6 February 2018

Southern Africa: Judges' Chance to Restore SADC Rule of Law

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The role played by President Jacob Zuma in removing crucial legal rights from millions of people living in SADC countries came under scrutiny in the Gauteng High Court (Pretoria) yesterday.

And a top SADC Lawyers’ Association official says the case, which was set down for three days but ended yesterday with judgment reserved, presents 'a unique opportunity' for SA judges to defend constitutionalism and the rule of law in the region.

Lawyers representing Zuma and his Ministers of Justice, and International Relations and Cooperation, argued that there was nothing wrong with his decision to support the 2010 suspension of the SADC tribunal.

The Law Society of SA (LSSA), however, says that in doing so, he joined other SADC heads of state in stripping the region’s people of the protection against government abuse of rights that was offered by the tribunal.

Six other applicants have joined the LSSA in bringing the case, all of them successful parties at the tribunal, deprived of the remedies ordered by its judges because of its suspension by Zuma and other SADC leaders.

The decision of the heads of state to suspend the Windhoek-based tribunal was made at the behest of Zimbabwe’s then-president, Robert Mugabe, angered by the findings of the tribunal judges critical of his government’s land policies and its curbs on the powers of Zimbabwe’s judges.

Again, at Mugabe’s urging, the tribunal is to be replaced by a body that will have no power to consider the cases of individuals against their governments but will be limited to disputes between countries.

Speaking ahead of the court hearing in Pretoria, the CEO of the SADC Lawyers’ Association, Stanley Nyamanhindi, said his association was leading a coalition 'for the restoration of an effective SADC tribunal'. Lawyers’ bodies in some countries of the region had already argued a similar case against the local head of state and the outcomes of these hearings were awaited. In other countries, local lawyers’ associations were involved in 'high-level advocacy', aimed at bringing the consequences of the suspension to the attention of their governments.

There had also been 'a strong shift in geopolitics' in the region since the tribunal’s suspension that warranted making a serious effort 'for the resuscitation of the tribunal in its original form'. Many of the heads of state who had originally been party to the tribunal’s 'abolition had now left the political stage, leaving the way open to reconsideration, and even to restoring the original body.

'With so many gone we should now engage the new ones,' Nyamanhindi said. Among these 'new ones', he mentioned Tanzania’s President, John Magufuli. Despite some recent setbacks, he projected himself as a leader who 'champions the democratic process'. He was a strong opponent of corruption and urged the courts to assert their independence, and to work tirelessly against corruption.

Namibia, which had hosted the tribunal, currently chaired the council of member states of the International Institute for Democracy and Electoral Assistance. The themes it had chosen for its term of leadership highlighted 'the development advantage SADC countries stand to gain by embracing accountability and democracy'.

'Tanzania and Namibia are two of SADC’s fastest-growing economies, and they could benefit further from the stability that an effective SADC tribunal would foster in the region.'

Another leader giving cause for hope was Mokgweetsi Masisi, Botswana’s President-in-waiting, due to take over from Ian Khama when the latter stands down at the end of April.

Nyamanhindi recalled that in August 2017 Masisi had opened the SADC-Law Association conference in Botswana making it clear in his speech that he could be counted on to help promote human rights and engage regional leaders on related issues. SA was also experiencing leadership change, and discussions with these and other heads of state over the reinstatement of the tribunal in its original terms could be useful, according to Nyamanhindi.

But in his view, the most 'exciting' new development was in Zimbabwe, where Mugabe had been replaced with Emmerson Mnangagwa. In the short time since he took over from Mugabe, the new leader has been reversing aspects of the country’s former policy on stripping farmers of their land without compensation – the very policy that had led to the tribunal’s orders against the Mugabe government. The Mnangagwa administration 'had made it clear that race and colour no longer played a part in the country’s land policy and that all farmers, white and black, were free to apply for land from government'.

'I am not sure that all the SADC leaders actually wanted to get rid of the tribunal in its original form. Clearly, Mugabe was the instigator: but the new head of state in Zimbabwe is doing just the opposite (of policies carried out by Mugabe). Once Mnangagwa formally acknowledges his commitment to the principles the tribunal was upholding at the time of its suspension, there is a chance for the tribunal’s future to be reconsidered'.

'There are moves to engage the current leadership of SADC to drop plans for the new-look SADC protocol (replacing the former tribunal), and though it is at a sensitive stage, we are hoping for the best.' Apart from these signs of a 'geopolitical shift' that could see heads of state reconsidering their Mugabe-led anti-tribunal actions, the case argued in Pretoria was also highly significant, he said.

One of the most crucial issues taken up by the tribunal’s judges had been 'Zimbabwe’s disregard of its own courts and the core tenets of constitutionalism'. Via ouster clauses the Mugabe government made it unlawful for that country’s judges to consider the legality of controversial land legislation. 'They (the tribunal members) were concerned about judicial jurisdiction being removed and how this made the Zimbabwe courts irrelevant.'

It was an attack on the rule of law and on the powers of the court. By signing the new protocol to replace the tribunal with a toothless body, leaders had effectively endorsed the decision of Zimbabwe’s previous government to take away the court’s powers.

However, yesterday's case challenging Zuma’s role in supporting the suspension of the tribunal and replacing it with an emasculated body, gave a 'unique opportunity for judges in SA to come to the aid of their judicial colleagues in Zimbabwe and thus help ensure restoration of the rule of law”.

He said he hoped the judges would use the case to make a statement that presidents of SADC countries should not act together to sponsor impunity,' as had been done when they agreed to suspend the tribunal.

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