Roundtable Discussion

Implications of the Dissolution of the SADC Tribunal and the Rule of law in the Region

African Centre for Justice Innovation (ACJI)

Crowne Plaza Hotel, Rosebank, South Africa – 28 June 2014

 

  1. Background
  2. Objectives and Outcomes

The SADC Tribunal was established in terms of Article 9 of the SADC Treaty as one of the SADC Institutions and its supreme judicial arm. The Tribunal was mandated by Article 16 (1) of the SADC Treaty to interpret the Treaty and its subsidiary instruments as well as to adjudicate disputes referred to it by Member States and citizens of the region. The Tribunal was also mandated to give advisory opinions on such matters as the SADC Summit or the SADC Council may refer to it. TheProtocol on the Tribunal formally establishes the organisation, jurisdiction, operating procedures, policies on legal decisions, enforcement and other aspects of international law in the SADC region. The Tribunal had jurisdiction over disputes between States as well as between States and natural or legal persons. The Tribunal had exclusive jurisdiction on disputes between organs of the SADC or between the SADC and its citizens.

The SADC Tribunal was suspended following several judgment against the government of Zimbabwe related to the expropriation of agricultural land in that country. Since its official inauguration in 2005, the Tribunal handled nineteen (19) cases, eleven (11) of which were against the government of Zimbabwe and eight (8) of those were on land expropriation. In particular, the demise of the Tribunal was a direct consequence of the reluctance of the SADC Summit to take appropriate action against Zimbabwe over the non-enforcement of the Mike Campbell judgment. Accordingly, in Mike Campbell (Pvt) Ltd and Others v Republic of Zimbabwe, the Tribunal decided that the government of Zimbabwe may not evict farmer Mike Campbell from his land, and that farm evictions as per Amendment 17 of theZimbabwean constitution amount to de facto discrimination of Whites. The Zimbabwean government rejected this and other rulings made by the Tribunal and questioned its legitimacy.

The SADC Summit in confirming the disbandment of the Tribunal resolved that SADC Ministers of Justice and Attorney Generals should negotiate a new protocol with a fresh mandate to reconstitute the Tribunal. The new regional court will be confined to the interpretation of the SADC Treaty and Protocols, dealing only with disputes between member state and non-state actors will not be able to access the new Tribunal. This limitation of the powers of the Tribunal to disputes between Member States has serious implications on the rule of law and access to justice in the region. This is especially true since cases handled by the Tribunal were all individual cases as SADC Member States are reluctant to take each other to court. Therefore, the decision to establish an inter-state Tribunal raises concerns about the necessity of such an institution if Member States are not going to utilize it.

 

It is in this regard that the African Centre for Justice Innovation (ACJI) decided to convene a Roundtable Discussion to discuss the implications of the suspension of the Tribunal on the rule of law in the SADC. The ACJI noted that while many discussions have taken place about the implications of the suspension particularly, the proposed limitations of the mandate of the new Tribunal on aspects such as democracy, human rights, regional integration and conflict management in the sub-region, little has been dedicated to the rule of law. In addition, ACJI noted the information deficit related to the progress made to reconstitute the new Tribunal. Through this Roundtable Discussion, the ACJI sought to close that gap and provide a platform where legal scholars, lawyers, members of the judiciary and Civil Society Organisations (CSOs) could receive updates on developments, exchange ideas and explore possible intervention strategies to minimize the impact of the limited mandate of the new Tribunal on the rule of law in the sub-region.

The stated objectives of the Roundtable Discussion were to provide a collegial environment for stakeholders to, inter alia, discuss:

–        The implications of the dissolution of the Tribunal for the rule of law in the SADC region;

–        The justification proffered for the dissolution of the Tribunal; and

–        Update on progress related to the establishment of the new Tribunal.

The stated expected outcomes from the Roundtable Discussion were an increased awareness among the participants on:

–        The implications of the dissolution of the Tribunal on the rule of law in the SADC region;

–        The progress on the establishment of the new Tribunal; and

–        Essential debates about the establishment of the new Court.

