A Critical Moment for Southern Africa’s Tribunal
Southern Africa’s regional court has been shuttered for almost two years, but in August it may make a comeback, albeit with limited powers. The following blog post examines why this is an important development for more than just the human rights community.
As a rule, political leaders in southern Africa do not care for vibrant, independent-minded courts. In a region where respect for human rights, the rule of law, and judicial independence are in short supply, so too are courageous courts capable of challenging excessive executive powers.
So when the Southern African Development Community (SADC) decided several years ago to create its own regional court with real powers, akin to the European Court of Justice, observers welcomed the possibility that the region’s political and economic integration would have the effect, perhaps unintended, of strengthening the rule of law. It was hoped that the court would develop human rights jurisprudence in SADC, effectively punish corruption, and provide succor to those doing business in the region.
These hopes were short-lived, however. After the SADC Tribunal began to pass judgments against member governments, it was effectively suspended through a bureaucratic review process that has been ongoing since August 2010.
Perhaps unsurprisingly, Zimbabwe under President Robert Mugabe is the chief orchestrator behind efforts to kill the court. The Zimbabwean government is concerned about the human rights mandate of the SADC Tribunal, particularly as manifested in its conclusive 2009 decision in the long-running case Campbell v. Zimbabwe, which upheld the applicant farmers’ property rights and denounced the land-grabbing actions of the Zimbabwean authorities.
Since then, Zimbabwe has played on the fears of other governments in the region, which also realize to their horror that a regional court—one that they created, but over which they have limited control—could issue enforceable judgments in favor of their own citizens, and against them and their domestic policies.
So where does the SADC Tribunal stand now? Meeting in Luanda, Angola, in June 2012, the SADC ministers of justice brokered a deal that reflects a delicate political balancing act. The uneasy compromise states that individuals and organizations will be able to bring cases to the tribunal on all matters covered by SADC law, but that for now at least, they cannot bring cases dealing with human rights matters.
For those cases, SADC citizens will have to wait until the tribunal’s human rights jurisdiction is provided for in a separate protocol, to be agreed by the region’s leaders at a later, unspecified date. In the interim, it is unclear what will happen if individuals bring cases to the tribunal that deal with a matter covered by the SADC treaty or one of the SADC protocols, but that also touch indirectly on the human rights of the applicant.
SADC realizes that if it is to effectively encourage investment and trade, it needs to have a court that can be accessed by people and companies doing business in the region. But a growing group of SADC countries, led by Zimbabwe, want to limit the extent to which individuals can bring human rights cases against them.
Driven by these competing interests, SADC member states now seem to have hammered out a makeshift solution that mirrors the situation at the East African Community (EAC) Court of Justice, whose human rights mandate has yet to be established. The obvious risk is that SADC could fall into the same trap, and five or even 10 years could pass before the human rights protocol is agreed to. A final decision on the justice ministers’ proposal is due to be made at the next SADC summit in Maputo in August.
Regardless of the outcome of the summit, it is crucial that all groups with a stake in this process begin to take a stronger interest in what is fast becoming a litmus test for the rule of law in the SADC region.
Under the current proposal to reform the SADC Tribunal, businesses investing in the SADC region with a legal interest in a given matter will be able to bring their complaints and disputes to the tribunal. This provides an important guarantee for investors who may not be able to find redress in national courts, which often come under pressure from governments that are parties to disputes.
The proposal also provides for a new Appeals Chamber, with the power to review the findings and conclusions of mediation panels established under other protocols, including the Protocol on Trade. Similarly, the tribunal would remain an important final arbiter under the Protocol on Finance and Investment.
These aspects of the reform are important because they show that the SADC Tribunal is far more than just a human rights court. A handful of human rights organizations have been the most vocal advocates for a stronger tribunal, but there are clearly many more interest groups that should be calling for its reinstatement.
In order to ensure that the right type of pressure is brought to bear on SADC leaders in the run-up to the summit, human rights NGOs should now be joined by a broader cross-section of civil society—including business, the media, and labor unions from both southern Africa and farther afield.
Countries like the United States and the United Kingdom should also be concerned about the tribunal and use their influence to encourage SADC leaders to provide for its human rights mandate, or at least to ensure that some form of individual access is guaranteed after August.
There is also a lobbying role to be played by local chambers of commerce, and by the American and international chambers, which represent the interests of potential investors in the SADC region.
As the review process thus far has shown, the technical proposals by the justice ministers are not set in stone, and SADC’s political masters may very well come up with different ideas in Maputo. Consequently, the need for intensive, high-level advocacy over the next several weeks cannot be stated strongly enough.