Thought leader and MD: Development Advisory and Impact for Bigen, Dr Mthandazo Ngwenya, explores the true meaning of the SADC Tribunal in the region.

The reinstatement of the SADC Tribunal is a fundamental human rights issue that requires SADC citizens to engage their governments for its immediate reinstatement.

What happened where and when to the SADC Tribunal

The Protocol on the Tribunal and Rules Thereof of 2000 (the protocol) was signed on 7 August 2000 at the ordinary summit of SADC heads of state in Windhoek, Namibia. The protocol was signed by all presidents of SADC except the DRC president. Article 3(1) of the protocol requires that ten members be appointed from top jurists in member states qualified to hold the highest judicial offices in their countries. It was five years after signing of the protocol, on 18 November 2005, that the ten judges as required by article 4 (4) of the protocol were finally appointed by the 25th SADC Summit in Gaborone, Botswana. Windhoek was chosen as the seat of the court and, from 2005 to 2010, the court functioned optimally, hearing a broad range of cases affecting SADC member states and citizens.

Article 14 of the protocol states that the tribunal ‘shall’ have jurisdiction over all disputes and ‘all’ applications referred to it in accordance with the SADC treaty and the protocol as it relates to:

1. Interpretations and applications of the treaty;
2. Interpretations, application or validity of the protocols, all subsidiary instruments and
acts of the institutions of SADC; and
3. In areas where states concluded agreements and wherein the tribunal is conferred
jurisdiction.

A review of Article 14, basis for jurisdiction of the tribunal, demonstrates that it was created with a primary focus on interstate disputes. A fundamental development in keeping with Thought leader and MD: Development Advisory and Impact for Bigen, Dr Mthandazo Ngwenya, explores the true meaning of the SADC Tribunal in the region. international norms is found in Article 15 on the specific Scope of the Tribunal. The tribunal’s scope is as follows:
1. Disputes amongst state parties;
2. Disputes between natural or legal persons and states, wherein the natural or legal
party must demonstrate exhaustion of all local remedies or demonstrate an inherent
inability to proceed with litigation or secure remedies under domestic law of the
member state; and
3. Where a dispute has been referred to the tribunal by any party, the consent of the other
parties is not required.

The scope of the tribunal, particularly 15(1) and 15(2), represents an acknowledgement of international law within the SADC community providing individuals and corporate entities with a legal avenue to resolve disputes with state parties. This is an important guarantee that, when a violation or breach occurs, the SADC citizen can access the tribunal to adjudicate after exhausting available domestic remedies. SADC history is littered with violence, discrimination and various abuses of citizens at the hands of their governments. The ability to escalate these
disputes to a regional court is an important tool to secure human rights.

Of equal importance is the conferment of rights of recourse for local and international investors who have disputes with SADC host governments to take such disputes to the regional court. It is common knowledge that many courts in SADC are dysfunctional when it comes to resolution of disputes where the government is the defendant and more so when it involves promotion and protection of human rights. The courts either take years to adjudicate, proving true the adage ‘justice delayed is justice denied’, or the judges are afraid to rule against the government or have no obvious local remedies to address injustices or breaches of contract. Observance of the rule of law is in its infancy and varies significantly amongst the countries. A functional SADC tribunal is therefore an important tool that investors can access to seek relief when local remedies fail to unlock the dispute.

It therefore came as a shock to many when, in August 2012, the SADC heads of state and government summit in Maputo, Mozambique decided to suspend the tribunal in spite of outcomes emanating from the 2010 review order. In an article published on 11 August 2011 by Human Rights Watch, titled SADC: Q&A on the tribunal – future of the regional court hangs in the balance, the following events were recorded:

1. In 2008 the tribunal took on one of its first human rights cases and ruled against the government of Zimbabwe in a case were the plaintiffs were white land owners seeking to prevent acquisition of their farms.
2. The court ruled in favour of the plaintiffs and the defendant refused to enforce the court’s judgement.
3. Instead of taking action against the defendant for violation of the protocol and SADC treaty, the 13th SADC Summit held in Namibia ordered a full review of the tribunals role, functions and terms of reference.
4.  The summit ordered the tribunal to not take on any more cases and refused to reappoint judges who were eligible for reappointment.

Consultants from the World Trade Institute Advisors (WTIA) were appointed to undertake the review and their input was taken into account by the SADC Committee of Ministers of Justice that dismissed the defendant’s contentions that the tribunal was not properly constituted and recommended the reappointment of the tribunal judges. So the 2012 decision to suspend the tribunal altogether by the heads of state and governments was met with scepticism and much distrust.

