The SADC Tribunal: Concerted efforts for waves of change we want to see

Author: Patricia Mwanyisa
Human Rights, Justice and Rule of Law Programme Officer, Open Society Initiative for Southern Africa (OSISA)

Victoria Falls in Zimbabwe is known for its spectacular and majestic water falls. In August last year it was not just water that was falling at Victoria Falls but the SADC Tribunal as we know it fell spectacularly as leaders from the Southern African Development Community approved a new protocol to reconstitute the SADC Tribunal. The new tribunal has a limited mandate. By adopting a new protocol, the leaders effectively buried the SADC Tribunal which used to operate under the 2000 protocol. They decided to ignore recommendations from their own legal advisors and attorney generals and created a new Tribunal whose mandate is limited only to the adjudication of inter-state disputes. Simply put, under the 2014 Protocol, citizens are deprived of their right to refer a dispute between themselves and their government to the SADC Tribunal. Without a tribunal, justice and redress will remain elusive for people of the region.

It is important to remember that central to the demise of the tribunal is the case of Mike Campbell and Others v Zimbabwe (Campbell Case) in which the Tribunal found in favor of Zimbabwean white farmers whose land had been compulsorily acquired and without compensation by the Zimbabwean government. In retaliation Zimbabwe strategically attacked the jurisdiction and operation of the tribunal, mobilized support for its suspension and ultimately, its eventual disbandment. By succumbing to the demands of Zimbabwe, SADC Heads of state have ultimately eliminated the access of individuals and groups to the Tribunal at the behest of one State [Zimbabwe] and consequently depriving the entire region of the benefits of such an important institution. Discussions and decisions on the utility of the Tribunal should rather surpass the opinion of one State’s argument based on just one case and personal short term gains. Even so, Zimbabweans themselves and particularly politicians and elected MPs who represent the people of that country must objectively review the wisdom in taking such a stance – more so at a time when Zimbabwe chairs the SADC bloc. They must never forget that they too are ordinary individuals who also depend on fair, transparent and accessible judicial mechanisms which they may need at some point in their lives regardless of their political affiliations. That is, at any given time the tide turns, politicians whether in opposition or in power are susceptible to becoming victims of State sanctioned attacks on the dignity of individuals, including political violence.

Evidence of the swift reversal of tide in political life is best exemplified by the state of affairs in Zimbabwe the same State that with ZANU PF in power, brought the regional Tribunal to its current appalling state. The same politicians who advocated for the disbandment of the Tribunal at its prime are now out in the cold without resort. Ironically, at the time the Campbell Case was brought before the SADC Tribunal, Didymus Mutasa who at the time (January 2008) was Zimbabwe’s Land Reform Minister, defied the ruling of the Tribunal through the local courts – the Supreme Court of Zimbabwe [sitting as a Constitutional Court] but, has now found himself together with many of his comrades in arms and politics, out in the cold and expelled from ZANU PF for reasons he deems unfounded and unfair. In the event that Mutasa might feel aggrieved to the level of accusing the State’s hand in the recent debacle that has bedeviled ZANU PF -going by his recent and so far unsuccessful pursuit for a legal remedy in the Zimbabwean courts- it is safe to say that without the Tribunal, his options are very limited. This is an illustration of why politicians in the decisions they make must never be blinded by short term political gains and lose sight of what is in the best interest of those they represent. Regional integration tribunals have been shown to be cardinal institutions in accelerating regional integration, protection of human rights, promotion of rule of law, fostering regional trade and economic development. Thus it is imperative and can never be overemphasized that they must ensure the development of laws and policies that can withstand the test of time because of their robust people centred focus.

To fully appreciate the utility and significance of the SADC Tribunal, one needs to understand the value of African Regional Economic Communities (RECs), such as Common Market for Eastern and Southern Africa (COMESA) East African Community (EAC), the Economic Community of Central and African States (ECCAS), the Economic Community of West African States (ECOWAS), the Intergovernmental Authority on development (IGAD) and Southern Africa Development Community (SADC). These mechanisms are among the most notable achievements the African continent has to its credit in terms of progressing towards regional integration and development. The RECs are anchored in the African Economic Community (AEC) established by the Treaty Establishing the African Economic Community (1991) which entered into force in 1994. The AEC considers RECs as building blocks for ultimate African integration and economic development. The AEC was subsumed by the AU through its Constitutive Act. For the AU, respect for good governance, democracy and human rights is considered necessary for continental development.