  1. Participants and Methodology
  2. Presentations and Discussions
  1. 1.Background to the Dissolution of the SADC Tribunal- Justice Charles Mkandawire

The Roundtable Discussion brought together a very select group of experts made up of justices, lawyers, legal scholars and CSOs from the SADC countries of Botswana, Zimbabwe, Malawi/ Namibia and South Africa. The ACJI was represented by its chairperson, Justice Obakeng Dingake (Botswana) and the Executive Officer, Adv Simon Jiyane (South Africa). Other participants included: Registrar of the SADC Tribunal, Justice Charles Mkandawire (Malawi/Namibia); Prof Shadrack Gutto, Institute for African Renaissance Studies, University of South Africa (South Africa); members of the Human Rights Institute of South Africa (HURISA) namely Ms Corlett Letlojane, Adv Sipho Mantula and Mr Clement Mavungu (South Africa); Acting Judge Nomagcisa Cawe (South Africa Labour Court); Ms Beatrice Mthetwa ( an Attorney, Human Rights activist and a Member of the World Justice Project from Zimbabwe), and Victoria Maloka, Centre for Mediation in Africa, University of Pretoria (South Africa). Apologies were received from the Department of Justice and Correctional Services, Department of International Relations and Cooperation. ACJI Board members – Justice Yvonne Mokgoro and Advocate Michelle Odayan.

Following welcome remarks and introduction of the ACJI by Adv Jiyane and Justice Dingake respectively, the Roundtable Discussion received two presentations on “the Background to the Dissolution of the SADC Tribunal” by Justice Mkandawire and “the Implications of the Dissolution of the Tribunal” by Professor Gutto. The presentations laid a solid foundation for participants to engage in robust discussions about the threats to the rule of law in the SADC and possible means to circumvent the negative consequences. The Roundtable Discussion was facilitated by Ms Corlett Letlojane who guided the discussions to ensure that the objectives of the meeting were reached. The facilitation model was a deliberate choice of methodology so that that the Roundtable Discussion could draw from the expertise and knowledge of the participants.

In line with the objectives and expected outcomes of the Roundtable Discussion, two presentations were received whose objectives were to provide background information on the dissolution of the Tribunal and an appraisal on current developments, as well as to explore the implications of the dissolution on the rule of law.

Justice Mkandawire presented a timeline of events that led to the decision by the SADC Summit to suspend the SADC Tribunal. Firstly, he clarified that the Tribunal was not dissolved, but it was suspended. He further highlighted that neither the SADC Treaty nor the Protocol on the Tribunal gives the Summit the competence to suspend the activities of the Tribunal. In order to confer such powers to the Summit, the Tribunal Protocol would first require to be amended as per the procedure elaborated in Article 37 of the Tribunal Protocol. Since no such procedure was followed, it can be concluded that the suspension of the SADC Tribunal was illegal.

Justice Mkandawire shared with the meeting that the beginning of the demise of the SADC Tribunal was a report in terms of Art 32, to the Summit about Zimbabwe’s non-compliance with the decisions of the Tribunal. Summit referred the matter to the Ministers of Justice/ Attorney Generals for advice. The Ministers failed to reach consensus, especially on whether or not the Tribunal was properly constituted. To that effect, the Ministers requested the SADC Secretariat to provide an independent legal opinion and invited other SADC members to submit opinions. The Secretariat approached an independent lawyer in Botswana who found that the SADC Tribunal was properly constituted. Botswana is the only country that submitted an opinion and confirmed the findings of the independent lawyer.

A further decision was taken for an independent opinion to be sought from a consultant outside of the SADC. The independent consultant also found that the SADC Tribunal was properly constituted and its decisions were binding on member states. The report, however, raised two concerns, namely: that the scope of jurisdiction of the Tribunal was too wide as it extended beyond trade to include human rights. Secondly that there were concerns related to which law to apply as the Tribunal Protocol recognizes other treaties and not just the SADC Treaty. The Summit also recognized the additional concern raised by the Council of Ministers related to the relationship between the Tribunal and national courts. The Council decided that a further 12 months was required for the Ministers to come up with a revised protocol. In the meantime, all operations of the Tribunal were suspended, pending the review of the Council of Ministers. In addition, a moratorium was placed on new cases and the judges whose terms had come to an end were not renewed or replaced.

