Friday, 1 March, 2013
Pretoria, South Africa
Hosting organisation: 
University of Pretoria with SAFPI

The SADC Tribunal: removing the scales of justice, 1 March 2013, Pretoria

Conference summary

On Friday the 1st of March 2013, the Political Sciences Department of the University of Pretoria in partnership with the Open Society Foundation for South Africa and the South Africa Foreign Policy Initiative (SAFPI) hosted a public dialogue on the Southern Africa Development Community (SADC) Tribunal (the Tribunal). The keynote speaker, Judge Ariranga Pillay; the former Judge President of the SADC Tribunal; presented an overview of the Tribunal, and its mandate. He presented his thoughts and conclusions in regards to the disbandment of the Tribunal. Two other discussants: Ms Nicole Fritz, the Executive Director of the Southern Africa Litigation Centre; and Professor Laurie Nathan, from the Centre of Mediation in Africa, University of Pretoria; provided commentaries on the dialogue.

The welcoming remarks were presented by Ms Sandusha Naidu from (Open Society Foundation for South Africa). She expressed her pleasure at the timing of the dialogue, which coincided with recent developments within the regional arena. She made reference to the Concourt hearing of the South African Constitutional Court on the dispossessed farmers from Zimbabwe. She also mentioned the Commission on Human Rights, which produced an African report on the right to information. She placed special emphasis on the importance of organizations in being active in the promotion of the access to social justice for all citizens.

Judge Pillay presented two qualifications in regards to the Tribunal. First, he expressed regret over the fact that South Africa had not yet ratified the Southern Africa Development Community Treaty (SADC Treaty). He was however pleased to announce the date of commencement of the SADC Treaty: 5th of May 2013. He then expressed lament over the premature cancellation of his three year tenure as Judge President of the Tribunal, because of its suspension by the SADC Council in August 2012.

The brief for Judge Pillay’s presentation was based on three salient features. He stated that he would draw on cases from his vast experience, which would support his assessment of the Tribunal as well as present his conclusions on the Tribunal’s achievements and failings.

Judge Pillay provided a general overview of the emergence of the Tribunal, its jurisdiction and mandate. It was established within the framework outlined in the SADC Treaty. The Tribunal was enforced by all SADC member states and was subsequently incorporated into the SADC Treaty on the 14th of August 2001, and was regarded as SADC’s judicial arm. It was inaugurated on the 5th of November 2005. Its creation presented an opportunity for member states to exercise their sovereignty. It allowed the Tribunal to make binding decisions (Article 16.5 of the SADC Treaty) on behalf of member states. 

The Tribunal’s objective was to adjudicate disputes that may arise between member states as well as citizens of the SADC region. It was created in accordance to sources of law such as the general norms and principles of public International Law and member states. It thus created a platform for the development of SADC jurisprudence. The SADC Treaty (Article 21) provided an important framework for the process of regional integration; built out of a desire for supranatural law applicable to all member states. 

Judge Pillay cited cases in which member states, notably Zimbabwe, were in contravention of the SADC Treaty (Article 4C and 6.1). These Articles were regarded as enforceable principles and not just normative aspirations. The cases show how the claimants were denied access to the domestic courts and to a fair hearing – tenets essential to the rule of law. These rulings highlight the unlawful and illegitimate verdicts passed on the grounds of being racial discrimination. Even though Judge Pillay agreed with the moral obligations of the Land Reform Programme, he cited evidence which showed that those in positions of power gain the benefits of the system. 

Judge Pillay mentioned several cases where the Tribunal pressed for the SADC Council and SADC Summit to adopt appropriate measures to counter the acts non-compliance by the Zimbabwe government. In 2008, Case 5 (Gondo and Others), it was accused of failing to comply with the orders of the high court and was therefore in breach of the SADC Treaty. In June 2009, the Tribunal lodged another case of non-compliance before the SADC Summit, in regards to ruling of the Mike Campbell case (November 2007). It made the same request in July 2010 on the backdrop for further acts of non-compliance. Judge Pillay insisted on the need for all member states to conform to the strict compliance of court orders, in order to safeguard the rule of law.

Judge Pillay made reference to three cases which highlight the fundamental importance of judicial review mechanisms within the SADC structures especially in regards to the conditions of service of its staff. He stated that officials in these institutions frequently acted arbitrarily and with impunity. These officials were obligated to act in a fair and just manner. Judge Pillay commented on the irony that not every case can be treated in the same manner. He made a comparison of the case of SADC Secretariat staff members Mr. Kanyame and Mr. Mondlame to the demise of the Tribunal and the dismissal of its judges.

