Introduction

On 17^th and 18^th August 2012, the 32^nd Session of the Summit of the Heads of State and Government (“Summit”) of the Southern African Development Community (“SADC”) took place in Maputo, Mozambique. The delegation addressed the issue of the now-suspended SADC Tribunal (“Tribunal”).

Background

The Tribunal was established in 1992 by Article 9 of the SADC Treaty (“Treaty”), and was constituted to ensure adherence to and the proper interpretation of the provisions of the Treaty and subsidiary instruments and to adjudicate upon such disputes as may be referred to it. Individuals had the right to access the Tribunal which also exercised its jurisdiction over disputes relating to the foundational principles of “human rights, democracy and the rule of law.” Controversially, the Tribunal decided three human rights related cases against Zimbabwe, finding the State responsible for various breaches of SADC law. Zimbabwe has refused to enforce these decisions or recognize the Tribunal’s jurisdiction over alleged breaches of human rights.

In 2010, the Summit effectively suspended the work of the Tribunal by ruling that “the Members of the Tribunal shall remain in office pending the Report on the Tribunal from Ministers of Justice/Attorneys General, but shall not entertain new cases until the Extraordinary Summit has decided on the legal status and roles and responsibilities of the Tribunal.” Crucially, the Summit did not renew the tenure of office of several judges whose terms had expired.  The Summit also deferred consideration of Zimbabwe’s non-compliance with the Tribunal’s ruling in the case of Fick and Others v Zimbabwe.

In Fick, the Applicants requested the Tribunal to report to the Summit Zimbabwe’s failure to take appropriate action in respect of two previous rulings concerned with the Mugabe administration’s controversial land reform programme. Similar requests had been made in the case of Mike Campbell (Pvt) Limited and 78 Others v Zimbabwe, following findings by the Tribunal against Zimbabwe in respect of fundamental breaches of human rights.

In the Fick ruling of July 2010, the Tribunal held that Zimbabwe had continued to violate its previous rulings and that there was “abundant evidence before [it] to the effect that the lives, liberty and property of all those whom the decision meant to protect have been endangered.”

In 2011, the Summit extended the suspension of the Tribunal, mandating “the Ministers of Justice/Attorneys General to initiate the process aimed at amending the relevant SADC legal instruments and submit a progress report at the Summit in August 2011 and the final report to Summit in August 2012.” The Summit’s decision further delayed any possible action against Zimbabwe for non-compliance of the Tribunal’s rulings.

The Summit’s 2012 Communiqué

On Saturday, the Summit considered the report of the Committee of Ministers of Justice/Attorneys General (“Committee”) and the observations of the Council of Ministers. In its communiqué of 18 August 2012 (“Communiqué”), the Summit “resolved that a new Tribunal should be negotiated and that its mandate should be confined to interpretation of the SADC Treaty and Protocols relating to disputes between Member States.”

Comment

The Summit’s attitude to the Tribunal is perhaps best illustrated by the consideration it gives to the long-awaited decision: the single paragraph is located on the final page of the document amongst such other SADC issues as the “Regional Indicative Strategic Development Plan” and the “Agreement on Assistance in Tax Matters”. In addition, the fact that impartial observers cannot ascertain the content of the Committee’s report from the SADC website or anywhere else demonstrates that the Summit’s decision is as worrying as it is brief.

Whatever the result of proposed negotiations regarding the new Protocol, it does not appear that the Tribunal’s envisaged jurisdiction will extend to individuals. This development deals a severe blow to the 200 million SADC citizens in the region. Whilst the Tribunal has experienced serious difficulty in enforcing its judgments against Zimbabwe, its existence as an alternative forum, in which individuals can seek to bring SADC Member States to account in respect of breaches of SADC law, which included breaches of human rights, provided applicants with an opportunity to confront and expose the xenophobic system of governance which has typified the Mugabe regime. Even if the situation on the ground has changed little, the Tribunal has at least publicised and legally scrutinized the brutality of ZANU-PF’s land reform programme.

The Summit’s decision does not mention what is to happen to the Tribunal’s outstanding cases. However, it seems improbable that, having intimated that it intends to narrow the jurisdictional remit of the Tribunal, the Summit will be willing to entertain ongoing cases under the new Protocol. By preventing the resolution of all outstanding matters, the decision is set to result in further delay and uncertainty.

Given the opaque nature of the SADC deliberations, it is unlikely that impartial observers will be provided with a full account of the discussions that took place. The removal of individual access to the SADC Tribunal and a restriction upon its jurisdiction to exclude a human rights mandate in the future is a severe blow to the region and the individuals within SADC States who can no longer look to this institution to protect their rights.

By Gillian Higgins and Ben Joyes