With regard to the staff of the Tribunal, Justice Mkandawire mentioned that all contracts had been terminated as of April 2014. Only the Registrar and the librarian whose contracts end in 2015, are remaining. He underscored that the August 2014 Summit will decide on the future of the remaining staff. Should Summit decide to terminate their contracts, decisions will have to be made about the assets of the Tribunal.

As far as developments on the review of the Protocol is concerned, Justice Mkandawire briefed the meeting that a new draft protocol has been developed. It was discussed during the March 2014 SADC Summit in Malawi and will be presented to the upcoming Summit in Zimbabwe in August 2014. Justice Mkandawire highlighted that the mandate of the current draft of the Protocol is confined to inter-state parties and does not provide any access to individuals.

During the discussions that followed, Justice Mkandawire highlighted that the new Protocol will be a stand-alone instrument requiring two-thirds majority for it to come into force. This was to address the concerns by some Member States that it might take too long to ratify the Protocol. He emphasized that the suspension of the Tribunal and the current review process of its mandate will have no effect on the cases already decided under the old Tribunal. He conceded that the Tribunal whose mandate is currently under discussion will be a completely new mechanism, different from the old Tribunal, which suggests that the old Tribunal is, for all intents and purposes, dead. On public participation, the meeting noted that Art 23 of the SADC Treaty that requires stakeholders participation was not complied with when the decision to suspend the Tribunal was taken. Participants expressed concerns regarding the lack of citizenship participation and stakeholder consultation, especially on the exclusion of individual access to the court, which has a direct impact on citizens. Justice Mkandawire further underscored that there has been no success in so far as leave to appeal to the African Court is concerned as the African Commission could not refer the matter. However, the African Commission has acknowledged that human rights violations have indeed taken place. He indicated that the draft Protocol has not taken into account the decision/ recommendations of the African Commission.

Regarding possible strategic litigation by some NGOs against Member States on the exclusion of individual complaints from the new Tribunal, the meeting deliberated on the impact of such a move beyond serving an educative role about regional mechanisms. Suggestions were made that stakeholders should consider lobbying, advocacy, media campaigns and such like strategies to raise awareness and also to encourage Member States to reconsider their decision to exclude individual complaints. The meeting further noted that the cases against Zimbabwe at the Tribunal touched the nerve of many a Member States. The issue of land is a concern to everyone and a very sensitive issue in Southern Africa. The meeting acknowledged that perhaps it was the nature of the disputes that probably brought the Tribunal to its knees. It was perhaps the sensitivity of the land issue in the SADC that galvanized the Member States against the Tribunal. The demise of the Tribunal is reflective of the limitation of law and the institutions that the law establishes.

  1. 2.Implications of the Dissolution of the SADC Tribunal on the Rule of law in the Region: Shadrack Gutto.
  2. Consolidation, Summary and way forward

Professor Shadrack Gutto shared with participants that his opinion regarding the SADC Tribunal is that the decision of the SADC Summit was not to suspend the Tribunal, but to abolish it completely. This is reflected, among others, in the decision of the Summit not to reappoint or replace the judges whose terms had expired and the moratorium on new cases. Naturally under those circumstances, there is no court, hence a new Protocol had to be developed to usher in a new Tribunal.

In analyzing the reasons behind the decision, Prof Gutto presented that while is it common knowledge that land is a burning issue in Southern Africa, it is important to also take into account the fact that the decolonization process hasn’t been fully completed. There are unresolved socio-economic factors affecting the political issues at a regional level. Prof Gutto highlighted that in Southern Africa, the land question is combined with racial issues as the settlers have become the citizens of the countries they have settled in and they have not shared the material proceeds of the land. He underscored that race played a factor in the Zimbabwe cases before the SADC Tribunal, but land played a significant role.

Prof Gutto indicated that the implication of the suspension of the Tribunal and the review of its mandate is that the rule of law is on trial in the SADC and the entire African continent. He highlighted that the Campbell case had to be escalated to the regional court as it could not be satisfactorily addressed in the national courts of Zimbabwe as the judiciary was compromised. In that regard, the only source of recourse available was the regional mechanism.