The second feature described the importance of the Tribunal, in respect to the Human Rights mandate. It provided an analysis of the impact of the decisions made by the Tribunal in regards to continental justice. The mandate of the Tribunal was the promotion and advancement of human rights in the SADC region, where domestic courts fail to do so. Its judicial review powers provide solutions to remedy the illegal acts of governments. Judge Pillay stressed that citizens are at the centre of human rights and he pointed to the fact that this will have economic and developmental implications to the policies of member states. The Judge commented on the irony of the demise of the Tribunal, as SADC remains an underdeveloped block as compared to other blocks. 

The last feature expressed a criticism to the South African role in the demise of the Tribunal. He remarked on South African selfishness in not exercising its power to prevent the Tribunal’s demise. Despite being the Tribunal’s biggest contributor, the Tribunal was left to be disbanded without any opposition to the decision. He declared that there would be no positive prospects for a new Tribunal with limited jurisdiction. As of August 2012, the new Tribunal would up subject to review. However, Judge Pillay did not believe that this would be a viable option. He raised four 4 concerns over the creation of a new Tribunal: the policing and regulation SADC states or organs; the set-up common standards to regulate the new Tribunal; the enforcement of regional integration; and adherence to the rule of law and common procedures by SADC member states.

In conclusion Judge Pillay cited that the demise of the Tribunal may have been planned as early as 2010 given the controversial nature of cases as well as the lack of enforcement brought before it. He added its demise was predictable and inevitable. He lamented over the wastage of time, energy and resources spent from its inauguration on 5 November 2005 to its demise in August 2012. Despite these failings, the Tribunal recorded some successes like a body of SADC jurisprudence, a Memorandum of Understanding in the Eastern Africa Court of Justice, skills training for the administrative staff and an establishment of the SADC Law Journal. 

In her discussion on the Tribunal, Nicole Fritz cited that there were attempts to save the structure yet these were completely disregarded. The legitimacy of the Tribunal was contracted out to the World Trade Institute where its authority was upheld. However this review was completely ignored by the SADC Summit. Ministers of Justice and Attorney-Generals even went as far as to propose amendments to the Tribunal’s protocol which would allow independent states the ability to decide whether people can in fact approach the tribunal, however these ideas were also not entertained.

Fritz argued that the demise of the Tribunal was linked to the impact of the cases it took on. The fact that soon after its formation the Tribunal had cases regarding land reform in Zimbabwe come before it created a very difficult situation. In these cases the Tribunal ruled in favour of the individuals and against the Zimbabwean government and this is what initiated the course to its demise. Fritz believes that the Tribunal shouldn’t have handled such high impact and controversial cases from its inception but should rather have focused on building legitimacy in its rulings over matters which weren’t as controversial. In this way states would learn to accept its authority.

In choosing to disband the Tribunal SADC has become an outlier in the world community. The region now cannot begin to assume that it will have any credibility in saying it stands for international human rights if he can’t even acknowledge these same rights in its own territory.

In contrast to this Professor Laurie Nathan takes a different point of departure in his discussion. He believes the best way to understand the disbandment of the Tribunal links to three questions. Why did SADC set it up, why did they disband it and what does this action indicate about the character of the SADC countries?

Nathan believes that the establishment of the Tribunal wasn’t done out of a belief in international law but rather as a way to strengthen ties with donors. In 2011 72% of the SADC budget came from foreign donors, hence the creation of the Tribunal was done such that these donors wouldn’t lose hope in the region. Hence in attempting to keep up appearances with the West and ensure that money kept coming in the Tribunal was created, it was also easy to do because there was also no penalty for not having it in place. Nathan also goes onto suggest that heads of state also most likely never realised the full implications of the powers the Tribunal has when they created it, they just signed away.

Then in choosing to disband the Tribunal Nathan believes that the countries of SADC gave an indication as to their true nature. He believes that within SADC there is a hierarchy of values of which the most important are sovereignty and unity. Many of the countries in SADC only have a weak grip on sovereignty or are still used to being in control of their own affairs. Hence they have no desire to have it eroded by a court. Also the fact that sovereignty has been so diluted in the 21st century with the migration of peoples etc, it makes it hard to governments to give up the small amount that they have left. He also suggests that to accept that non-democratic states in the SADC region would happily take on democratic practices is ridiculous as these states don’t even have functioning institutional democracy. In the European Union it works because the countries share a common desire for integration and common law. In a country like Zimbabwe where they can’t respect domestic law why would they respect regional or common law.

Thus SADC countries had two possible choices to make when deciding the fate of the Tribunal, do they support countries which fought for independence and then helped in other revolutions, or do they vote to uphold a court. Anarchy as we know defines the international system and making sure your have states allied to you is important, thus voting against the Tribunal was the safest option here.

Keynote speaker: Judge Ariranga Pillay (former Judge President of the Tribunal): Reflecting on the SADC Tribunal.

Discussants: Ms Nicole Fritz (Executive Director: Southern African Litigation Centre) and Prof. Laurie Nathan (Centre for Mediation in Africa, University of Pretoria)

Chair: Prof. Michelo Hansungule (Centre for Human Rights, University of Pretoria)

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