Bring back the SADC Tribunal, says judge

20 September 2018 · Carmel Rickard

ONE of the strong calls to emerge from this year’s SADC-Lawyers Association conference in Maputo, Mozambique, was for the “old” SADC Tribunal to be reinstated. The tribunal was scrapped at the instigation of Zimbabwe’s former president, Robert Mugabe, and SADC leaders then negotiated another tribunal that would deal only with disputes between member states, and not between individuals and states as in the past. Among those who expressed support for the “old” tribunal to return was SA judge, Thoba Poyo Dlwati, a former president of SADC-LA, who spoke about the human rights infrastructure of the region.

THROUGHOUT the SADC-Lawyers Association conference, any discussion of human rights and the rule of law in the region always came back to a call for the restoration of the SADC Tribunal with all its original powers.

One speaker who spoke strongly on the subject was SA judge, Thoba Poyo Dlwati, a former president of SADC-LA. She referred to the leaders who supported the move by Zimbabwe’s then president, Robert Mugabe, to suspend the tribunal, and described the effect of their actions like this: “Solidarity triumphed over the rule of law”.

Here are some highlights of her address:

My task is to scan the human rights infrastructure of the SADC region and I will do this by considering the state of the SADC Tribunal and the African Court on Human and People’s Rights.

The SADC Tribunal was established in 1992 and it became operational in 2005. It was one of the key institutions created by SADC. The Tribunal was to ensure the adherence to and proper interpretation of the provisions of the SADC treaty and subsidiary instruments and adjudicate upon disputes referred to it. After several judgments, mostly ruling against the Zimbabwe government, the Tribunal was de facto suspended at the 2010 SADC Summit. On 17 August 2012, here in Maputo, Mozambique, the SADC Summit resolved that a new 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.

Some of the cases dealt with by the Tribunal included the famous or infamous (case of) Mike Campbell (Pvt) Ltd and Others vs Republic of Zimbabwe which (dealt) with the acquisition of a farm called Mount Carmel during 2007. I mention this case because some are of the view that it was the finding by the Tribunal in this case on land reform that led to its demise. The view is that perhaps countries like South Africa, Namibia and Tanzania might find themselves in a similar situation as the question of land reform then was at the top of the political agenda, hence they supported the decision (to “suspend” the Tribunal). The support by other member states might have been because of their (own) perceived poor human rights record. So, solidarity triumphed over the rule of law.

The main bone of contention that is believed to have led to the suspension of the Tribunal was Article 15 which states that the Tribunal shall have jurisdiction over disputes between states, and between natural or legal persons and states. Whilst the Tribunal dealt with matters between States, these were very few, and the majority were those between individuals and members states. With respect to local remedies, the Tribunal exempted parties from proving that they had exhausted local remedies if they showed that they were unable to proceed under domestic jurisdiction. (I suppose that this would be at the discretion of the bench to prove the meaning of “unable to proceed”.)

The decisions of the Tribunal were final and binding and (it was) thus a final arbiter in disputes within its jurisdiction. The Tribunal, however, did not have power to compel its members states to comply with its decisions and where there was non-compliance, it had to refer that to Summit for it to take action. In my view, this was one of its major downfalls.

Pursuant to the Maputo Summit decision on a new Tribunal, independent consultants were employed to do the review and they recommended that the Tribunal be allowed to (continue to) function. However, these recommendations were ignored and instead the Summit mandated the Council of Ministers to review the role and responsibilities of the suspended SADC Tribunal and its jurisdiction. The Ministers consulted extensively and I think SADC-LA made representations. They received the recommendations of the various lobby groups well. However, at the end of it all, it was accepted that the decision was no longer a legal one but a political issue. At some point during these lobby meetings, which I was part of at the time, the question that was often asked in various countries was whether the Tribunal would affect the sovereignty of the various members states and whether the Tribunal could act as an appeal court in certain instances.

A revised protocol on the Tribunal (2014), dealing only with disputes between members states, was signed by nine state and for it to come into effect it must be signed by at least 10 states.

Whether there still exists a need to revive the SADC Tribunal is a question to be answered by this forum. I would imagine that there is a need to revive it … because in my view it was one of the crucial institutions for the effectiveness and to some extent (the) legitimacy (of the) SADC governments. In my view, SADC is not complete without it. It would serve so many issues especially the various issues that are emanating from the various countries of SADC. This will also be more so especially if one has regard to the African Union’s decision on the International Criminal Court.

We need these institutions and need to strengthen them so that they serve the people of this region. This is especially so because so much is being done on the integration and cross-border practices. The Treaty, article 4 (c) enshrined the principles of human rights, democracy and the rule of law and the Tribunal could give effect to these principles. Perhaps because of the recent developments in Zimbabwe and other member states that will be holding elections soon, it might be prudent to revive the lobbying for the resuscitation of the Tribunal or even follow-up litigation like the (litigation) by the Law Society of SA. The demise of the Tribunal was a major blow to the region as the Tribunal was the only court at a sub-regional level to deal with human rights cases.

Whether it would work and be effective without powers to enforce its order will have to be seen because there is a belief that member states are always reluctant to call each other to order.

The other option of course is the African Court on People’s and Human Rights with its headquarters in Arusha, Tanzania. It is a judicial organ mandated to protect human rights on the continent by the African Union. The judgments of the court are final but the court can review its judgments. The court can issue orders to remedy a violation, including payment of fair compensation, including the payment of fair compensation or reparation.

Unfortunately, the majority of cases received by the court involved States that have not deposited the declaration required by Article 34 (6) of the Protocol which recognizes the competence of the court to receive cases from individuals and NGO’s in those states. This is one of the challenges that curtails the maximum operation and effectiveness of the court. As at April 2018 only eight out of 30 states have made the declaration with only Malawi and Tanzania in the SADC region. There is also a lack of awareness about the existence of the court.

The AU in 2017 called on the African states to leave the ICC. It has been suggested that there are alternatives if Africa would withdraw from the ICC. This being a merger of the African Court of Justice and the African Court on Human and People’s Rights, to be called the African Court of Justice and Human Rights. The question is firstly has a case been made for leaving the ICC and can we afford to leave it now? Do we currently have an alternative that will serve our people on these matters? If we are slow to make the declaration on the African Court on Human and People’s Rights will be ever ratify the one on the African Court of Justice and Human Rights? Why have the states not made the declaration? Will the SADC-LA members ask their governments? Will the fears raised about the SADC Tribunal not arise on the Africa Court.

Carmel Rickard

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