Blow for human rights as body stripped of powers
Regional leaders met last week and adopted a new protocol to reduce the powers of the SADC Tribunal to adjudicate disputes between African states, writes Peter Fabricius
SOUTHERNAfrican leaders meeting in Zimbabwe this week drove the final nail into the coffin of the SADC Tribunal as a court empowered to hear human rights and other complaints of regional citizens against their governments.
The leaders, meeting for the summit of the Southern African Development Community (SADC), adopted a protocol which will reduce the powers of the SADC Tribunal to adjudicating only disputes between states of the 15-member organisation. The tribunal came into being in 2005 as the court of last resort for all SADC citizens denied justice by their national courts.
It lasted just five short years before the SADC heads of state suspended it in 2010. That was at the behest of Zimbabwean President Robert Mugabe, who objected to it because it ruled that his arbitrary confiscation of white farmland had discriminated against the farmers because they were white.
At their 2011 summit, the SADC leaders terminated the contracts of the tribunal judges and, in 2012, they decided a new protocol should be drafted to limit the tribunal’s powers to hearing disputes between SADC governments, thus formally depriving it of its powers to hear complaints from SADC citizens against their own governments.
That draft protocol was adopted at the SADC summit, which ended at Victoria Falls in Zimbabwe last Monday.
By “neutering” the tribunal, as some commentators have put it, the SADC leaders have left their citizens without recourse to legal remedy if their national courts fail them.
Although the SADC Tribunal was stripped of its real power because it tackled the highly-contentious issue of land ownership in Zimbabwe, it had also adjudicated uncontroversial cases such as the seizure of the assets of foreign investors by governments.
Disempowering the tribunal has also dropped the SADC below West Africa and East Africa in the ranking of protection of human rights.
The regional court of the Economic Community of West African States (Ecowas) is now the only one which has an express mandate to hear human rights cases. It was founded in 1991, but only acquired a mandate to hear such cases in 2005/2006.
The East African Court of Justice, the equivalent court of the East African Community, has a more ambiguous mandate on human rights, as Lucyline Murungi and Jacqui Gallinetti of the University of the Western Cape have pointed out in an article in Sur, the international journal on human rights.
Although its mandate includes interpretation of the East African Community’s treaty, which explicitly includes protection of human rights, the court has no express human rights mandate.
However they also note that many commentators believe the court has acquired an implicit human rights mandate as it has ruled on several human rights issues through interpreting the treaty.
Mugungi and Gallinetti say that the intention of the East African Community is to give it an express human rights mandate in the future.
And SADC lawyers have vowed to campaign to return the human rights mandate to the SADC Tribunal.
Emilia Siwingwa of the SADC Lawyers Association said the law societies and bar associations of the individual SADC member countries were seeking rulings from their own courts requiring their governments to oppose the new protocol on the Tribunal until violations of constitutional and international law in their decisions about the Tribunal had been corrected.
The lawyers claim, among other violations, the SADC leaders never consulted SADC civil society, as they were obliged by the SADC Treaty to do, before stripping the tribunal of its powers.
She said Tanzania’s law society had lodged an application with the country’s high court and the Malawi Law Society had notified that country’s attorney general of its intention to launch similar legal proceedings against the Malawi government.