SADC Tribunal

‘Selfish JZ allowed Mugabe to kill SADC Tribunal’

Sunday Tribune / Independent Online March 3 2013
By Peter Fabricius

The former Chief Justice of the disbanded Southern African Development Community (SADC) Tribunal has accused President Jacob Zuma of “selfishly” standing back and letting Zimbabwe President Robert Mugabe kill the tribunal because it ruled against him on his anarchic land grabs.

Judge Ariranga Pillay said South Africa could have used its power as the SADC’s largest state and its “moral authority” to prevent the tribunal being emasculated. He was speaking at a seminar in Pretoria organised by the University of Pretoria’s Department of Political Sciences and the South African Foreign Policy Initiative.

Pillay described how Zuma and other SADC leaders had effectively killed off the tribunal at Mugabe’s behest at summits in August 2011 and August 2012, both of which Zuma attended.

He said they dissolved it because the tribunal had ruled in 2007 and 2008 that the Zimbabwe government’s seizure of the farm of white farmer Mike Campbell without compensation was racist and unlawful and had violated the SADC Treaty because he had been denied the right to complain to the Zimbabwe courts.

Pillay said it was ironic that Mugabe had been one of the SADC leaders who had originally established the tribunal to ensure the adherence of member states to the SADC Treaty, including its Article 4, which obliges them “to act in accordance with human rights, democracy and the rule of law”.

It was this article which the tribunal invoked when it ruled against the Zimbabwe government, Pillay said.

Mugabe rejected the tribunal’s rulings and its jurisdiction and raised his objections at SADC summits. The 2010 summit suspended the tribunal pending an investigation into its mandate, and then in August 2012 effectively destroyed it by deciding it could no longer try complaints by SADC citizens against their own governments.

This was despite the advice of outside consultants commissioned by SADC.

And, Pillay said, the SADC summit decision had left SADC citizens with no recourse to justice when they are abused by their own governments. The disbandment of the tribunal had also left corporations unprotected, he noted.

Nicole Fritz, executive director of the Southern Africa Litigation Centre, suggests if the tribunal had avoided tackling Zimbabwe’s land reform - one of the most politically-sensitive issues in the region - as one of its first cases, it might perhaps have survived to consolidate its credibility and powers enough to take on such issues later.

Pillay responded that he was not a politician but a judge and had had no grounds to throw out the Campbell case “on some specious technical grounds. I decided on the facts before me”.

Fritz noted that even Botswana’s President Ian Khama had expressed his disapproval of the tribunal. This was ironic since he had expressed full support for the International Criminal Court (ICC) and its indictment of Sudanese President Omar al-Bashir.

Fritz suggested that was because Khama had nothing to fear from the ICC whereas the SADC Tribunal had adjudicated a complaint from his country’s San people about being pushed off their land.

Laurie Nathan, head of the Centre for Mediation in Africa, at the University of Pretoria, said the surprising thing was that the SADC leaders had ever established the tribunal in the first place.

Their decision reflected the SADC’s hierarchy of values, in which human rights and the rule of law were subordinate to the respect for regime solidarity and state sovereignty.

SADC states had always been “implacably opposed” to any transfer of national sovereignty to a regional body like the tribunal because their own sovereignty was so fragile. That was because it had been acquired so recently from colonial powers and because some states still did not enjoy de facto sovereignty as they did not have a monopoly of legitimate power over all their territories.

He said SADC had established the tribunal only because of pressure from Western donors.