SADC summit on Zimbabwe elections; the precedence of “SADC Tribunal” case and the concept of “non-interference”
By Trevor Maisiri
The SADC Tribunal, set up in 1992, then with jurisdiction over inter and
intra member-states litigation, was unceremoniously suspended at the August
2010 SADC summit held in Windhoek, Namibia. The background of this
suspension was Zimbabwe’s objection of the Tribunal’s ruling against the
State, in cases brought before it by its citizens. These rulings involved
incidences where the Zimbabwean State was found in contravention of
conventional human rights provisions of these citizens. The Tribunal had
also functioned as an appeal mechanism, when the Zimbabwean government
failed to comply with certain judgements made by the country’s courts, in
favour of the citizens. In objecting to the rulings of the SADC Tribunal,
Zimbabwe questioned its legality, arguing that the protocol that brought it
into existence had not been ratified by the requisite two thirds membership
of the regional bloc.
Upon the suspension of the Tribunal, the SADC heads of states and
governments commissioned a review process of the court’s mandate and
jurisdiction. Zimbabwe made proposals to reconstitute the Tribunal, without
the mandate and jurisdiction of intervening in cases between member-states
and their citizens. The proposal also implied the Tribunal conforms to the
intergovernmental status of SADC; where the mandate to ‘interfere’ or
intervene in the internal matters of a member-state is proscribed or at
least limited. Successive review processes ensued. In June 2012 SADC justice
ministers and attorney generals recommended to the SADC Council of
Ministers that the original mandate of the Tribunal be reinstated, a
proposal which the Council rejected. After consideration of these review
processes, the SADC heads of state and governments, at the August 2012
summit held in Maputo, unanimously endorsed the decision to re-draw the
Tribunal protocol, limiting its mandate to inter-state litigation issues
only. Beside restrictions on SADC citizens’ access to regional recourse on
legal and human rights matters, the decision was also instructive on SADC’s
“non-interference” concept in the internal issues of member-states.
The SADC Tribunal case has implications on how the regional bloc will
approach the Zimbabwe election crisis at its extraordinary summit in Maputo
on Saturday 15 June 2013. The unanimity by the regional leaders, including
those from countries proclaimed to be champions of human rights and good
governance, in attenuation of the Tribunal’s mandate, is ironical. It
however reveals the collective fear that SADC leaders have in adopting
decisions and mechanisms that empower the regional bloc instruments in
“interfering” in internal matters of their States. The regional leaders are
protective of the state-centric operational nature of SADC and are wary of
creating a precedence that may in future affect and challenge their own
individual positions and foothold on power, in their own countries. So the
leaders will be sensitive to any development that implies or creates the
perception or precedence of SADC’s interference in the internal issues of a
member-state.
President Mugabe has been in SADC long enough to understand the mechanics of
the regional body. In fact he and José Eduardo dos Santos of Angola, remain
the longest serving leaders of the regional bloc. President Mugabe
understands the sensitivities and pressure points of SADC as well as its
“Achilles tendon”. Having realised the political contentions around the
election date in Zimbabwe, among the Global Political Agreement (GPA)
principals, as well as SADC’s push back on early elections without key
reforms; President Mugabe had to come up with an alternative. The
Constitutional court ruling calling for an election date before July 31
became an opportunity for President Mugabe to push for his preferred timing.
The Constitutional court ruling transformed the election date debate from
merely being political to a legal matter. As a legal matter, it would create
complications for the MDC parties to out rightly defy, as they have for long
proclaimed themselves proponents of the “rule of law”. For SADC, the notion
of non-interference in internal affairs of member-states, especially legal
processes, is significant. This is against a background of President Mugabe’s
success in influencing SADC against the “intrusive” mandate of the Tribunal.
The regional leaders will therefore be careful not to disregard the
Constitutional court ruling in Zimbabwe.
In order to ensure that he complicates the possible reversal of the
Constitutional court ruling, even by SADC, President Mugabe made sure he
goes to the 15 June SADC summit with a declared election date. This is why
he did not take the gamble of allowing the parliamentary process to enact
the amendments to the Electoral Act. He would have also faced a further risk
of MDC parliamentarians blocking the passage of the Electoral Act in
defiance of his push for a July 31 election. Backed by a Constitutional
court ruling and with a proclaimed election date in place, President Mugabe
will approach the SADC meeting on a leveraged negotiation position. Any
direct pressure by SADC to force him to climb-down will easily be
interpreted as the regional bloc’s interference with legal processes in a
member-state. Even if President Mugabe decides to consider any shift on the
election date, then that would need an offer of some electoral concessions
to him, as a way of “buying” his climb-down. As to what kind of concessions,
that remains an open question.
SADC also has precedence in Madagascar, which may have motivated President
Mugabe’s move. On 5 June, the electoral court in Madagascar confirmed the
candidacy of three controversial candidates, Lalao Ravalomanana, Rajoelina
and Ratsiraka, who are participating in the election in contravention of a
SADC call to exclude them. The prominence of internal legal processes in
Madagascar, no matter their insolence, over SADC calls, seems to emphasize
the reverence of the non-interference concept in the region. The Madagascar
courts have ruled against a SADC position and SADC has limited options to
influence such internal matters. This Madagascar precedence must have
created contemplations for President Mugabe.
So as the SADC summit approaches on 15 June, there are limitations to
regional leaders’ engagement with the legal processes that have transpired
in Zimbabwe in the last two weeks. These are purely internal legal
processes, which SADC has no appetite or mandate to challenge. The regional
leaders are faced with limited options, key among them being: either seeking
consensus on any possible reforms before an election on 31 July; persuading
President Mugabe to an extended election date through leniency of the
Constitutional court while also offering him certain electoral process
concessions; or persuading the MDC parties to consent to the proclaimed date
even without clarity on processes for pre-election reforms.
What is however clear is: a political matter has now become a legal matter.
Will President Mugabe score another goal past SADC, or has he already done
so?
Trevor Maisiri is a Senior Analyst – Southern Africa at the International
Crisis Group