Killing Southern Africa’s Human Rights Court

Meeting in Maputo, Mozambique, on August 18, the leaders of the Southern Africa Development Community (SADC) extended indefinitely their 18-month suspension of the SADC Tribunal. Delivering a major blow to hopes for the rule of law in the region, the 15 SADC member states also determined that a successor court, if ever constituted, would have no authority to hear cases brought against national governments by individuals, businesses, or organizations on human rights or any other matter. Instead, only governments would have access to the tribunal, and only for the purpose of resolving intergovernmental disputes over the terms of the SADC treaty.

The tribunal first experienced hostility in 2010, when the Zimbabwean government reacted angrily to a judgment that its violent seizures of white-owned farms were racist and in violation of the human rights guarantees of SADC’s founding treaty. Zimbabwe waged a strident campaign using specious arguments against the tribunal, while other SADC governments for the most part sat idly by, seemingly pleased to let Zimbabwe take the lead in destroying a judicial body that could one day issue decisions against them as well.

Within SADC, seven countries are governed by parties that have clocked a combined total of 237 years in power, and the new decision represents another step toward transforming the regional bloc into an association of autocrats whose main priority is the perpetuation of their own rule, whatever the costs to democracy, the rule of law, or respect for human rights.

The SADC Tribunal was established in 2007 to adjudicate on all matters of SADC law, which includes important human rights elements. In its original form, the tribunal could be accessed by citizens, companies, and governments alike, and it had a clear mandate to decide cases related to human rights. Tribunal judges displayed courage and a willingness to interpret SADC law progressively, delivering a number of findings against the governments of the Democratic Republic of Congo and Zimbabwe. Despite the court’s praiseworthy judicial independence, none of its decisions were ever enforced by a SADC member government, and the community as a whole never intervened with a member government in support of enforcement. The SADC leaders’ latest decision is therefore admittedly a setback to the prospects for future improvements, rather than a change in the already poor situation on the ground.

Following the Zimbabwean government’s initial demands for the tribunal to cease functioning, SADC leaders ordered a protracted expert review process that produced recommendations to resume the tribunal’s operations with all of its original authorities. The experts’ recommendations were agreed to by SADC justice ministers meeting in Maputo immediately prior to the summit meeting of SADC leaders. However, the leaders decided 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.”

Tribunal supporters who were present at the summit have stated that the final decision was strongly influenced by the Zimbabwean delegation. This decision highlights the long-standing lack of political will by SADC leaders, and in particular President Jacob Zuma of South Africa, to stand up to Zimbabwe’s President Robert Mugabe, whose government over the course of 31 years has compromised the rule of law to the extent that police, prosecutors, and judges operate as extensions of Mugabe’s Zimbabwe African National Union–Patriotic Front (ZANU-PF) party. An erstwhile tribunal judge warned that “the Zimbabwe virus threatens all of SADC.” Other commentators wondered what Zuma got in return for letting Zimbabwe have its way. It has been noted that in the six-month campaign waged by South Africa to install its candidate as chairperson of the African Union Commission, Zimbabwe initially supported an opposing candidate and then abruptly switched to the South African nominee.

This SADC summit decision rescinds important rights previously enjoyed by citizens of SADC countries; it violates principles that underpin the SADC Treaty; and it moves Southern Africa further down an antidemocratic path. When confronted with government discrimination or oppression, SADC citizens, businesses, and nongovernmental organizations (NGOs) will be left wondering how they can plea for enforcement of rights granted to them under SADC law. Theoretically, SADC citizens could still use the African Court, an African Union body, but in practice, only Malawi and Tanzania have provided mechanisms for their citizens to access the African Court.

In recent years, African states have made collective efforts to establish regional and subregional institutions designed to promote economic cooperation and a rules-based system for African-led development. One example is SADC’s agreement to form a Tripartite Free Trade Area (TFTA) with the Common Market for Eastern and Southern Africa (COMESA) and the East African Community (EAC). However, SADC seems to have ignored the fact that COMESA and the EAC both have functioning regional courts, where individuals and companies can have legal commitments enforced and rights violations corrected. Now that the SADC Tribunal is effectively dead for these purposes, SADC’s development partners would be right to question the security of their investments and the integrity of commercial agreements in the SADC region.

The agenda of the 2012 session of the UN General Assembly in September includes topics like promotion and protection of human rights, implementation of human rights instruments, and the rule of law at the national and international levels. In their addresses to the General Assembly, the same SADC leaders who killed the tribunal will express themselves piously on these subjects. Civil society must challenge them in the media and in the pertinent UN and other international bodies. These leaders’ records on human rights and rule of law with regard to the tribunal must be exposed. The only alternative is acquiescence to the transformation of SADC into little more than an exclusive political club aimed at entrenching dictatorial tendencies and shielding Southern Africa’s worst human rights abusers from sanction.