SADC judges slam illegal closure of Tribunal
By Alex Bell
24 June 2011
The top legal minds from the Southern African Development Community (SADC)
have all demanded compensation over the closure of the region’s human rights
Tribunal, a move the judges have said was ‘illegal’.
In the strongest criticism yet of the shock move by SADC leaders in May,
four former Tribunal Judges have written a scathing letter to the regional
bloc, blasting its decision to suspend the court. The Judges, drawn from
across the region to head up the Tribunal, have all effectively been forced
out of their positions by SADC’s unprecedented decision to close the court.
The four judges, whose five-year term expired in August 2010, had remained
in office, despite SADC last year deciding to review the role of the court.
This was the result of SADC’s apparent unwillingness to hold Zimbabwe to
account for refusing to honour the Tribunal’s 2008 rulings that Robert
Mugabe’s land grab was unlawful. A review was ordered instead, but the
Judges said they stayed put, due to the “legitimate and reasonable
expectation that, at the end of the initial independent review commissioned
by the SADC Heads of State, their terms of office would be renewed.”
This expectation was then justified when that independent review confirmed
that the Tribunal was properly established, and that its rulings had
jurisdiction across the region, and that its protocol was in accordance with
international law.
But instead of upholding the review findings, a SADC Summit in May took the
decision to dissolve the Tribunal for a further 12 months, dealing a
devastating blow to the rule of law in the region. The move has been
described as ‘regressive’ because it denies individual people access to
justice when they have no legal recourse in their own countries.
The four judges seeking compensation are Justice Ariranga G Pillay
(Mauritius) former president and member; Justice Rigoberto Kambovo (Angola)
former member; Justice Onkemetse B Tshosa (Botswana) former member; and
Justice Frederick Chomba (Zambia) former member.
Their letter reads; “We consider, therefore, that Council and Summit should
face up to the consequences of their action in the circumstances and pay
fair and adequate compensation for the prejudice, both material and moral,
caused to the President and members of the Tribunal whose term of office was
not renewed.”
In their letter they say the decision to dissolve the court is “clearly
illegal and ultra vires (invalid) because the Summit has no power to
restrict the jurisdiction of the Tribunal, not the least because it is
itself subject to the Tribunal’s jurisdiction.”
The judges also questioned why the SADC council of Justice Ministers
expressed concern about the role and jurisdiction of the Tribunal, instead
of deciding the appropriate action to take against Zimbabwe for
non-compliance of the Tribunal’s judgments.
“We did not expect or foresee…the new drastic action taken on political
grounds which at a stroke does away with the intractable problem of taking
action against Zimbabwe,” the letter reads.
The judges add; “So this extraordinary deed was done at the expense of the
Tribunal and its judges who are both easily expendable, in breach of the
principles of human rights, democracy and the rule of law.”
The SADC Tribunal Rights Watch group has since endorsed the judges’
statement, echoing their concerns that the move sends “the worst possible
signal not only to the SADC region but also to potential investors, donors
and the international community at large: that the highest authorities of
SADC at best pay only lip service to the principles of human rights,
democracy and the rule of law and do not scrupulously adhere to them.”