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Secrecy on SADC Tribunal review condemned

A leading international law expert, Gerhard Erasmus has come out strongly against the lack of public debate on when and how the judicial function of SADC will be restored.
In a paper entitled: “What has happened to the protection of rights in SADC?”, Erasmus said the manner in which the review of the roles and functions of the SADC Tribunal has been handled gives rise to serious concerns.
He said: “There is no debate about the issues involved and no public information about the content of the expert report commissioned by the SADC summit, which has been submitted in March 2011.
No indications have been given as to when and how the present impasse will be resolved. Since March last year this matter is ‘under discussion’ but only government officials are involved.
“What exactly they are deliberating about is not known. There are no indications that national parliaments, professional bodies or the business community are involved. No official response to the expert report has been formulated. These responses will presumably be for the eyes of the governments only.”
Erasmus added that the decision by the Windhoek SADC summit in August 2010 to suspend the functions of the SADC Tribunal give rise to serious concerns about the rule of law in this organisation and about the protection of rights. He said that since the proposed changes have the potential to affect private parties and business, a robust public debate was necessary.
“The decision to suspend the functioning of the Tribunal has resulted in the de facto amendment of the Treaty and Protocol on the Tribunal, but involving what is a prima facie ultra vires action on the part of the summit.
“It (summit) does not have the power to suspend the judicial arm of SADC or any part of the treaty. If changes to existing legal instruments become necessary they should be brought about by giving effect to the amendment provisions in the applicable legal instruments
“When proposed changes go further and affect the rights of private parties, traders and investors in a rules-based trade regime there should be a proper debate about the essential issues at stake and the nature of any amendments,” he said.
Erasmus said that under the type of arrangement foreseen by the SADC treaty, it should be possible for legal and natural persons to invoke the treaty in domestic courts in appropriate instances. He argues that this is not happening because members have not respected these provisions.
“Part of the operational difficulty with SADC is that compliance with international obligations is not being properly monitored and there are no effective sanctions for non-compliance. SADC needs a mechanism to perform these functions.
“The treaty does provide, in principle, for sanctions against members that ‘persistently fail, without good reason, to fulfil obligations assumed under this treaty,’ or when they ‘implement policies which undermine the principles and objectives of SADC.’
“The Zimbawean saga and that country’s failure to comply with the SADC Tribunal’s rulings on its human rights violations have revealed the weakness in this arrangement. The summit was not prepared to act against Zimbabwe; instead, it decided to revisit the powers and functions of the Tribunal.”
Erasmus contends that the exact nature of the relationship between the Tribunal and national courts, the effect of SADC law within the member states, and the enforcement of rulings of the Tribunal are not clear. He is of the view that SADC law and practice cannot mature unless these matters are clarified.
“These are additional reasons why the expert report commissioned by the SADC summit should be publicly discussed.
“The legal profession, the business community and academia in the member states have a direct interest in these issues and a responsibility to ensure that such a deb ate does take place.”

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