Suzgo Lungu and Aquinaldo Mandlate
The Daily Maverick
SADC as a regional block is pushing the agenda of promoting investment in the region and this is threatened if the region cannot create laws that repose confidence on investors. The rule of law is of paramount importance if the region is to prosper. One way of doing so is to re-establish an independent and impartial tribunal. By SUZGO LUNGU and AQUINALDO MANDLATE.
The rule of law and access to justice face a worrying trend in Africa. These critical values are placed in danger by a political elite championing individual protectionist ideals in the name of nationalist interests limiting the right to access justice through regional courts.
With the exception of a few, heads of states and governments have, in many instances, been at the fore front of such negative approaches to limit access to justice at the level of international, regional and sub-regional institutions. In this regard, we are reminded of efforts by political leadership in the Southern Africa Development Community (SADC) calling their governments to weaken the jurisdiction of the SADC Tribunal. More recently, some SADC leaders expressed interest to weaken the acclaimed International Criminal Court (ICC). Sometimes one gets the impression that African leaders are pushing the agenda way too far without fully appreciating the implications of their decisions. The downside to this is that people’s fundamental rights are threatened as political action destroys institutions tasked with responsibility to hold States accountable. The history of the SADC Tribunal, the contours of its weakening and a legal suit associated with the decision that led to the weakening of the tribunal are discussed below.
The SADC Tribunal has a fractured history. It was established by a treaty, the protocol on the establishment of the SADC tribunal. When the protocol was adopted, it could not receive enough ratification in order for it to enter into force. To solve this problem, the SADC heads of state and government, acting pursuant to its powers as a policy-making body of the organisation, decided to integrate the tribunal into the SADC Treaty as one of its organs by amending the SADC Treaty. This was done at Blantyre, Malawi on 14 August 2001. This amendment removed all obstacles that were preventing the tribunal from operating. On 18 November 2005, the SADC Tribunal was formally inaugurated and it began to operate. Things were rosy until the tribunal delivered a judgment against the Government of Zimbabwe in the case of Mike Campbell (Pvt) Ltd and others v Republic of Zimbabwe. The Government of Zimbabwe openly defied and refused to comply with the decision. Instead it led a de-campaigning mission of the tribunal, lobbying its counterparts to act against the tribunal. The campaign against the tribunal gained momentum until the court was suspended in 2011.
Meanwhile, for many years, the SADC Tribunal was the only sub-regional court within the SADC region to hear cases filed by individuals, provided they had exhausted all local remedies. Looking at the cases that the tribunal presided over since its inauguration in 2005, the independence and impartiality of the Court was not in doubt. The boldness displayed by the Court, as demonstrated by its decisions, was admirable and gave hope to over 277 million people in the region. It is not surprising that the SADC leaders saw the institution as a threat to their self-serving interests and hence the said suspension.
The SADC Heads of State and Government (the Summit) suspended the operations of the tribunal in May 2011 at Victoria Falls, Zimbabwe. Later, in August, 2014 they adopted a new protocol for the tribunal. The new protocol changed the original jurisdiction of the tribunal by taking away its mandate to hear cases filed by individuals against States and only allowing it to hear cases brought by SADC member states against each other, also called inter-state disputes. The adoption of the new protocol, in effect, took away the possibility for individuals to approach the tribunal to vindicate their rights. It should be noted that prior to its suspension, the SADC tribunal adjudicated over and delivered several judgments against some SADC states and it granted remedies to their citizens. At the time of adopting the new protocol, most of the affected citizens had not been compensated. It is the above two executive decisions, namely, the suspension of the tribunal in 2011 and the adoption of the new protocol in 2014, that were subject of a legal suit before the High Court of Pretoria (North Gauteng Division), in South Africa on 5 February 2018.
A vast majority of the SADC member states, including South Africa, ratified other SADC protocols that still retain the SADC tribunal as a body responsible for dispute resolution. Many of these protocols also grants jurisdiction to the SADC tribunal to hear cases filed by individuals. For example, the following protocols retain the SADC Tribunal as the main dispute resolution body: the SADC protocol on Gender, the SADC protocol on Finance and the SADC protocol on Corruption and others. The foregoing protocols all have a force of law in the country. They were all ratified by South Africa before 2014, when the decisions to suspend the tribunal and adopt a new protocol on the tribunal, respectively, were taken. This means that the rights of South African citizens to access the tribunal were already vested. The same applies to citizens in other SADC countries which ratified the above SADC treaties before 2014.
When South Africa and other SADC countries ratified other SADC protocols, their citizens’ rights to access the SADC tribunal were vested. The vesting of the rights on citizens by means of ratification imply that Presidents in these countries would only divest people’s rights by consultations. While the same is said in relation to other countries this analysis focuses on South Africa where a challenge was brought against the President for his involvement in the weakening of the SADC Tribunal
The High Court heard arguments in a case brought by the Law Society of South Africa (LSSA) and others against the President of South Africa, among others. The Southern Africa Litigation Centre (SALC) and the Centre for Applied Studies (CAS) were admitted to join the case as amicus curiae. The applicants requested the Court to determine that the President of South Africa’s action in participating in the decision that led to the suspension of the SADC tribunal in 2011 is unconstitutional. The court was also invited to determine that the President acted unconstitutionally when he signed the 2014 protocol without the public. The 2014 protocol is yet to enter into force, however, both the suspension and signing of the new SADC tribunal protocol, not only has implications on people’s rights, but also completely changed the legal landscape in so far as the rights of individuals within the region to access the regional court is concerned. These factors are addressed with greater detail in the next section analysing the importance of the court proceedings in the SADC tribunal case.
For ordinary citizens in South Africa and elsewhere in SADC, the decision of the Pretoria Court will help shed light on the involvement of Presidents from other SADC countries, in the two decisions leading to the weakening of the tribunal. It will also shed light on how their decisions impact on the protection of their rights? Can they still approach the SADC Tribunal to claim their rights protected under the SADC protocols that still recognise the SADC tribunal as the dispute resolution body? The decision is also important to remind SADC heads of states and other leaders that the rule of law is of paramount importance and it should always prevail. In this regard, we submit that a balanced decision will draw a clear line pointing to the moment when the rule of law was eroded when the political elite weakened the SADC tribunal. Such decision will remind leaders not to change rules of the community to suit their interests, but to act proactively in the interest of the common good. Posterity demands that the SADC, as a sub-regional body, is governed by rules that are certain, predictable and withstand the test of time. Otherwise SADC shall be reduced to a sub-regional block that lives by the whims of the emotions of its leaders.
SADC as a regional block is pushing the agenda of promoting investment in the region and this is threatened if the region cannot create laws that repose confidence on investors. The rule of law is of paramount importance if the region is to prosper. One way of doing so is to re-establish an independent and impartial tribunal to which a citizen or investor could take her grievances to. In order for development and justice to flourish, we are in the hands of the Gauteng High Court to give us a ruling to clarify the legal position on South Africa’s international obligations and on its duties to its citizens. DM
Suzgo Lungu and Aquinaldo Mandlate are with the Southern Africa Litigation Centre