In an unprecedented move, the Southern African Development Community has scrapped its showcase regional court, set up to deal with regional litigation on human rights and other issues.
The decision has prompted outrage about SADC’s commitment to the rule of law and judicial independence.
In addition, the court’s four judges, removed without notice, have denounced their treatment and have demanded compensation from SADC for the loss of their jobs.
The decision to do away with the court, officially named the SADC Tribunal, was made in a series of meetings last month between senior ministers of countries in the region and between regional heads of state. It followed Zimbabwe’s growing anger about the court’s rulings against it on the grounds of its land policy and human rights abuses.
According to Lloyd Kuveya, programme manager for the regional advocacy project of the Southern African Litigation Centre, who closely monitors legal developments in SADC, Zimbabwe’s representatives initially challenged the tribunal’s legitimacy.
This issue was referred to an international panel of experts, who found the tribunal operated under a valid mandate and was entitled to hear human rights abuse complaints from individual litigants against SADC states.
Zimbabwe then raised other complaints, according to Kuveya. “They said individuals should not have the right to go to the tribunal, otherwise there could be all kinds of problems – even gay rights cases might come to the court.”
In the absence of South Africa’s representatives, these concerns won support at meetings in mid-May, and the SADC leadership decided to close the tribunal, mandating an investigation into a possible replacement, with final reports on a replacement due in August 2012.
After this decision, an angry letter was sent to SADC from the court’s four judges – its president and a former chief justice of Mauritius, Ariranga Pillay, along with Rigoberto Kambovo, Onkernetse Tshosa and Frederick Chomba from Angola, Botswana and Zambia respectively.
The judges speak of “illegal and arbitrary decisions” taken “in bad faith” by SADC. They say they were “shabbily treated and sent packing overnight, without any reason being given and without a hearing, like an employee who had been caught red-handed while committing a gross misconduct”. They are claiming compensation “both material and moral” for being “unlawfully and arbitrarily denied reappointment”.
Like Kuveya, the judges believe SADC’s decision to close the court follows Zimbabwe’s anger over the tribunal’s decisions on that country’s human rights infringements. They warn the move would “send the worst possible signal… to potential investors, donors and the international community” that the highest authorities of SADC at best “only pay lip service to the principles of human rights, democracy and the rule of law”.
Justice Pillay has agreed to come to South Africa to address the issue at a public meeting. He is due to speak on Monday July 11 at 6pm at Werksmans Attorneys in 5th Street, Sandton.