The Namibian (Windhoek)

14 August 2012

Southern Africa: Region Clamours to Save SADC Tribunal

Photo: Buanews
The SADC Summit Heads of State and Government in Namibia, 2010.

THERE is a frantic last-ditch attempt by regional activists to save the integrity and independence of the Southern African Development Community (SADC) Tribunal as heads of state and government meet this week in Maputo, Mozambique, where a final decision is expected on the regional court.

"The future of the SADC Tribunal hangs in the balance. Without it, the region will lose a vital ally of its citizens, its investments, and its future," Nobel laureate Desmond Tutu warned in a short film which attempts to rally SADC citizens to advocate with regional leaders to keep the Tribunal intact.

The Tribunal was suspended - in some views, rendered entirely defunct - by a SADC summit in 2011 after the Zimbabwean government extensively lobbied SADC heads of state.

The majority of cases heard before the Tribunal involved human rights violations in Zimbabwe.

The former president of the Tribunal, Judge Ariranga Pillay from Mauritius, said 80 per cent of the applications before the court concerned violations of human rights, democracy and the rule of law.

Between 2007 and 2009, the court adjudicated about 20 cases.

The Zimbabwean state has lost every single case before the Tribunal, but has with impunity flouted the regional court's orders with no repercussions - either political or otherwise - and has since challenged the Tribunal's jurisdiction over its domestic laws.

Failure to comply with the court's orders could mean that a state has to pay compensation or be interdicted from carrying out activities that were violative of its obligations, said the executive director of the Southern Africa Litigation Centre (SALC), Nicole Fritz.

Pillay said Zimbabwe has purposely refused to comply with the Tribunal's judgements and the SADC summit heads of state last year purposely refused to take action against Zimbabwe.

But the Tribunal was a creation of SADC governments when it was established and inaugurated in Windhoek in 2005.

It was empowered to adjudicate legal disputes between member states, between companies and governments, and individuals who have failed to find sufficient legal recourse in domestic courts.

Alice Mogwe, speaking on behalf of the 'Save the SADC Tribunal' regional campaign, said the court was meant to be totally independent from national interests that could vigorously defend the principles and goals underpinning the SADC Treaty. More importantly, she said, its role was predicted to create democracies and rules-based societies where a better life for all becomes a reality.

Instead, regional leaders have decided to review the role, responsibilities and terms of the Tribunal after Zimbabwe's challenge, which lawyers in the region fear might water down the court's mandate to serve the interests of individual oppressive states that refuse to be subjected to the rule of law.

"A review process in itself is not problematic. We see international institutions doing it all the time. But this review is coupled with an effective suspension," said Fritz.

In July last year at a meeting of Ministers of Justice and Attorneys General in Namibia, Justice Minister Pendukeni Iivula-Ithana said the intention was not to do away with the Tribunal, but to make adjustments to it from time to time to "fit our interests".

Ministers of justice in Maputo this week are reported to have all agreed that the Tribunal be revived, and proposed that the heads of state approve a new protocol on the court, but that pending cases at the time of the suspension of the court be heard under the old protocol.

Of grave concern to lawyers and activists across the region is that SADC leaders might remove the court's human rights mandate, and take away individuals' access to the court.

Tutu said individuals' access to the court constitutes a key legal instrument that has brought hope to victims of abuse of power in the region.

"We need the support of SADC citizens, civil society and the wider community to save the SADC Tribunal so that the rule of law, development, and human rights are protected throughout the region," said Tutu.

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