South Africa questions SADC’s legal reach
By Alex Bell
03 August 2010
Concern is being raised over the South African government’s intention to
seek a legal opinion on the legal reach of the Southern African Development
Community (SADC), over Zimbabwe’s refusal to honour the SADC Treaty.
The SADC Tribunal in 2008 ordered the Zimbabwean government to compensate
farmers for the farms that were seized and to protect the farmers’ rights to
their land. Those orders have all been ignored in Zimbabwe and the Tribunal
has since ruled the government as being in contempt, three times.
But in Zimbabwe the Tribunal has been openly snubbed by the government, with
Robert Mugabe and Justice Minister Patrick Chinamasa declaring that the
Tribunal’s rulings were null and void. A shock High Court decision then
followed this year with Justice Bharat Patel ruling that the Tribunal’s
orders on land reform have no authority in Zimbabwe.
South African courts on the other hand have become the first regional
country to enforce a SADC ruling against another member state in their own
territory. The High Court ruled earlier this year ruled in favour of farmers
who were meant to be protected by the SADC Tribunal ruling. As a result of
this High Court decision, a number of Zimbabwean government assets were
identified for possible auction, to compensate farmers’ costs.
But it now seems that the South African government could stand in the way of
this, after Justice and Constitutional Development Minister Jeff Radebe on
Monday questioned SADC’s legal reach. The MP has requested a legal opinion
on the reach of the SADC Treaty and its related institutions, in light of
Zimbabwe choosing to ignore the Tribunal’s rulings. He also wants
clarification on the enforceability of those rulings in both Zimbabwe and
South Africa, already mandated under international law.
Concern has been raised by South Africa’s main political opposition, the
Democratic Alliance (DA). The party’s Member of the SADC Parliamentary
Forum, Dr Wilmot James, has demanded answers from Radebe this week.
“We must ask what his underlying motives are. Is he trying to trump the SADC
Tribunal and both domestic courts? Why does he wish to reassess the
Tribunal’s powers? Is he aware of the fact that if South Africa is party to
such a move, there will be an international legal uproar?” James told SW
Radio Africa on Tuesday.
In a parliamentary question to Minister Radebe, James asked whether the SADC
Justice Ministers had considered the ongoing failure of the government of
Zimbabwe to comply with the judgment and orders of the Tribunal and the
refusal of Zimbabwe’s High Court to register the Tribunal’s rulings. He also
questioned finally, whether SADC Justice Ministers would bring the issue to
the SADC Heads of State.
James told SW Radio Africa that there should be no question that rulings by
the legal arm of SADC should be observed, explaining there are “critical
consequences if role of the Tribunal is brought into question.” He said that
the Tribunal was the “most credible part of SADC” saying: “What’s at stake
is any progress this institution can make for regional human rights and
respect for the rule of law.”
“The more Southern Africa descends into a state of misgovernance, the easier
it is for despots like Robert Mugabe to get away with tyranny,” James said.