SADC Adopts the Rule of Lawlessness

Article excerpt

LOCAL elections last month were a success for our democracy but they had an unforeseen spin-off that could prove disastrous for the rule of law in the southern African region.

President Jacob Zuma and Minister of Justice Jeff Radebe, involved in election work at home, were unable to attend several SADC meetings during this time. In their absence, SADC made unprecedented decisions about the future of the judicial body set up to deal with regional litigation on human rights and other issues: SADC leaders effectively dismantled this court and sacked the judges who had served on it.

This court, the SADC Tribunal, led by Ariranga Pillay, a former chief justice of Mauritius, with three other judges seconded from their normal duties in Angola, Botswana and Zambia, had delivered 16 reported decisions by the time it was dumped last month.

Their mandate was to consider cases involving disputes between individuals, legal entities and states on the one hand and SADC states on the other, including labour disputes brought by SADC employees.

It had to apply international law principles and observe all the usual restrictions applicable to regional courts world-wide - for example, litigants were first obliged to exhaust internal legal remedies before asking the tribunal for help. Its 16 judgments fall into three categories. One was a miscellaneous group of three cases involving disputes between aggrieved individuals or companies and particular SADC states.

Another group concerned disputes between SADC staff and SADC itself. These five cases dealt with employment-related litigation, and from the decisions I'd say that SADC would not win any awards as an employer body. The records are full of references to internal SADC sections undergoing major reshuffles and changes in structure with serious consequences for staff; worse, they show that in the cases before the tribunal, SADC did not observe the most fundamental employment principles.

The largest group of cases, eight in all, concerned various forms of human rights abuse experienced by Zimbabwe litigants at the hands of Robert Mugabe's government. Indeed, the court's first case, the one which probably led to the scrapping of the tribunal at the insistence of Zimbabwe last month, was brought by members of a family who asked the court to consider their treatment resulting from the policy of seizing farms and distributing them among Zanu-PF members. …