The Future of the SADC Tribunal

Diaspora Diaries with Alex Bell and guest Ben Freeth:  The Future of the SADC Tribunal

Alex Bell talks to Ben Freeth on Diaspora Diaries

15 January 2013

AB: Hello Zimbabwe and welcome to Diaspora Diaries on SW Radio Africa, your independent voice. I’m Alex Bell and on tonight’s show I’ll be joined by former Chegutu farmer turned activist Ben Freeth to talk about the future of the regional Human Rights Tribunal.

As you know, the SADC Court remains inactive more than two years after regional leaders moved to suspend it for daring to rule against the Robert Mugabe regime. Despite widespread condemnation and warnings about what this means for the rule of law in Southern Africa, there has been no attempt to revive the court to fulfil its chief function – protecting the human rights of SADC citizens.

But there is hope the situation will change with the case being brought before the African Commission on Human and People’s rights. Joining me now to talk more about this is Ben Freeth. Ben thank you as usual for joining us on SW Radio Africa. The last two years has been, I guess, a case of wait and see – lots of waiting to see what decisions will be made regarding the fate of the SADC Court; lots of fighting going on from people like yourself who really want to see this Court fully reinstated; and yet absolutely no urgency from regional leaders to revive this incredibly important Court. So where do we actually stand in terms of the Court at the moment and its function in SADC as a regional bloc?

BF: Well I think the final nail in the coffin really took place in August 2012 when the regional leaders met in Maputo and they decided that the regional court could not be approached by individuals any longer at all. Before that obviously the judges had been sent off and unable to hear any cases at all, but it was that decision in August 2012 which was a decision that stopped individuals from being able to approach the court in the future. There have been no changes to the Treaty, there have been no changes to the protocol but this is dictatorial dictatorship at its worst where a group of leaders can get together and they can say this court doesn’t exist any longer, individuals can’t approach it any longer. So the whole separation of powers aspect was breached. And the long road towards tyranny has been started I believe by the SADC leaders doing this to the regional court. So really that’s where the court is at the moment; it’s dysfunctional, it’s a shell of a building sitting in Namibia unable to do its work of meting out justice to the people of Southern Africa.

AB: Ben I think a lot of people seem to get confused about the role the SADC Tribunal is supposed to play mainly because there are so many different groupings that are part of SADC that again act, are toothless bulldogs that don’t do very much. But essentially in very, very basic terms – without this court what does it mean for one, for human rights protection in the SADC region?

BF: Well basically where a country goes into a system of dictatorship, an individual country and the judiciary becomes compromised, the judges have become appointees of the president and the courts fail to function properly, there has to be a court of last resort where that dictator does not have the ability to influence those judges. There has to be an impartial system of justice in order to ensure that the people of that country do not fall under tyranny. And so this was the vision in 1992 when the SADC Treaty was signed – that there should be a court of final appeal and that’s what was set up. The SADC Tribunal finally came into being through the SADC Treaty and was there as the court of final appeal for where human rights failed in a particular country and where justice was not being able to be sought by the citizens of that country. So that basically is what the SADC Tribunal was there for. It was also there to ensure that country to country disputes could be sorted out through a rational kind of judicial system. But the fact that it’s not there now leaves people in a position where, if their countries do fail them in giving justice, there is nowhere left to turn.

AB: The fight of course isn’t over though for the SADC Tribunal, we hope. I know that there is some hope now Ben that maybe a little bit more pressure will come to bear on the SADC leaders for what they’ve done – essentially putting the pin in any attempt to protect human rights of SADC citizens because you, on behalf of your late father-in-law, and farmer Luke Tembani have made this application before the African Commission on Human and Peoples Rights. Maybe you could bring us up to speed on this and really what this means going forward.

BF: Well I think the wonderful thing about the African Commission on Human and Peoples Rights is that they have accepted our application; they have become seized of it and they, towards the end of last year, wanted our legal argument. So that legal argument is going in this week and has been put together to basically bring all these issues to the fore in the African Commission, which is part of the African Union, set up as a result of the African Union’s commitment to human rights wherever in Africa. And so we’ve put that application in, the legal argument is all done, it’s just the finalisation of the translations into French and Portuguese. So it’s very exciting that this historic case is going into the African Commission now. All 14 heads of state and their governments are respondents to that application and we do hope that it puts pressure through the African Union, through bodies higher than the African Union and the world’s United Nations etcetera to, on these 14 heads of state and their governments for taking away this court, the SADC Tribunal for the citizens of southern Africa. So it is very exciting.

