In a landmark legal request, the African Court on Human and People's Rights has been asked to use its advisory powers to determine whether the suspension of the Southern African Development Community (SADC) Tribunal by the region's leaders was legal or not.
The request for an advisory opinion was lodged by the Pan African Lawyers Union (PALU) and the Southern Africa Litigation Centre (SALC) at the Court in the Tanzanian city of Arusha on Friday, 23 November.
PALU and SALC maintain that the decisions taken by SADC Heads of State and Government to suspend the SADC Tribunal were unlawful since they violate judicial independence, access to justice, the right to effective remedies and the rule of law.
"A positive ruling from the African Court is one of the last remaining avenues to securing a revival of the SADC Tribunal and preserving the rule of law in southern Africa," said Nicole Fritz, Executive Director of SALC. "Without the Tribunal, most of the region's inhabitants - who cannot access credible domestic courts - have no real prospect of securing justice and redress."
If the Court rules that the suspension was illegal, it will be a definitive legal determination of the lawfulness of the SADC Summit's actions - a ruling that SADC will find difficult to ignore given that it is required to coordinate its policies and programmes with those of the African Union (AU).
"Our request for an advisory opinion is part of an initiative by African civil society to realise independent, empowered, effective and efficient REC Courts all over the continent," said Don Deya, Chief Executive Officer of PALU.
In their request for an advisory opinion, PALU and SALC have asked the African Court to determine whether:
The decision by the SADC Summit of Heads of State and Government to suspend the SADC Tribunal and not to reappoint or replace members of the Tribunal whose terms had expired is consistent with the African Charter, the SADC Treaty, the SADC Tribunal Protocol and general principles of the rule of law;
The decisions of the SADC Summits of August 2010 and May 2011 violate the institutional independence of the Tribunal and the personal independence of its judges as provided for in the African Charter and the UN Principles on the Independence of the Judiciary;
SADC's 18 August 2012 decision violates the right of access to justice and effective remedies as guaranteed in the African Charter on Human and Peoples, the SADC Tribunal Protocol and the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law; and,
The decision making processes undertaken in the review of the SADC Tribunal jurisdiction are in compliance with the SADC Treaty.
The request for an advisory opinion has been supported by a number of other prominent regional civil society organisations, including the International Commission of Jurists (ICJ) and the SADC Lawyers Association (SADC LA).
"Regional civil society has waged a tireless advocacy campaign to save the SADC Tribunal but despite our best efforts to engage with member states and highlight their legal obligations, SADC leaders persisted in dismantling the Tribunal," said Arnold Tsunga, Executive Director of the ICJ Africa Programme.
"The African Court provides another chance to convince them to change their policies and resurrect the Tribunal for the good of all southern Africans."
It is a view echoed by Kondwa Sakala Chibiya, President of the SADC LA. "Obviously we would have preferred SADC to have resolved this issue on its own and for us not to have been forced to approach the African Court," she said. "But after SADC ignored the recommendations of the legal advisors it had appointed and its own ministers of justice and attorneys general, there was no other option."
The SADC Tribunal has been defunct for more than two years after SADC leaders demanded a review of its powers and functions, following a series of cases in which it had ruled against the Zimbabwean government.
Despite a campaign spearheaded by legal bodies, civil society organisations and individuals such as Archbishop Emeritus Desmond Tutu, SADC's leaders decided not to the revive the original Tribunal at their Summit in August 2012.
Instead, they opted to destroy it, resolving that a protocol for a new Tribunal would be negotiated and that the new Tribunal's mandate would be limited only to adjudication of member states' disputes. The new Tribunal - shorn of a human rights mandate and with all access by individuals, companies or organisations denied - will be little more than a shell.