Rising against the silencing of the SADC Tribunal: Tanzania

Author: Gertrude Mafoa Quan
Candidate Attorney; LLM (Multidisciplinary Human Rights) student at the Centre for Human Rights, University of Pretoria

‘We have created a monster that will devour us all’.

These were the words of Tanzanian President Jakaya Kikwete regarding the SADC Tribunal. This is at best an expression that is the epitome of the fear of SADC leaders of an existing and functioning Tribunal.

Like in many other regions, the SADC tribunal served as the mechanism through which the region’s dispute could be settled. One of the goals of the treaty was to establish a tribunal (which it did) and that the “[t]ribunal shall be constituted to ensure the adherence to and the proper interpretation of the provisions of this Treaty and subsidiary instruments and to adjudicate upon such disputes as may be referred to it” ( SADC Treaty, 1992, Article 16.1). Perhaps one of its most striking promises was in Article 4(c) which bluntly states that ‘ SADC and its Member States shall act in accordance with the principles of human rights, democracy, and the rule of law’. The implication is that all member States could indeed be held accountable should any of the said principles in Article 4(c) be violated. According to the Protocol on the SADC Tribunal, subject to the exhaustion of local remedies, all companies and individuals may approach the Tribunal to seek remedy if and when a member State has infringed on their rights (Article 15).

One of the features of the Protocol that was somewhat alarming was that where member States do not comply with the Rulings of the Tribunal (insinuating that Member States do not have to comply with the Rulings of the Tribunal), then such matters should be referred back to the Summit for review. It may be beneficial to highlight here that the Summit’s decision making is by unanimity. Perhaps this provision was made deliberately to ensure that absolute power and control of the Tribunal remained with the Summit. How does one seek remedy from a Tribunal when the decision makers of the Tribunal are the very people who have infringed on his/her rights? Who brings the duty-bearer to book when he is the ‘watch dog’? Who watches over the ‘watch dog’? It is therefore not surprising that we have witnessed the abrupt death of the Tribunal and all its goals have been buried with it. What happened to the principles of democracy? Has the Rule of Law no longer got a place in the SADC region? Has the need for the protection of human rights not yet reached the shores of the region? What about the various democracies that are present in the region? South Africa (arguably the superpower in the region whose Constitution has been hailed as one of the best in the world?) Namibia? The country which is home to the Tribunal. What initially started as a Tribunal which allowed access to individuals has now become a Tribunal solely for the discussion of the interpretation of Protocols and a Tribunal to decide on inter-State disputes if ever any of the countries decide to take the other to the Tribunal.

In my view, the demise of the Tribunal is embarrassing for the Southern African Community as a whole seeing that similar regional instruments are functioning relatively well and are not in danger of being closed down for fear of individuals using them as legal recourse. The closing down of the Tribunal is simply a move to deny citizens their right to have access to the Tribunal. What is to become of Citizens whose home countries lack a proper judicial system that will adequately address human rights violations?

As a SADC citizen and a future human rights lawyer, my conscience has tasked me to appeal to all Tanzanians and indeed all SADC citizens to stand in unity and oppose the closing down of the SADC tribunal as I hereby do. I aim not to fight the governments of the various SADC regions but my aim is to highlight the need for the Tribunal not just for individuals but for States as well. The right to have access to justice forms part of our human dignity and our heritage as reasonable persons who have regard for human rights, the rule of law, the protection of democracy and of good governance.

I specifically urge the leaders of the main opposition parties in Tanzania (The Chadema party, The Civic United Front (CUF), The NCCR-Mageuzi and the National League for Democracy(NLD) to unite and to help save the future of the SADC Tribunal. By becoming members of the treaty, the various SADC States took upon themselves a duty to protect their citizens and to respect the rule of law and democratic principles and this duty has a binding obligation which SADC citizens are awaiting tirelessly to be discharged.

This article was originally posted on the blog ‘SADC Tribunal – saying NO to the ratification of the new SADC Protocol’.

About the Author:
Gertrude Mafoa Quan is a Ghanaian by birth and a South African citizen. She holds a Bachelor of Arts in French and an LLB from Rhodes University. She is currently serving her articles at Meyer and Partners Attorneys (a firm of attorneys based in Centurion,) where she works as a candidate attorney. Gertrude is also studying for her master’s degree in Human Rights Law at the University of Pretoria. She is an aspiring human rights lawyer.