Almost a decade after the SADC Tribunal was de facto suspended, the SADC heads of states have since re-negotiated the tribunal’s mandate based on the SADC treaty and protocols in relation to disputes between member states.
The Tribunal of the Southern African Development Community (SADC) was suspended at the Summit in 2012.
The adoption of a SADC Protocol in 2014 to establish a new Tribunal (without power to hear complaints by individuals) has been labelled by many as unconstitutional, in breach of Namibia’s international obligations, and invalid.
Consequently, the 2014 Protocol was signed by member states despite being criticised as unconstitutional by civil society in the region. This is because the 2014 Protocol takes away regional legal access for citizens on disputes with each other and SADC governments alike.
Minister of Justice Sakeus Shanghala, explained that SADC member states recrafted the mandate (protocol) to exclude jurisdiction for citizens of SADC member states to challenge the court decisions of SADC member states and it now purely focuses on disputes between member states and staff of SADC whilst functioning on ad hoc basis”.
The suspension of the Tribunal came about after 79 white commercial farmers in Zimbabwe won their cases before the Tribunal blocking the Zimbabwean government from expropriating their farms in 2009.
Thus, prompting the membership withdrawal of Zimbabwe from the Tribunal to abscond legal implications.
Namibia’s prominent human rights lawyer Norman Tjombe, while commenting on the changes made to the tribunal, said the new Protocol for the SADC Tribunal is far from satisfactory.
“The setup of the SADC Tribunal under the previous Protocol permitted ordinary men, women and children to access the Tribunal to have their human rights protected when the national courts are unwilling or unable to uphold human rights principles as detailed in the SADC instruments,” he explained.
Tjombe asserted that human rights for each and every citizen of SADC was summarily taken away by the Heads of State and Government, without any consultation in their respective nations – not even consultations with their respective Parliaments, including Namibia.
“This is required under the SADC Treaty and of course under Namibia’s Constitution in Article 17 which provides that each citizen has the right to influence government policies. How is it possible that citizens can influence the policies of Government, when the Government officials make decisions in Victoria Falls in 2014, far away from the streets, farms, factories and schools where the citizens live and work?,” he questioned.
Tjombe said the reason for the dissolution of the previous setup of the Tribunal, was no doubt because Zimbabwe lost several cases – in fact, have won none – in the SADC Tribunal.
“Instead of remedying its lack of adherence to only the highest standards of human rights and good governance or present winnable arguments before the Tribunal’s Judges, Zimbabwe went about campaigning to have the Tribunal closed down, and the rules changed.
It is like a football team always losing and then force the other teams to adopt a rules that will ensure that it will win the next game,” he said.
Meanwhile, President Cyril Ramaphosa of South Africa in his maiden State of the Nation Address recently stated that land expropriation without compensation will be a focal point for his administration.
Which unlike the Zimbabwean case will likely occur without legal implications for South Africa, provided it is constitutional. Commenting on land expropriation without compensation in South Africa, incumbent Attorney General, Albert Kawana emphasised the importance of the rule of law on the matter.
“South Africa is a sovereign state, which is entitled to come up with its own laws as deemed to be in the national interest.
Hence no other state can interfere with their policy decisions and from the Namibian perspective on property rights, we are guided by the constitution.
Article 16 of the Namibia constitution makes provision for the government to expropriate immovable property which includes land,” Kawana said.
But obviously, Kawana said, in our case it is expropriation with compensation.
“In most cases to the best of my knowledge, the government of the Republic of Namibia has pursued a more willing buyer/ willing seller route,” said the AG.
In a telephonic interview last week, Political analyst Moeletsi Mbeki strongly alluded to the ‘mentalities’ of liberation movements in Southern Africa as undermining the rule of law.
“In South Africa, like Namibia, the constitution was negotiated by different political parties, including the governing parties.
Hence when political parties value their party constitutions above the rule of law, we are faced with compromised democracy in Southern African nations.
An illustration of this is the SADC tribunal which was based in Windhoek, Namibia.
The Tribunal was part of the treaty of SADC and it was accepted by all member states. Once the Tribunal ruled against the expropriation of land by the ZANU-PF government in Zimbabwe; the liberation movement suddenly withdrew support of the Tribunal, whilst it was enacted on SADC laws,” he said.
Mbeki added: “As such, while it still exists, it is somewhat dissolved because we had a case in South Africa recently, where the lawyers argued that our government had no authority without going through parliament to sign on issues related to the Tribunal.”
Law societies in the region have since challenged and engaging governments for allowing the removal of the SADC Tribunal’s jurisdiction over individual and institutional rights cases in terms of a resolution by the SADC-LA Council.
Presently, the Law Society of South Africa (LSSA)has taken to court its challenges on the premise that “by signing the 2014 Protocol, the President has infringed the right of South African citizens to access justice in terms of our Bill of Rights”.
The LSS applied with the South African High Court: Gauteng division on 19 March 2015, to declare the decision by former President Jacob Zuma and the (then) Ministers of Justice as well as International Relations and Cooperation to vote, sign and plan to ratify the SADC Summit Protocol in relation to the SADC Tribunal.