Prof Gutto underscored that the rule of law in the SADC and the African continent is very weak. There is limited understanding of the rule of law by citizens such that they can’t hold the leaders accountable. He emphasized that there is a need to measure the draft protocol to ensure that it meets the threshold of the Bangalore principles of judicial conduct. Prof Gutto emphasized that the citizens of SADC should not be cheated into believing that the rule of law is only about dissolving disputes between states, as it also involves access to justice by people.

In light of the current developments regarding the draft Protocol, Prof Gutto proposed that there is an urgent need to mobilize stakeholders and find ways to expose the draft Protocol to the public before the Summit. He strongly advised that the stakeholders should fight for the individual and cooperate access to the court or otherwise lobby for another court that would give access to individuals. Prof Gutto lamented the fact that even at the continental level, the African Union (AU) is yet to establish an African Court of Justice that would give access to individual complaints. He further emphasized the need to appoint competent judges who will write proper judgments as those judgments will become the law of the SADC.

During the discussions, participants highlighted the need to have a multi-disciplinary approach to addressing the issue. Innovative strategies involving strategic litigation, advocacy, lobbying, media campaigns etc. were suggested as possible intervention strategies. The meeting heard how Zimbabwean CSOs have been locked out of previous summits while advocating for the draft Protocol not to be approved by Summit. In that regard, it was strongly advised that innovative strategies have to be developed and implemented to ensure that the voice of the CSOs is heard at the Summit. The meeting agreed that it is necessary to create an outcry in the public arena. To avoid reinventing the wheel, other stakeholders will be consulted to double capacity and strengthen efforts. ACJI will coordinate engagements with other relevant stakeholders and consider the possibility of convening another meeting involving more stakeholders such as the SADC Lawyers Association (SADCLA), SADC Coalition of NGOs (SADC C-NGO), HURISA, International Committee of Jurists (ICJ), etc.

At the end of very informative discussions, participants at the Roundtable Discussion agreed that it is important to fight for the individual and cooperate mandate of the Tribunal, as proposed by Prof Gutto to protect the rule of law in the SADC region. To that effect, the participants recommended the following as a way forward: and

–        Draft Protocol. Find ways to secure the draft Protocol and expose it to the public before the upcoming SADC Summit in Zimbabwe.

–        Stakeholder consultation. Liaise with other stakeholders who are already working in this areas to avoid duplication, but rather to strengthen efforts. These include organisations such as the SADCLA, SADC-CNGO, ICJ, Lawyers for Human Rights (LHR), Pan-African Lawyers Association (PALA), South African Litigation Centre (SALC), Open Society Initiative of Southern Africa (OSISA) and other national and regional organisations. Women’s organisations should also be consulted to ensure that women and gender perspectives are brought into the discussions.

–        Build strategic partnerships. Lobby strategic institutions to create a platform for exchange of information and awareness raising such as SADC National Human Rights Institutions (Human Rights Commissions, Offices of the Ombudsman/ Public Protector, Gender Commissions, etc.), Bar Associations and the Chief Justice’s Forum.

–        Identify champions. Use eminent persons to champion the course. Among others, the following persons could be approached: Archbishop Desmond Tutu, former Presidents such as Festus Mogae, Ketumile Masire and Thabo Mbeki. Current presidents such as President Ian Kgama and President Jacob Zuma. It was also suggested that for better results, the Ministers’ Council should be lobbied to get their support.

–        Multi-disciplinary approaches. Use innovative multi-disciplinary approaches and move beyond the traditional lobby and advocacy methods. This could involve a combination of methodologies such as strategic litigation, research, lobbying, mass media campaign including social media, public demonstrations, as well as attending the SADC Summits and other strategic regional and international meetings.

–        National mechanisms. Strengthen domestic courts across the SADC region and build own progressive jurisprudence from the bottom up.

–        Broader consultation meeting. ACJI received support from participants to convene a meeting of this nature with a broader audience to exchange information, develop joint strategies and coordinate efforts to ensure maximum impact.

  1. Vote of Thanks and Closure

In closing, the Chairperson of the ACJI, Justice Dingake, committed to a follow up meeting with a broader audience to coordinate and strengthen efforts. He expressed gratitude to all who attended.