Now, given the heterogeneity of countries in any given regional grouping, ensuring common action, identifying and agreeing on commonalities and the development of accompanying legal mechanisms and frameworks becomes imperative. These frameworks are fundamental to the implementation of human rights norms and standards. From a SADC perspective, the SADC Tribunal is one such mechanism that the Community has at its disposal – established as one of the SADC organs under the SADC Treaty of 1992. Given the Community’s determination to “ensure through common action, progress and wellbeing of the peoples in its community”, establishment of the SADC Tribunal aptly resonates with the Community’s principles as outlined in Article 4 of its Treaty. Member States obligated themselves to act in accordance with the principles of, among others, peaceful settlement of disputes, human rights, democracy and the rule of law. The SADC Tribunal had started establishing itself as a well respected international tribunal which was evolving human rights remedies and jurisprudence appropriate to the needs of SADC nationals. The Tribunal was accessible not just by member states but by both natural and legal persons, subject to the exhaustion of local remedies.

The SADC Tribunal has been disbanded at a time when it was beginning to play its role. This development typifies the proverbial greediness of slaughtering the goose that lays golden eggs. Limiting access by individuals to the tribunal effectively means it will just be a tribunal on paper as states are not in the habit of bringing actions against each other in international tribunals, especially with regards to human rights. SADC Tribunal records show that of the about 30 cases it handled in its life time, there was none which was initiated by a member state. The unequivocal limitation of the rights of SADC citizens is absolutely appalling and typifies the increasingly autocratic and obnoxious stance of the region’s Leadership and blatantly reneges the promise they made in the SADC Treaty – “[t]o be mindful of the need to involve the people of the region in the process of development and integration, particularly through the guarantee of democratic rights, observance of human rights and the rule of law.” In this regard we as SADC citizens ought to be particularly intrigued into reflection by the Law Society of South Africa’s (LSSA) insistence, upon the President of South Africa and the ministers of Justice and of International relations, to provide evidence of public participation prior to voting in favour of the new protocol. LSSA is challenging the establishment of the new SADC Tribunal through the South African Courts and this case follows in the footsteps of the Tanganyika Law Society which is taking similar steps in Tanzania. In principle all SADC Heads of States must provide such evidence. They must without doubt, demonstrate their commitment to ensuring progressive decisions that enhance regional integration, advance equality and promote equitable and inclusive development for each and every citizen of the region. A good start will be to completely abandon ratification of the new protocol in its current state and return to an accessible mechanism that stands to benefit all SADC citizens.

Forging ahead with the new protocol simply derails the objectives of the SADC Treaty. Instead we must emulate the examples of our African Regional counterparts. EAC for instance has a Court of Justice and it is refreshing to hear that ordinary citizens of Uganda recently challenged what they view as failure by the Ugandan State to increase the number of serving judges as per the resolution of the parliament of that country. The Ugandan Government’s inaction in this regard is alleged to be contributing to some cases not being handled due to the limited number of Judges – clearly a serious cause of concern in terms of efficient and effective administration of justice with obvious implications on associated access to justice rights. The West Africans through the ECOWAS Court also provide another excellent regional example. The Court has contributed to the realization of economic, social and cultural rights notably through a case against the Nigerian government brought before the court by a civil society organization. Without getting into detail of that case, it is worth noting that the Court found the right to education justiciable before the court as a right guaranteed by the African Charter. The point here is, given the questionable independence of the judiciary in many of SADC countries it is apparent that as SADC citizens we desperately need a supranational court that we can turn to in order to vindicate our rights and claim appropriate remedies. We must be given the opportunity to seek recourse, redress and to demand fulfilment of our rights when municipal institutions fail us.

As SADC citizens it is high time we revive the spirit that led to our self-determination and stand united on this issue. There is need to rekindle within our inner selves (individually and collectively) the same spirit that lived in those who fought and died for our true emancipation. Through a concerted and unequivocal voice we must demand from those we have entrusted to lead us, to hear and act on our demands. Building this voice however in my humble opinion also requires an honest reflection and urgent recalibration of strategies on the part of civil society from a general perspective and in this case more specifically on the issue of the SADC Tribunal. Doing so is pertinent to a formidable and vibrant movement that compliments the efforts of particularly the communities of lawyers groups that have been at the forefront of this fight. We must be encouraged by the fact that determined and resolute movements significantly impacted our history as Africans and the history of others abroad. Riding on that testimony, it is possible even now, through concerted efforts of all- the youth, men, women, persons with disability, journalists, students, elderly, human rights activists, political parties, and other notable communities to drive the waves of change we want to see. As Martin Luther King said at the height of his campaign to win the right to vote for African Americans, “[we must make a massive demonstration – that means protest, that means march, that means disturb the peace…” (non-violently of course).

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

About the Author:
Patricia Mwanyisa is a Human Rights, Justice and Rule of Law Programme Officer at OSISA. Her Programme houses OSISA’s general human rights, criminal justice, international justice, disability rights work as well as broader access to justice and rule of law work. Patricia has also worked as an Advisor for GIZ, Zambia. At GIZ she worked on the EU funded Access to Justice Programme, working extensively with Zambia’s key criminal justice institutions and also provided technical support and advisory to CSOs.
Follow Patricia Mwanyisa on twitter @TrishMwa