23 January 2013

Southern Africa: African Commission Asked to Advise On SADC Tribunal

AFTER failing to find regional justice because of the suspension of the Southern African Development Community (SADC) Tribunal, Zimbabwean commercial farmers Luke Tembani and Ben Freeth are now seeking legal recourse from the African Commission on Human Rights and People's Rights (ACHPR).

Respondents in the application before the ACHPR are all 14 SADC member states, including Namibia, which decided in August last year at the SADC Summit that the Tribunal be suspended while a new protocol on the Tribunal is negotiated and that its mandate be confined to interpretation of the SADC Treaty and Protocols related to disputes between member states.

The effect of this is that individual citizens of the region can no longer access the court as was the case before, and that the court henceforth will only deal with matters between SADC member states.

The farmers in their application to the ACHPR want the commission to consider the legality of the temporary suspension of the Tribunal, which they say was done unlawfully, and want the decision that individuals can no longer access the court revoked, arguing that it is contrary to the African Charter on Human and People's Rights.

Human rights activists and the regional legal fraternity viewed the suspension not only as unlawful but also as politically motivated by particularly the Zimbabwean government, which has disregarded two orders of the Tribunal in relation to the farmers challenging the expropriation of their farms.

The Pan-African Lawyers Union (Palu) and the Southern African Litigation Centre (Salc) also requested an opinion from ACHPR in November last year. The ACHPR, which is based in Banjul, Gambia, is considered as the primary human rights body on the African continent.

Tembani and Freeth said in their application that the suspension of the Tribunal was a direct violation of the rule of law because it precluded court supervision by the judicial arm of SADC over the executive, disallowed access to the court, and removed the remedy before an independent and impartial court. Furthermore, they said, it withholds legal protection of individuals against states.

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