Academic journal article Strategic Review for Southern Africa

The Suspension of the SADC Tribunal

Academic journal article Strategic Review for Southern Africa

The Suspension of the SADC Tribunal

Article excerpt

1. Introduction

In August 2012 the Summit of the Heads of State and Government of the Southern African Development Community (SADC) held in Maputo, Mozambique, decided to suspend from operation one of its key institutions the SADC Tribunal. As the resolution stated:

   24. Summit considered the Report of the Committee of Ministers of
   Justice/Attorneys General and the observations by the Council of
   Ministers and resolved that a new Protocol on the Tribunal should
   be negotiated and that its mandate should be confined to
   interpretation of the SADC Treaty and Protocols relating to
   disputes between Member States.

This unprecedented action followed several months of tit for tat particularly between the Tribunal and Zimbabwe mostly over white commercial farms' invasions by so-called war veterans.

The essence of this decision simply is to oust the jurisdiction of the Tribunal from entertaining alleged human rights violations at the instance of individual victims such as the white commercial farmers from Zimbabwe who besieged the Tribunal complaining about the Zimbabwe government's land grab policy. It made this quite clear with the injunction that "its mandate should be confined to interpretation of the SADC Treaty and protocols relating disputes between Member States". This is a cowardly response to the victory by Zimbabwe white farmers at the Tribunal based on a law the SADC Member States' themselves adopted apparently for the good of the region.

Civil society tried to fight this draconian decision with all means at their disposal but the Summit would hear none of it. Combining their efforts, the Southern African Litigation Centre, the SADC Lawyers Association as well as the International Commission of Jurists (ICJ) Africa Office, among others, held a series of meetings and workshops to express their displeasure and rejection of the Summit decision. When they were not heard, civil society decided to take the matter to the African Court on Human and Peoples' Rights for Advisory Opinion on the decision of the SADC Summit. The Opinion is still being awaited.

However, following this instruction, the SADC Secretariat convened a meeting of SADC Ministers of Justice Troika in late February 2013. A meeting of the Council of Ministers took place the following week. Surprisingly, the Ministers' meetings were very contentious. Debate was polarised. Their views on the Tribunal were divided. It was not easy for the ministers to reach consensus. Consequently, the Council of Ministers requested that a full meeting of Ministers of Justice meet to prepare the draft Terms of Reference (TORs) for their extended mandate on the review of the Protocol on the Tribunal. The Ministers of Justice are expected to meet some time in June 2013, prior to the next Summit. For now, as far as the Tribunal staff matters are concerned, it appears that the status quo will remain.

2. History

The SADC Tribunal is one of the youngest regional courts. But it was an innovation for SADC leaders to agree not only to commit themselves to regional integration but towards respect for the human rights of their citizens. The SADC Treaty explicitly commits SADC Member States to respect human rights, rule of law and good governance which is a first natural priority in most countries. Consequently, the Treaty establishes the SADC Tribunal among its organs with the objective to enforce the treaty obligations among member States.

Article 9 (g) of the SADC Treaty as read with Article 16 of the Treaty establishes the SADC Tribunal. Pursuant to Article 16 of the Treaty, the mandate of the Tribunal is to ensure adherence to the proper interpretation of the provisions of the Treaty and subsidiary instruments, and to adjudicate upon such disputes as may be referred to the Tribunal. The Tribunal may also tender advisory opinions upon request by Summit or Council of Ministers. Its decisions are final and binding. …

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