THE Arusha-based 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 landmark legal 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 November 23.
According to Mr Donald Deya, the Executive of Pan-African Lawyer's Union, both 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 Mr Nicole Fritz, the 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).
"The Courts of the Regional Economic Communities (RECs), such as the SADC Tribunal, are crucial in guaranteeing cross-border and inter-regional business and trade investment, and just rule of law in which the rights of individuals, businesses, groups and Member States are equally protected," said Mr Don Deya, Chief Executive Officer of PALU.
"Our request for an advisory opinion is part of an initiative by African civil society to realize independent, empowered, effective and efficient REC Courts all over the continent."
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.
They are also to decide if 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.
Also to be determined is whether 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.