10 Dec 2007: ISS Today: Assessing the SADC Tribunal

10 December 2007: Assessing the SADC Tribunal

 

In 1992 the Southern African Development Community (SADC) Tribunal was established by article 9 of the SADC Treaty and serves as the Supreme judicial body of the Community.  The main aim of the tribunal is to ensure that members of the Community adhere to the SADC treaty and to guarantee the proper interpretation of the Treaty and additional provisions provided by it.

 

According to the Protocol establishing the Tribunal, the Tribunal shall have jurisdiction over all disputes relating to the interpretation and application of the SADC treaty, all subsidiary instruments adopted within the framework of the Community, and the acts of the institutions of the Community.  The Protocol also states that the tribunal shall have jurisdiction over all matters provided for in any other agreements that Members states may conclude among themselves or within the Community and which confer jurisdiction on the Tribunal.  Importantly, the Tribunal also has jurisdiction over member states and legal persons. According to Article 16 of the SADC treaty, the decisions of the tribunal shall be final and binding.

 

Although the Tribunal was established in 1992, it experienced a bumpy start and the judges to the Tribunal were only appointed in August 2005, two years after the decision was taken to operationalise it.  The Tribunal also experienced some financial constraints. Due to these financial constraints and because there were no pending cases, member states agreed that the Tribunals judges will continue to live in their home countries and will convene only when necessary.

 

It is clear that although the SADC Tribunal got off to a rough start, it is still regarded as the Supreme judicial body of SADC. On paper at least, it seems to be a worthy institution tasked with the challenging mission of ensuring that members adhere to the Treaty. 

 

However, noble ideals aside, the critical question still remains to be answered. Will the SADC tribunal be able to fulfil its role as the “highest court in the land” or will it only be a white elephant?

 

Recently, a Zimbabwean farmer, Mr. Michael Campbell turned to the newly established and untested SADC tribunal after fruitlessly applying to the Supreme Court of Zimbabwe, seeking relief for himself, his family and his employees from the continued onslaught of invasions and intimidations on his farm. According to the Protocol establishing the Tribunal, no natural or legal person are allowed to bring an action against a State unless he or she has exhausted all available remedies or is unable to proceed under the domestic jurisdiction.  The fact that the Zimbabwean Supreme Court has unreasonably delayed the case since March 2007 forced Mr. Campbell to approach the Tribunal.

 

Mr Campbell and his counsel are building their case against the Zimbabwean Land Reform Policy, arguing that, since 2000, the process of acquiring land for resettlement purposes by the government was directed solely at white persons, regardless of any other factors, such as their proper use of the land, their contribution to the national economy, their citizenship, their length of residence or any factor other than skin colour. This action by the Zimbabwean government, according to Mr. Campbell, is in violation of Article 6 of the SADC Treaty, which states that SADC member states shall not discriminate against any person on the grounds of gender, religion, political views, race, ethnic origin culture, ill health, disability or any other grounds determined by the Treaty.

 

This landmark case was supposed to start on the 20th of November 2007 and marked the first case to be heard by the SADC Tribunal. Unfortunately the case was delayed.  The reason given for the delay was that the fax machine in the office of the President (Mugabe) was broken.  As a result, the tribunal registrar staff faxed the notice to a number that could not be verified.  The case was postponed to the 4th of December 2007 after which it was postponed again to the 11th of December 2007.

 

Mr. Campbell claims that the second postponement by the Tribunal was done with the full knowledge that his council will not be able to lead his case during the week of the 11th of December. The case can be described as a serious test for the rule of law in the SADC region but one cannot help but wonder whether the SADC Tribunal is truly committed to keeping member states in line with the Treaty.  The fact that the case was postponed twice also raises some serious doubts regarding the political will of the tribunal and the Communities commitment to the rule of law in the region.

 

The case is now scheduled for the 11th of December. Only time will tell whether the SADC Tribunal is going to be the champion of justice in the region or just another white elephant.

 

Gerhard Hugo, Junior Researcher, The Regional Programme, ISS Tshwane (Pretoria)