What Will SADC Leaders Say of the Tribunal at the UN Meeting on Rule of Law?

September 11, 2012

Later this month heads of state and government will gather in New York for the opening of the General Assembly. The theme of the High-Level Meeting for this year is “The Rule of Law at the National and International Levels“. It is hard to imagine how SADC head of state and government will address the assembly on this theme, having so recently presided over the dismantling of the SADC Tribunal. It would be refreshing were they to be frank, admitting that they’re entirely indifferent to the rule of law enterprise: happy to observe the principle when it suits their immediate self-interest; resolutely opposed when it threatens those interests. As it is, we can expect lots of lip-service to a principle that has been honoured recently spectacularly in the breach.

Below, an analysis from SALC’s Nicole Fritz.

So often are the winds of change said to blow through the southern reaches of Africa that the uninformed might think that here there are always hurricanes. Last month’s SADC Summit held in Maputo, Mozambique really did give the impression that transformation gusts were sweeping the region: three new leaders, among them Southern Africa’s first female head of state, took a bow – Lesotho’s new prime minister and Malawi’s and Zambia’s new presidents.


Not for this SADC Summit apparently the empty, diplomatic platitudes of old: it told Rwanda it needed to “cease immediately its interference that constitutes a threat to peace and stability, not only of the DRC, but also of the SADC region.” Nkosazana Dlamini-Zuma, chairperson-elect of the African Union, also addressed the Summit – her participation seemingly a recognition of the mandate she’d received from them to effect broader change within the continental body.


But whatever the impression of winds, mainly it was just hot air. Buried deep in the SADC’s Summit’s final communique was the announcement that SADC’s leaders intended permanently shelving the current SADC Tribunal. A new protocol is to be negotiated between states; a new Tribunal will be established. This time, however, no individuals will be permitted to access the court.


In so doing the Summit denies SADC citizens access to justice and legal remedy; it violates judicial independence. In fact, the decision – to summon up a new Tribunal and cast away the old – is entirely without legal basis.


The Summit knows this. It disregarded completely the legal advice it had itself solicited. In 2010 it suspended the Tribunal, ostensibly a necessary part of the review it commissioned of the powers, functions and role of the Tribunal. The independent experts it appointed held that the Tribunal had been lawfully established and that it should commence functioning again as soon as possible.


That wasn’t the advice the Summit wanted and so it mandated its own Ministers of Justice and Attorneys General to make recommendations amending the current Tribunal’s protocol. The committee tried to accommodate the Summit’s objections, proposing that the Tribunal’s human rights jurisdiction be postponed. But there was no getting around the fact that the Tribunal must be re-operationalised with individual access secured and it advised accordingly.


The Summit declared otherwise – not concerned for law or for the considerable expense and time wasted. Nor does it appear to have given the region’s leaders any pause that they would be seen to preside over the dismantling of an integral part of the community, its judicial organ, and that this would jeopardise the entire regional integration project – the very reason for existence of the club.


Several SADC agreements, such as the one relating to gender and development, specifically look to the Tribunal to give them effect.  That these agreements are now to all intents and purposes worthless makes them the collateral damage of the Summit’s decision.


How was this point of absurdity reached? As now well known, the Zimbabwean government has been the Tribunal’s most fierce antagonist. Despite nominating a judge to sit on the Tribunal and appointing counsel to defend it before the Tribunal, Zimbabwe contested its legitimacy when it issued a series of rulings dealing with the land expropriations process that were unfavourable to Zimbabwe.


In truth these should never have been among the first cases heard by the Tribunal. New courts – domestic or regional – are fragile creatures. They hold neither a sword nor a purse and depend for their survival on something much more ephemeral: an acceptance of their legitimacy and authority. As they cultivate, in their early years, this culture of acceptance they can ill-afford to take on the most politically contentious matters.


It is worth comparing South Africa’s Constitutional Court. The first case it heard concerned the constitutionality of the death penalty. Public opinion then and now favours the death penalty. But the ANC majority party does not. The ANC might have instead legislated on this matter rather than allowing the controversial issue to be tested by the new court. But the court could issue its judgment against the death penalty, safe in the knowledge that it would not incur the enmity of the ruling party.


Of course, it is those most politically contentious cases for which access to justice is most difficult to obtain. And had the SADC Tribunal judges been more calculating, determining not to hear the Zimbabwean land cases on the basis of admissibility or standing, for instance, they would undoubtedly have done an injustice to the claimants – but an injustice which may have safeguarded the long-term sustainability of the Tribunal.


As it is, Zimbabwe has – with some success – sought to characterise the Tribunal as the last bastion of those who would reverse land reform, not just the discriminatory and arbitrary manner in which it was conducted, and retard the liberation process. That the Tribunal also offered the prospect of redress to those like unfairly dismissed Swaziland Judge Thomas Masuku who had the temerity only to dispense justice independently, Botswana’s San people who have been pushed off their ancestral lands, and journalists jailed in Angola for criticising public officials, has largely been lost.


In fairness, it would be wrong to place the blame for the Tribunal’s demise only at Zimbabwe’s door. Tanzanian President Jakaya Kikwete has been resolute in his opposition to the Tribunal. As has Botswana’s President Ian Khama – surprising when you consider the number of statements Botswana has issued distancing itself from the antagonistic position adopted by the AU towards the International Criminal Court. But then Khama doesn’t likely expect to be brought up on charges of genocide.


And what of South Africa? President Zuma had already left the Summit when the Tribunal decision was taken but even had he remained there would be no different outcome. Department of International Relations and Cooperation spokesman Clayson Monyela explained in perfect frankness that South Africa’s position on the Tribunal was “neither here nor there.” South Africa is not particularly opposed to the Tribunal but it certainly won’t expend any political capital or goodwill to secure its survival.


Later this month heads of state gather in New York for the annual opening of the United Nations General Assembly. This year, the theme of the General Assembly’s High-Level Meeting is the ‘Rule of Law at the National and International Levels’. SADC leader after SADC leader will take to the podium mouthing pieties about the importance of rule of law in advancing development, securing peace and stability and promoting a more equitable global order.


In explaining away the demise of the SADC Tribunal we can expect to be treated to whirlwinds of duplicity.



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