Neutering the SADC Tribunal affecting the whole region

THE decision by southern African leaders to neuter the SADC Tribunal has largely been viewed as a purely human rights issue. But it is also a commercial issue which hurts all citizens of the region.

That is because it is discouraging investment in the region, as more than 100 regional business leaders concluded last week. They were holding the first meeting of the Southern African Business Forum (SABF) in Gaborone on the margins of the SADC summit which started there today.

The SADC Tribunal was launched in 2005 as the supreme court of appeal in the region, empowered to adjudicate complaints, including human rights complaints, by individual citizens of SADC member states against their own governments, when those citizens felt they were not getting justice.

But then, in 2007 and 2008, it fatally ruled that the Zimbabwean government could not evict Mike Campbell and other white farmers from their land, as this amounted to discrimination against whites. Zimbabwe challenged the court’s legitimacy.

In 2010 the SADC leaders suspended the Tribunal and a year ago they divested it of its powers to adjudicate complaints by individuals and legal persons, and also its human rights mandate. It was reduced to adjudicating disputes between states.

Last week the Coalition for an Effective SADC Tribunal, which brings together 19 legal rights NGOs mainly from Southern Africa, called on the heads of state meeting this week “to uphold the rule of law and human rights in the region by reinstating the SADC Tribunal”.

Disempowering the Tribunal had been illegal, they said, because the heads had not consulted the community and specifically any persons or citizens affected by their decision, as required by the SADC Treaty.

Effectively disbanding the “affects every single citizen and person in the region”. It “effectively disregards the independence of the judiciary, separation of powers and the rule of law. It also impacts negatively on human rights and business confidence across the region”. The last point needs emphasis. In its Savuti Declaration the SABF said: “SADC has extensive plans for regional integration. The private sector calls for the focus to now shift to implementation. Investors require legal certainty and failure by SADC member states to implement their regional obligations have serious implications for business.

“The removal of access by private actors to the SADC Tribunal has reduced the legal remedies available to ensure legal compliance in SADC.”

It was revealing that the business leaders placed the disempowerment of the SADC Tribunal so high up on their list of priorities.

As the declaration indicated, SADC’s failure to implement most of its ambitious plans is its major drawback. “Regional integration” is the key objective of SADC.

Not content with embracing its own 15 members into a free trade area, SADC earlier this year launched negotiations to merge with the Community of Eastern and Southern African States and the East African Community into a much larger Tripartite Free Trade Area.

That sounds terrific on paper. But such lofty ambitions often break down in practice. For example Beit Bridge is the busiest border crossing in SADC. But delays caused by corruption and incompetence are adding $400 to $500 a truck a day to the costs of moving goods across the border.

Protecting the sovereign right of leaders like Mugabe to be laws unto themselves is costing the whole region the business confidence it needs to attract investment and grow.