Summit assigns itself jurisdictional powers it does not have
“Summit considered the Report of the Committee of Ministers of Justice/Attorneys General and the observations by the Council of Ministers and resolved that a new Protocol on the Tribunal should be negotiated and that its mandate should be confined to interpretation of the SADC Treaty and Protocols relating to disputes between Member States”
Any meaningful re-instatement of the SADC Tribunal, in fact, the very existence of the Tribunal in its agreed form, was put on the back-burner at last week’s SADC Heads of State summit with this bland sounding resolution. But there is much upwelling behind the scenes, with mounting pressure from government leaders who do not recognise Mugabe’s illegal reign in Zimbabwe.
Listed as Resolution 24 in a list of 30, this position is the first clear indication what low priority has been assigned by the heads of state to the most important legal institution for the region’s successful integration.
This does not mean the fate of the Tribunal is sealed, it only means the treaty that established the Tribunal is regarded null and void by the heads of state, at least by the summit, and that a new treaty must be negotiated, one in which the protection of human rights is excluded. This process will certainly not take less than two years, and if Mugabe gets his way, it can be delayed for perhaps as much as five years.
It must not be forgotton, the independent functioning of the SADC Tribunal became a major embarrassment to Mugabe after he failed to obtain a majority in his own country’s presidential election. After cooking the election books, he managed to survive as president but then had to deal with the growing exposure of his failed policies, and his failure to protect human rights, through two landmark cases brought against him and his presidency, in the Tribunal. The next chapter happened here in Windhoek when a SADC Heads of State Summit, on instigation of Mugabe and his cronies, suspended the Tribunal. This was two years ago. In the meantime, the Tribunal issue has sunk consistently in the rankings, at every summit.
One of the junior legal partners, at that time, in the Constitutional Assembly that drafted Namibia’s constitution, Prof Gerhard Erasmus, this week reacted to the prolonged suspension of the Tribunal, saying in a research paper, the Tribunal is not off the agenda. “There is an opportunity now for revisiting its jurisdictional powers in order to give the region an institution for ensuring rules-based trade and integration. Elements of the rule of law can be retained and be improved. This effort should include arrangements for the protection of the rights of natural and legal persons involved in cross border business.”
And I think that is the core of the issue. One can have as many rules for trade as are required, but if the integrity, safety, and dignity of those involved in that trade, are not guaranteed and protected, then it becomes a serious hindrance to the promotion of intra-regional trade. And that, supposedly, is what the SADC structure has tried to make us believe for many years.
Professor Erasmus points out that the SADC Tribunal is provided for in the SADC Treaty; the “constitution” of this organisation. It has been functioning, since 2005, in terms of its own Protocol.
Says the learned lawyer, “This Protocol is an international agreement in its own right and can only be altered in terms of the applicable amendment clause. The route now being followed (a Summit decision in 2010 to suspend operations of the Tribunal and another decision now to redesign it so to limit its jurisdiction) is unlawful in terms of SADC legal instruments and international treaty law.”
“These developments were triggered by Zimbabwe’s objection to decisions by the Tribunal which found it in violation of its obligations under the SADC Treaty. The correctness of these rulings was confirmed in a subsequent report by an international expert appointed by SADC to investigate the matter.”
Erasmus observes further “These were complaints brought by Zimbabwean nationals. In both instances the Tribunal determined that Article 4(c) and Article 6(2) of the SADC Treaty required SADC Member States to comply with human rights, democracy and the rule of law. The SADC states drafted these provisions and ratified the Treaty which contains them. They apparently did not consider their own legal instrument worthy of compliance.”
It is a fallacy to claim to put regional integration high on the agenda, but then in one careless move, strike the institution that is the very embodiment of the legal framework upon which that integration process will be based. Without a functioning Tribunal, pursuing the much-claimed regional integration to grow regional trade to lessen southern Africa’s dependence on the export trade, is merely a chimera.