AB: Ben I’m sure you are as surprised as I am that to date there hasn’t been what we would have expected, which was outcry, the kind of shock that we’ve spoken about many times over the last few years. But it seems that going to the African Commission and spurning them into action, it seems kind of sad to me. I was kind of hoping that they would have done it automatically.

BF: Well yah I think, you know, all these big bodies you need to put in the complaint and then it’s a long and slow and arduous process to actually get it through. It’s the same with the United Nations. All these kind of big bodies seem to be extremely slow in reacting to terrible situations within countries around the world so I think the important thing is that they have become seized of it, they are wanting further argument, they haven’t thrown it out and we’re putting our argument in and we hope to have it argued properly before the eyes of the world so that everyone can see exactly what is going on here. Whether the SADC leaders are acting like tyrants, like dictators or whether they’re going to come round to the understanding that their decision has to be dependent on what their people say and what their people think and what their people want.

AB: A lot of criticism of course has been about the fact that the case in particular that the SADC Tribunal suspension is linked to has been about the land grab campaign in Zimbabwe, the so-called land reform programme. But this is so much more than issues about property rights and compensation Ben. This has become a fight I would assume about human rights generally. Would you agree?

BF: Well absolutely. I think the fact that the two applicants that have gone to the African Commission are from Zimbabwe, the fact that they are both farmers or that there’s one is a black farmer and one white farmer is indicative of the fact that human rights within Zimbabwe are obviously in crisis at the moment; that human rights on the land are where the nub of the human rights crisis has stemmed from essentially. It’s where the majority of the people of Zimbabwe are – on the land but I think the fight that we are fighting is far bigger than where the nub of that crisis is. The fight that we are fighting is something that is for all the people of southern Africa, it’s a fight for justice within Southern Africa, for human rights within Southern Africa, for the development of a system of honesty and justice so that the people of Southern Africa can in the future thrive. We all understand and know full well that where honesty and justice, where truth are all allowed to be casualties within countries, those countries do not develop, they do not go forward, they cannot feed themselves and everyone suffers as a result. There’s mass migration out of them. People vote with their feet by going to countries where truth does prevail, where there is justice and where there is honesty because those places are going forward. So this is a fight that I believe, goes to the core of where the problems lie, where, why it is that although we’ve got this huge potential within Southern Africa, we’re not going forward in the way that we should be going forward. So this is something for our children, this is something for the future generation and Luke Tembani, he’s of the older generation, I’m of a younger generation, he’s black, I’m white but we are fighting for the same thing – we want our children, our grandchildren to have a better future within Southern Africa.

AB: Ben it seems also at this point with Zimbabwe now heading towards yet another election period with still ongoing political uncertainty, human rights abuses that are still occurring, being committed, a complete lack of respect for the rule of law – it seems quite critical that this case is now before the African Commission at this particular time.

BF: Well I think in Zimbabwe we are going to go into an extremely difficult year in 2013; I’m very concerned about what’s going to happen to particularly our more isolated vulnerable rural people in Zimbabwe. There seems to be nothing in place to really stop what is going to happen. We know what happened in 2008, in 2005 and 2002, in 2000, in all those elections and 2013 appears to have no real differences. All the things that were in place in previous elections remain in place and so it is very concerning as we go into 2013 and it’s absolutely imperative that there are systems of justice, systems of international justice in place to make sure that perpetrators of violence against people within Zimbabwe are able to be brought to book in some way. And so this case to the African Commission is obviously looking at how we can have that further recourse. But we need far more than that. Here a court is one thing but a court is only, it’s there as a buffer once things have happened. We need in this country people who are going to be peace keepers who are prepared to come in and to make sure that the violence cannot take place in the same way that it has taken place before. I’m very concerned that we are entering a year which will go down in the annals of Zimbabwean history as a year where the blood flowed and none of us want that in Zimbabwe. I believe that it’s up to the Prime Minister of Zimbabwe, it’s up to those authorities that are supposed to care about the people, to mobilize international support to ensure that this thing cannot happen yet again.

AB: Well that was former Chegutu famer Ben Freeth. If you’d like any more information about the case or if you’d just like to leave your comments, you can email me on or find me on Twitter. For now though we’ve come to the end of tonight’s Diaspora Diaries but join me at the same time next week.