Pulling teeth of SADC Tribunal has cost us all

THE DECISION by southern African leaders to neuter the SADC Tribunal has been viewed largely as a human rights issue.

But it is also a commercial issue, which hurts not only the individual victims of illegal actions by regional governments – who it deprived of legal redress – but 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 in Gaborone, Botswana, on the margins of the SADC summit, which starts today.

The SADC Tribunal was launched in 2005 as the supreme court of appeal in the region. It was 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 from their own courts.

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, which it had never done before.

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 for this week’s SADC summit “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, anyone affected by their decision, as required by the SADC Treaty governing all the organisation’s activities.

Effectively disbanding it “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 coalition said. The last point needs emphasis. In its Savuti Declaration, the Southern African Business Forum said: “The SADC has extensive plans for regional integration. The private sector of the region 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 the SADC.”

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

As the declaration indicated, the SADC’s failure to implement most of its ambitious plans is its major drawback.

“Regional integration” is the key objective of the SADC, its essential raison d’être.

Not content with embracing its own 15 members in a free trade area, which it has theoretically done, the 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 as the business forum heard last week, such lofty ambitions often break down in practice.

For example, Beit Bridge between South Africa and Zimbabwe is the busiest border crossing in the SADC. But delays caused by corruption and incompetence are adding $400 to $500 (R6 400) per truck per day to the cost of moving goods across the border.

As the Savuti Declaration indicated, the neutering of the SADC Tribunal is not just a problem for victims of human rights. Some of its cases were brought by business people seeking the recovery of assets stolen by foreign governments.

Protecting the sovereign right of leaders, such as Zimbabwe’s President Robert Mugabe, to be a law unto themselves, is costing the whole SADC region the business confidence it needs to attract investment and grow.

Business and rights leaders urge the reinstatement of the regional court

of appeal