A system of international courts and tribunals

A system of international courts and tribunals operates across Africa and other regions of the world, administering international treaties, resolving interstate disputes and disputes between natural persons and state parties. The growing significance of public international law, spurred
by recent expansion of international human rights, has seen a significant increase in the case load of these international courts and tribunals. The Court of Justice of the European Union, The European Court of Human Rights, The United Nations International Court of Justice or World Court, The World Trade Organisation’s Appellate Body and The African Court of Justice and Human Rights are some examples of the increasing number of international courts and tribunals. Thousands of cases are filed each year by EU citizens against their governments at the European Court of Human Rights, alleging human rights violations.

As a foundational principle, international law traditionally applied only to states and, as such, international courts only served to resolve disputes amongst states based on treaty law. Most governments have been unwilling to allow international courts to extend their jurisdiction to local jurisprudence. Many governments see disputes with their citizens as a domestic matter that can only be resolved by local courts. As a result, it has been difficult for private citizens to access ‘outside’ help when they felt aggrieved by the actions of their governments.

International human rights expansionary nature
Over the past few decades, the premise that human rights are a local matter of which the state has full and final purview has been challenged by the growth of importance in international human rights. Many abuses of rights have been perpetrated against citizens by their own governments and international law has increasingly taken account of the fact that private citizens are rendered helpless when confronted with human rights violations by their own government.

The promotion and protection of human rights is an international obligation enjoining all nations of the world. This is encapsulated in the Universal Declaration of Human Rights and in the African Charter, to name two. The protection of international human rights is the reason that the United Nations Human Rights Council was created on 15 March 2006. A further expansion in the protection of rights has been a realisation that property rights of private citizens are important to their human rights. For example, arbitrary or discriminatory expropriation by a government of a house, dwelling or farm from a private citizen used as their primary residence is tantamount to a denial of dignity and livelihood and breaches that private individual’s human rights.

The African human rights story and its impacts on foreign direct investment
In my previous article, The Africa continental free trade area protocol on investment: a prickly pear for SADC and other regional economic communities, published in the Financial Mail, Mining Weekly and Engineering News in June 2020, I covered the challenges of protection of private investors. Africa has great ambitions to unite and form a single customs union, a common monetary policy, free trade areas and a single passport which will facilitate free movement of goods and people. These are critical building blocks for the future of the African human rights story and its impacts on foreign direct investment In my previous article, The Africa continental free trade area protocol on investment: a
prickly pear for SADC and other regional economic communities, published in the Financial Mail, Mining Weekly and Engineering News in June 2020, I covered the challenges of protection of private investors.

Africa has great ambitions to unite and form a single customs union, a common monetary policy, free trade areas and a single passport which will facilitate free movement of goods and people. These are critical building blocks for the future of the continent. The Africa Court of Justice and Human Rights is central to the success of this grand
design. The type of judicial system that must apply to investors should be really simple to comprehend:

1. A state party will admit an investment into its jurisdiction using its local laws that will
be updated to align with continentally agreed processes.
2. The state will regulate such investment in line with its laws and investors can access
the local courts and seek remedies.
3. Should a dispute become frustrated or deadlocked in local courts, the investor can
approach a regional court like the SADC Tribunal.
4. Should that fail, the plaintiff can approach the African Court of Justice for relief.
5. Matters related to human rights can receive direct access to the continental courts.

By suspending the SADC Tribunal in 2012, the SADC states altered a fundamental design pillar and eliminated protections for private individuals and investors.

Where to from here?
So aggrieved were civil society organisations and human rights lawyers by the SADC decision of 2012 that court papers were filed in various African countries, which included the African Court of Human and People’s Rights challenging the legitimacy of the decision. See Law
Society of South Africa and Others v President of the Republic of South Africa and others [2018] ZACC 51, also the High Court of Tanzania decision of 4 June 2019 in the matter Tanganyika Law Society v Minister of Foreign Affairs and International Cooperation of the United Republic of Tanzania and the Attorney General of the United Republic of Tanzania.

The Constitutional Court of South Africa ruled that the decision by former President Jacob Zuma to sign on behalf of South Africa on a SADC decision suspending the tribunal was unconstitutional, irrational and unlawful. This amounted to denial of justice and human rights protections and the court ordered that the president must withdraw South Africa’s signature. The high court in Tanzania also ruled in a similar vein against the actions of the Tanzanian government.

In a bold move, President Cyril Ramaphosa withdraw South Africa’s signature from the 2012 decision at the SADC summit in Dar es Salaam in August 2019. This has renewed calls for SADC citizens to mobilise and challenge their governments and demand the full reinstatement of the tribunal. Time will tell, but the steps taken by the South African government are extremely positive, as the SADC continues to suffer a legitimacy crisis while the tribunal remains suspended.

Dr Mthandazo Ngwenya
MD : Development Advisory and Impact
Bigen Group
August 2020


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