Lawyers from the Southern African region have approached the African Court on Human and People's Rights in Tanzania, to determine whether the 2010 decision by regional leaders to suspend the Southern African Development Community (SADC) Tribunal, was legal or not.
This landmark legal request was lodged last Friday by the Pan African Lawyers Union (PALU) and the Southern Africa Litigation Centre (SALC), as part of their ongoing campaign to revive the SADC Tribunal.
The SADC Tribunal was suspended by regional leaders two years ago after its judges ruled that the Mugabe regime's land grab programme was unconstitutional and racist. The court later found the regime to be in contempt of court because it ignored its ruling. But instead of dealing with Mugabe, regional leaders decided to suspend the Tribunal instead.
At their summit in August 2012, SADC leaders decided not to revive the original Tribunal. Instead, they resolved to negotiate a protocol for a new Tribunal, whose mandate would be limited only to dealing with disputes between member states.
Arnold Tsunga, Executive Director of the International Commission of Jurists (ICJ) in South Africa, told SW Radio Africa that the Tribunal is the only judicial institution in the region that can resolve disputes in situations where there are no effective domestic remedies for people.
"When regional leaders decided to neutralise a judicial institution simply because of decisions it had made against Zimbabwe, this was not only highly political and irresponsible, but it was also illegal. The SADC Treaty requires all organs of SADC to comply with certain fundamental principles like the rule of law, separation of powers, checks and balances," Tsunga explained.
So far SADC leaders have ignored recommendations from regional lawyers' groups, SADC Ministers of Justice, Attorneys General and respected individuals like Archbishop Emeritus Desmond Tutu. The African Court was seen as the last legal option in this campaign to save the SADC Tribunal.
Tsunga said they are asking the African Court to make a special finding that would give the Tribunal the mandate to deal with any cases of violations that took place within the region. They also want the leaders to appoint judges so that cases pending at the Tribunal can be resolved.
At the centre of their argument is whether the decisions by the SADC leaders to suspend the Tribunal were consistent with the African Charter, the SADC Treaty, the SADC Tribunal's own Protocol and general principles of the rule of law.
Tsunga said: "What we have basically done is to get an advisory opinion of the African Court, as the highest judicial organ in Africa, to make a pronouncement that the SADC Heads of state acted outside their mandate in terms of the SADC Treaty".
The development comes just a week after another court, the African Commission on Human and People's Rights, agreed to hear a formal complaint against the SADC leaders over the closure of the Tribunal.
At the 52nd Ordinary Session in Cote d'Ivoire last Tuesday, the African Commission ruled that the complaint lodged on behalf of Zimbabwean farmers Luke Tembani and Ben Freeth was 'admissible'.
All 15 SADC leaders were named as respondents in the landmark case, which was originally made to the SADC Tribunal last year. It will be the first time in legal history that heads of state are cited by an individual as respondents in an application to an international body.