Fate of Tribunal Today
May 20, 2011
Today the SADC Heads of State will make the final decision on the role, functions and mandate of the SADC Tribunal after the completion of the review of this international court. The SADC ordered the review of the SADC Tribunal at the 30th Summit in Windhoek in August 2010. After the Council of Ministers meeting on Thursday, 19 May the only contentious issues will be whether the Tribunal should allow private access and whether the judges whose terms expired in October 2010 should be reappointed.
The Council of Ministers noted the recommendations of the SADC Ministers of Justice who met in Namibia from 14-15 April to consider the report by the World Trade Institute (WTI). The WTI was commissioned by SADC to do the Tribunal review. The report was largely positive and the recommendations largely retain the integrity and legitimacy of the Tribunal. In fact all the Ministers of Justice, with the exception of the Zimbabwean minister, agreed that the SADC Tribunal was properly constituted and that the over 20 decisions it has handed down are binding on the parties concerned. They also agreed that the totality of SADC Community law pointed to the fact that the Tribunal had jurisdiction to deal with human rights petitions. The Council of Ministers further agreed that it would be necessary to create an appellate chamber to deal with appeals at the Tribunal and that the final decisions by SADC’s principal judicial body would be enforceable in all SADC States.
The Zimbabwean government thus is isolated on most of the fundamental issues on the SADC Tribunal. The contention by Zimbabwe that the Tribunal should deal only with interstate disputes and disputes between SADC organs and their employees can only be tabled for summit debate after a member state has made a proposal for amendment of the SADC Tribunal Protocol. The issue of appointment of judges, however, may have to be determined by the Heads of State at the current extraordinary summit. There are countries such as South Africa and the DRC seeking to nominate their nationals for appointment to the Tribunal bench and if the judges whose terms ended in 2010 are reappointed such states would have to wait for 5 years when new nominations will be done.
If the Heads of State adopt the recommendations of the Ministers of Justice report, the future looks bright for the SADC Tribunal with the only dark cloud being the private access issue. Hopefully we will not have inordinate delays on the appointment of judges so that the SADC Tribunal should resume its judicial functions with the same efficiency we have witnessed since it received its first case in 2007.