SADC Tribunal - background, scope, WTI review

THE SADC TRIBUNAL

SET UP, SCOPE, REVIEW AND OUTCOME:  JUSTICE DENIED

 

 

The establishment of the Southern Africa Development Community (SADC) Tribunal was a major event in the history of SADC as an organization and in the development of SADC law and jurisprudence.

The Tribunal was established in 1992 by Article 9 of the SADC Treaty as one of the institutions of SADC. The Summit of Heads of State, which is the Supreme Policy Institution of SADC pursuant to Article 4 (4) of the Protocol on Tribunal, appointed the Members of the Tribunal during its Summit of Heads of State or Government held in Gaborone, Botswana on 18 August 2005.

The SADC Tribunal was set up to ensure that every country within the Southern African Development Community (SADC) respects and conforms to the principles and objectives enshrined in the SADC Treaty of 1992, notably:

  • Peace, security and solidarity
  • Human rights
  • Democracy
  • The Rule of Law
  • Equality
  • The peaceful settlement of disputes

The Scope of the Tribunal (extract)

  • Any person (natural or juristic) can bring a matter before the Tribunal alleging a violation of SADC law by a Member State.  Such person need not be a citizen of a Member State.
  • Employees of SADC can also bring their labour disputes to the Tribunal as the Tribunal has exclusive jurisdiction over such disputes.
  • The Tribunal also has exclusive jurisdiction where Member States have disputes with SADC or its institutions.
  • SADC Summit or the Council of Ministers can also bring a matter to the Tribunal where they are seeking an advisory opinion. Member States or persons cannot by themselves seek an advisory opinion from the Tribunal…..

The inauguration of the Tribunal and the swearing in of the Members took place on 18 November 2005 in Windhoek, Namibia. The Registrar of the Tribunal was appointed by the Tribunal pursuant to Article 12 of the Protocol on Tribunal.

To ensure the independence of the Tribunal, Article 17 (2) of the SADC Treaty provides that in performance of their duties, the Members of the Tribunal shall be committed to the international character of SADC and shall not seek or receive instructions from any Member States, or from any authority external to SADC.


http://www.sadc.int/tribunal/

Summary of Developments from 2010

REVIEW OF SADC TRIBUNAL

The SADC Summit of 2010 Ordered a Review of the Role, Functions and Terms of the SADC Tribunal

Between 2007 and 2010, the SADC Tribunal adjudicated on 20 cases. The majority involved individuals taking the Zimbabwe government to court because of the breakdown of the rule of law and gross human rights abuses.  Zimbabwe had acted with impunity until the highly respected Tribunal judges - drawn from across the region - stood up to the Mugabe government and ordered it to stop brutalising its own population.  Zimbabwe lost every single case.

On August 17, 2010, under pressure from Zimbabwe, the Summit of the SADC heads of state and government decided "that a review of the role functions and terms [sic] of reference of the SADC Tribunal should be undertaken and concluded within 6 months."

WTI Advisors Ltd, Geneva – Draft Review Presented February 2011

The review was conducted by WTI Advisors Ltd, Geneva, an affiliate of the World Trade Institute.  WTI Advisors upheld the court’s decisions and further stated that the Tribunal was properly constituted. The report was presented to a SADC Council of Ministers meeting in February 2011, who were said to have endorsed it.

The review found that SADC law should be supreme over domestic laws, and all decisions made by the court should be binding and enforceable within all member states. 

Key findings of Review

  • The SADC Tribunal has the legal authority to deal with individual human rights petitions.
    SADC Community law should be supreme to domestic laws and constitutions.
  • Decisions of the SADC Tribunal should be binding and enforceable within the territories of all SADC member states.
  • The SADC Tribunal was legally established in terms of the SADC Tribunal Protocol.
  • The SADC states waived the requirement to ratify the SADC Tribunal Protocol which became a part of the SADC Treaty by agreement and is binding on all SADC member states.
  • Zimbabwe may not turn around to say the Tribunal was not legally constituted when they participated in all the proceedings of the SADC Tribunal and nominated a judge for appointment.
  • A Member State may not rely on its national laws (including norms of constitutional status) as a defense against a violation of an international obligation.

SADC SUMMIT OF MAY 2011

May 2011: Despite the recommendations of WTI Advisors Ltd, the SADC Tribunal was effectively dissolved at the extraordinary SADC Summit of Heads of State and Governments in Windhoek, Namibia, on 20 May 2011, and the judges were unilaterally dismissed.

The Summit communiqué noted its decisions as follows:

  • Mandated the Ministers of Justice/Attorneys General to initiate the process aimed at amending the relevant SADC legal instruments to change the jurisdiction of the Tribunal and to submit a progress report at the Summit in August 2011 and a final report for presentation to the Summit in August 2012.
  • Not to reappoint members of the Tribunal whose term of office expired on August 31, 2010.
  • Not to replace members of the Tribunal whose term of office will expire on October 31, 2011.
  • Reiterated the moratorium on receiving any new cases or hearings of cases by the Tribunal until the SADC Protocol on the Tribunal has been reviewed and approved.

The intention of SADC Heads of State in suspending the SADC Tribunal was to limit the jurisdiction of the Tribunal to inter-state disputes and ensure that individuals could no longer take their governments to court, thus denying them access to justice.

Implications of the illegal suspension

  • The present Tribunal became defunct.
  • Pending cases could not be heard.
  • No new cases could be brought by individuals against their governments.

This illegal decision sent “the worst possible signal” to potential investors, donors and the international community…”  said the former Judge President, Justice Ariranga Pillay.

SADC SUMMIT OF AUGUST 2012

During mid August, leaders of SADC took a momentous decision in Maputo, Mozambique, to shut the doors of the SADC Tribunal to the region’s citizens, preventing them from seeking justice and undermining the rule of law. 

The shocking decision, which was taken at the annual summit of SADC Heads of State and Government, not only left the Tribunal in limbo but also rendered it completely toothless by denying individual access to the court.

The summit's final communique explained that SADC leaders had “resolved that a new Protocol on the Tribunal should be negotiated and its mandate confined to interpretation of the SADC Treaty and Protocols relating to disputes between Member States.”

RESPONSE FROM THE INTERNATIONAL COMMISSION OF JURISTS, THE SADC LAWYERS’ ASSOCIATION AND THE SOUTHERN AFRICA LITIGATION CENTRE

The International Commission of Jurists (ICJ), SADC Lawyers’ Association (SADC LA) and the Southern Africa Litigation Centre (SALC) all expressed their deepest disappointment at the decision taken by the SADC Summit of Heads of State and Government on the SADC Tribunal. Their statement noted:

“The Summit’s Final Communiqué explains that the region’s leaders had ‘resolved that a new protocol on the Tribunal should be negotiated and that its mandate should be confined to interpretation of the SADC Treaty and Protocols relating to disputes between member states’. That decision effectively destroys an integral SADC organ – the currently established Tribunal – and denies the SADC people the right to approach the court for justice. It is, as Archbishop Emeritus Desmond Tutu observes, ‘a tragedy. It is a blow against accountable government and individual rights’.”

January 2013

 


[1] SADC Tribunal:  “The SADC Tribunal in 20 Questions”

http://www.sadc-tribunal.org/docs/A_Guide_to_SADC_T.pdf