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Not so much a surprise that the SADC tribunal was disbanded but that it was formed at all

By 11 March 2013July 27th, 2023International Justice, International Justice Resources4 min read

On Friday, 1 March, Judge Ariranga Pillay, former Judge President of the SADC Tribunal, Professor Laurie Nathan of the Centre for Mediation in Africa at the University of Pretoria and I participated in a discussion hosted by the University of Pretoria’s Department of Political Science and the South African Foreign Policy Initiative (SAFPI), titled: The SADC Tribunal: Removing the Scales of Justice.

It was a wide ranging discussion but I was most intrigued, and thought least susceptible to any ready answer, those sections of the discussion which set law firmly in opposition to political dynamics. Professor Nathan made the interesting observation that given the unsettled nature of sovereignty within the region, that it has so recently been won, that it is an as yet uncompleted project, that southern African states enjoyed de jure as opposed to de facto sovereignty, and that there were no common norms and standards as between them, the real surprise wasn’t so much that the SADC Tribunal was disbanded but that it had ever been established at all.

I speculated, I recognise a little moot and academic at this point, that had the Tribunal refused on some procedural basis — i.e. on standing or admissibility requirements — to hear the highly contentious issue of Zimbabwe’s land reform process as one of its very first cases, it might have lived to see another day. Had it had some relatively uncontentious cases under its belt — some prisoners’ rights, or fair trial rights judgements delivered — and had it managed to secure some state compliance with these rulings, before it tackled the land reform cases, it would have made it more difficult for the SADC Summit simply to dismantle the court.

I fear I may not necessarily be doing justice to Judge Pillay’s response, but my recollection of his response is that he believed that as a judge, his province is the law and he is not required nor indeed capacitated to look beyond that realm. I think that response would strike most jurists as an entirely appropriate, probably the only appropriate, response — that judges cannot and should not be required to calculate the political consequences of their rulings, that in any event in many cases these will be entirely unknowable.

Still, why I know the combination of savvy political strategist and wise jurist is probably hard to come by, indeed that combination may cancel itself out (and how exactly would you assess for such combination in any appointment process?), newly established, fragile regional and international courts especially, dependant on states’ voluntary support, require some combination of that skill-set. And not only of their judges. Think of how the ICC might have avoided some of the more debilitating fracas it has found itself engaged in had Prosecutor Moreno Ocampo made some smarter political choices.

Accommodation of political realities, however, forces some pretty hideous conclusions. I recognise the correctness of Professor Nathan’s observations regarding sovereignty in the region and the absence of shared norms and values, but as inhabitants of this region are we really to have to settle with the conclusion that supranational institutions offering protection of our human rights where domestic processes fail are not going to be available to us but may perhaps avail generations to come. . .

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