Not So Much A Surprise That The Sadc Tribunal Was Disbanded But That It Was Formed At All
http://www.southernafricalitigationcentre.org
11 March, 2013
Nicole Fritz
On Friday, 1 March, Judge Ariranga Pillay, former Judge President of the
SADC Tribunal, Professor Laurie Nathan of the Centre for Mediation in Africa
at the University of Pretoria and I participated in a discussion hosted by
the University of Pretoria’s Department of Political Science and the South
African Foreign Policy Initiative (SAFPI), titled: The SADC Tribunal:
Removing the Scales of Justice.
It was a wide ranging discussion but I was most intrigued, and thought least
susceptible to any ready answer, those sections of the discussion which set
law firmly in opposition to political dynamics. Professor Nathan made the
interesting observation that given the unsettled nature of sovereignty
within the region, that it has so recently been won, that it is an as yet
uncompleted project, that southern African states enjoyed de jure as opposed
to de facto sovereignty, and that there were no common norms and standards
as between them, the real surprise wasn’t so much that the SADC Tribunal was
disbanded but that it had ever been established at all.
I speculated, I recognise a little moot and academic at this point, that had
the Tribunal refused on some procedural basis – i.e. on standing or
admissibility requirements — to hear the highly contentious issue of
Zimbabwe’s land reform process as one of its very first cases, it might have
lived to see another day. Had it had some relatively uncontentious cases
under its belt — some prisoners’ rights, or fair trial rights judgements
delivered — and had it managed to secure some state compliance with these
rulings, before it tackled the land reform cases, it would have made it more
difficult for the SADC Summit simply to dismantle the court.
I fear I may not necessarily be doing justice to Judge Pillay’s response,
but my recollection of his response is that he believed that as a judge, his
province is the law and he is not required nor indeed capacitated to look
beyond that realm. I think that response would strike most jurists as an
entirely appropriate, probably the only appropriate, response — that judges
cannot and should not be required to calculate the political consequences of
their rulings, that in any event in many cases these will be entirely
unknowable.
Still, why I know the combination of savvy political strategist and wise
jurist is probably hard to come by, indeed that combination may cancel
itself out (and how exactly would you assess for such combination in any
appointment process?), newly established, fragile regional and international
courts especially, dependant on states’ voluntary support, require some
combination of that skill-set. And not only of their judges. Think of how
the ICC might have avoided some of the more debilitating fracas it has found
itself engaged in had Prosecutor Moreno Ocampo made some smarter political
choices.
Accommodation of political realities, however, forces some pretty hideous
conclusions. I recognise the correctness of Professor Nathan’s observations
regarding sovereignty in the region and the absence of shared norms and
values, but as inhabitants of this region are we really to have to settle
with the conclusion that supranational institutions offering protection of
our human rights where domestic processes fail are not going to be available
to us but may perhaps avail generations to come. . .