Southern Africa: Rights Activists Angry Over ‘Sabotage’ of Tribunal

Catherine Sasman

23 May 2011

THE Southern African Development Community (SADC) Extraordinary Summit’s suspension of the SADC Tribunal for a further 12 months, has been described as “sabotage”.

The summit that ended on Friday in Windhoek decided that a process aimed at amending the relevant SADC legal instruments pertaining to the Tribunal be considered in August, with a final report from regional Ministers of Justice and Attorneys General only in August 2012.

In the meantime, it said, members of the Tribunal whose term of office expired in August 2010 should not be reappointed, and that there will be no replacement of those whose term of office will expire on October 31 2011.

The summit further placed a moratorium on receiving any new cases or hearings of any cases by the Tribunal until the SADC Protocol on the Tribunal has been received and approved.

“By sabotaging the Tribunal, SADC leaders have shown exactly where their loyalties lie – in protecting their friend, President [Robert] Mugabe [of Zimbabwe], from the consequences of his regime’s illegal activities rather than defending the rights of SADC’s 200 million citizens,” said the director of the Southern Africa Litigation Centre (SALC), Nicole Fritz.

The review of the Tribunal started in August last year when leaders called for a review of the role, functions and terms of reference of the Tribunal.

SALC said the suspension of the Tribunal for a further 12 months could spell a fatal blow to the rule of law within the region.

“It is clear that SADC leaders have no respect for their own regional court or international legal norms and feel that they can violate the Tribunal’s independence, the rule of law and the right of southern Africans to access justice with impunity,” said Fritz.

Civil society organisations said the summit had ignored an earlier petition signed by SALC and 18 other organisations – including the SADC Lawyers Association, the East Africa Law Society, and the Pan-African Lawyers Union – expressing their concern about the future of the Tribunal and urging member states to take measures to strengthen the Tribunal instead of weakening and “sabotaging” the institution.

The petition made an appeal to SADC Council of Ministers that met in April in Swakopmund to consider a commission report on the review of the Tribunal, to affirm the Tribunal’s institutional autonomy and judicial independence.

It further proposed that the Tribunal retain its jurisdiction to receive citizens’ petitions on issues of human rights and trade, and immediately ensure there are enough judges for a quorum for the Tribunal to continue with its work to guarantee the right of SADC citizens to access justice.

SALC said it appeared that the SADC leaders intend to create an appeal structure to review Tribunal judgements and further that the Democratic Republic of Congo (DRC) and South Africa, and others, wish to nominate judges to the Tribunal and to such an appeal body.

This, said Joe van Zyl of the Swissbourgh Group that has a case pending before the Tribunal, appears that SADC leaders intend to restructure the institution to allow Zimbabwe to appeal against the Tribunal’s earlier judgements in the case of Mike Campbell and 77 other Zimbabwean commercial farmers – who has died in the meantime – that disallows the State to continue with illegal land grabs.

“SADC Member States may ensure that such appeal body consists of biased and not impartial judges appointed to protect Member States’ vested interests and not to uphold the rule of law,” maintained van Zyl.

Van Zyl said the conduct of the SADC Member States is in clear violation of the International Covenant on Civil and Political Rights and its Protocols (ICCPR).

He said Swissbourgh has, as a first step, instructed its legal representatives to lodge a complaint with the HR Committee against SADC States following their violation of the Convention.

The formal complaint, said van Zyl, is in the process of being finalised and that it would be lodged in due course.

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