The idea of an African passport and the freedom of movement of persons in the continent: Only wishful thinking?Posted: 22 February, 2016
Author: Cristiano d’Orsi
Post-Doctoral Researcher and Lecturer, Centre for Human Rights, Faculty of Law, University of Pretoria (South Africa)
“Hail! United States of Africa-free!
Hail! Motherland most bright, divinely fair!
State in perfect sisterhood united,
Born of truth; mighty thou shalt ever be.”
This is the incipit of the poem Hail, United States of Africa, composed in 1924 by M.M. Garvey, a famous Pan-Africanist leader.
In 2002, at the launch of the African Union (AU), President T. Mbeki, its first chairman, proclaimed that: “By forming the Union, the peoples of our continent have made the unequivocal statement that Africa must unite! We as Africans have a common and a shared destiny!”
After that occasion, the concept of USAf has been highlighted in a more concrete way by other African leaders, such as A.O. Konaré in 2006, M. Gaddafi in 2009 –the first to mention the possibility to issue a unique passport for the entire continent- and, more recently, by R. Mugabe.
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.
‘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).
Section 1 of the Constitution sets out the founding values of the Republic of South Africa: dignity, equality, human rights, non-racialism, non-sexism, constitutional supremacy, rule of law, regular elections, accountability, responsiveness and openness.
The tragic shootings in Marikana, which took place on 16 August 2012, have led not only to much needed discussion on how equipped and prepared the police are to respond to violent protest, but also discussion about the underlying factors which led to these protests, and why they were so violent. Important questions must be asked about the shootings. Video footage of the incident suggests that it was not a clear cut case of self-defence. Accountability must prevail, both for workers responsible for violence and the police. Hopefully the Commission of Inquiry, established by President Jacob Zuma, will receive a broad mandate to investigate not only the shootings, but also a range of related issues related to what happened before and after.