Without the SADC tribunal, “legitimacy of SADC community in jeopardy” – Tanzanian high court

Tanzania’s high court has come out strongly on the human rights implications of suspending the Southern African Development Community Tribunal, the regional court originally set up to consider disputes between states as well as between individuals and states. In a landmark decision the court said that without the tribunal, “the rule of law in the internal management of SADC and its institutions would be nothing but a pipe dream.” The new decision by the Tanzanian court follows a judgment by South Africa’s highest court finding Pretoria had unlawfully backed the demise of the Tribunal. The SADC Lawyers Association, that has been helping coordinate regional challenges to the suspension of the tribunal, has welcomed the new Tanzanian judgment and says that because the Presidents who supported the suspension are no longer in power, the time has come to consider re-establishing the Tribunal with its original mandate.

Read the judgment here

Three judges of Tanzania’s high court have found serious legal problems with that country’s involvement in effectively killing off a key regional human rights tribunal.

It is not yet clear whether the authorities will appeal the decision, but as matters now stand Tanzania becomes the second country in the SADC region, after South Africa, whose courts have castigated their respective government’s involvement in the demise of the Tribunal.

The SADC Tribunal, based in Windhoek, was established as a regional court to could hear disputes between members states as well as between individuals and states.

However, after the Tribunal delivered several judgments finding against Zimbabwe, the then-President, Robert Mugabe, persuaded a number of SADC member states to back his plan to “suspend” the Tribunal. The current position is that it is to be replaced by a body, not yet constituted, mandated to hear disputes between states only, and not individuals.

In its conclusions, the Tanzanian high court, sitting in Dar Es Salaam, found the suspension of the Tribunal, and the failure to appoint Tribunal judges, ran contrary to the clear provisions of the SADC Treaty. It was also “inimical to the Rule of Law as a foundational principle inherent to the legitimacy of the (SADC) community, and as expressly entrenched in the Treaty.”

Since there was now no functional Tribunal, “the legitimacy of SADC as a community and international personality is in jeopardy”. The court therefore urged that government should be advised to consider reviewing its position.

The Tanzanian challenge was brought by the Tanganyika Law Society, and followed a decision by the SADC Lawyers’ Association that its member Bars across the region should challenge the legitimacy of their respective government’s assent to the disbanding of the Tribunal.

Reacting to the Tanzanian court decision, the president of SADC-LA, Max Boqwana, said that since the courts in two SADC countries had now spoken so clearly to “denounce the mutilation of the SADC Tribunal”, there should be no need to spend more resources on further regional litigation. The “position was clear for all to see, agree and work out a way forward”. This was the only way to end a situation that in the view of the high court challenged the legitimacy of SADC as an economic community. SADC otherwise risked decline in comparison to other regional economic communities “whose apex regional human rights tribunals carry a more universal mandate”.

The high court judges made a number of key findings, among them that the SADC Tribunal “as established under the Treaty” still subsists as an international court. The judges also found it was a basic principle of international law that if a party treats a treaty as valid it is precluded from later denying its effect. They agreed with the South African courts that once the Tribunal had delivered its judgments, “Zimbabwe was duty-bound to assist in the execution of that judgment and so is South Africa.” According to the Tanzanian court, all SADC member states were “bound to implement the Treaty in good faith”.

State parties including Tanzania were obliged to give effect to the Tribunal, “without which the existence of the Community itself remains doubtful … (and) peaceful settlement of any dispute is rendered impracticable.” The court said the SADC Treaty could be seen as a “progressive expansion of access to justice and furtherance of protection of fundamental human rights”.

In a key summary of the court’s view, the judges said that once established, the SADC Tribunal “was rendered secure from any control or influence of any State parties, and could not, as an independent tribunal be held hostage to unilateral withdrawal of confidence expressed in a motion challenging its legality by one of the State parties”.

“The resolution to suspend operations of the Tribunal, based on a challenge (to) its legality … eroded existing rights of parties (who had been assured) of the existence of an independent juridical body to which they could turn in case of dispute.”

“In our considered view …, the suspension of operations of the SADC Tribunal would border on an outright abrogation of the people’s rights”.

And in a particularly telling reference, the judges added, “In the absence of a functional Tribunal, the rule of law in the internal management of SADC and its institutions would be nothing but a pipe dream.”

Failure or refusal to appoint new judges contravened the duty to constitute the Tribunal. “Undermining the operational capacity of the Tribunal is inimical to the rule of law as a foundational principle for the protection of human rights, democracy and good governance underpinning the community.”

The court also said that the Tanzanian government could review its position as it had not been obliged to agree to suspending the Tribunal. Any review should be aimed at “conforming to its constitutional obligations”.

“Under the Treaty, the legitimate body with mandate to advise the community is the Tribunal. Consequently, failure to ‘constitute’ - appointing judges and facilitating the Tribunal - undermines the legitimacy of all acts by the community” and exposed state parties to individual liability for all acts of SADC in the domestic courts.

In its comment on the way forward, SADC-LA said that none of the SADC Presidents who had signed the protocol was still in power. For these and other reasons – including the views of the courts that had so far engaged on the question – it seemed there was now an opportunity to reconsider matters. The organization has long urged a return to the Tribunal’s original mandate but now proposed the development of a “fully constituted separation of powers agenda – the SADC Summit, a functioning regional apex court with full jurisdiction and a parliament linked to the inter-African and international human rights systems.”