A host of legal organisations have started to ratchet up pressure on regional governments to restore the functioning of the Southern African Development Community (SADC) tribunal.
Its work was suspended over a fallout with Zimbabwe following two judgments on cases dealing with land disputes and human rights abuses.
For almost 18 months, the SADC legal regime, which includes the tribunal, has been left dangling . No new cases have been heard and the terms of the judges have not been renewed.
The tribunal, established by the 1992 SADC treaty as one of the institutions of the 15-member development community, hears cases between citizens and their governments and was also envisaged as the organ that would settle legal disputes between countries.
The decision to suspend the tribunal was reaffirmed at a meeting of SADC heads of state in Windhoek last May after leaders agreed to a review of its role, functions and terms of reference.
This was triggered by the refusal of the Zimbabwean government to abide by two landmark judgments. These were the Campbell case, which found the expropriation of farms without compensation was in violation of SADC protocols, and the Gondo case, which awarded damages of nearly US17m to nine Zimbabwean torture victims.
An independent review, completed last year, found the tribunal was correct in its findings, that SADC law should be supreme over domestic laws and that all decisions made by it should be binding and enforceable in all member states.
Now delay in restoring the tribunal’s work following the review is causing consternation.
“There is no likelihood that the functions of the tribunal will be restored in the early months of this year, but this could certainly happen at the meeting of heads of state in August,” says Nicole Fritz, executive director of the Southern Africa Litigation Centre.
“By suspending the tribunal, SADC leaders dealt a potentially fatal blow to the rule of law in the region and removed a fundamental institute for relief open to ordinary citizens,” says Fritz.
She says the tribunal is crucial to the SADC’s goal of being an economic bloc as well as a powerhouse of regional trade. Countries and businesses want to be assured that agreements will honoured and that there is a legally binding forum for disputes to be settled.
“We are hoping that it will be a revitalised tribunal, not one that has been watered down ,” says Fritz.
There is no question that Zimbabwe will continue to challenge the tribunal’s legality and will probably find support from countries such as Swaziland, Malawi and even Tanzania. These countries have also been guilty of legal failings, especially on human rights.
Other countries such as Botswana, which already have well-functioning and respected courts, are said to be concerned about the effect of tribunal rulings on their own sovereignty.
University of Stellenbosch law professor Gerhard Erasmus, who is also attached to the trade NGO and lobby group Tralac, says the tribunal was expected to begin focusing on trade issues before the suspension was imposed.
“This [the tribunal] is such an important regulating institution and yet so little is known about the work it does,” says Erasmus.
He says that in the 15 or so cases that the tribunal has heard, it was starting to develop a regional jurisprudence and though most cases were brought by individuals, hearings were also taking place between countries.
Discussion papers being circulated among member states indicate that some countries are trying to restore the tribunal to its original powers while others , such as SA, are open to the idea of elevating some powers to the tribunal over those in individual countries.
The discussions on the tribunal’s role are likely to take some time to complete and a compromise on its powers is likely.