The final communiqué from the summit said that the heads of state, after receiving a report from the Committee of Ministers of Justice and Attorneys-General, decided that a new Protocol on the Tribunal should be negotiated.
Furthermore, the mandate of the new Tribunal “should be confined to interpretation of the SADC Treaty and Protocols relating to disputes between member states”.
This is very different from the jurisdiction of the original SADC tribunal, which was suspended in 2010. That Tribunal could hear and decide upon cases brought by individual citizens of SADC states who considered that they had been denied justice in their home countries.
Yet the door may not have been slammed shut. At his press conference at the end of the summit, the new SADC chairperson, Mozambican President Armando Guebuza, gave the impression that the matter is still under discussion.
He said that the summit had decided to look at the question of the Tribunal “in greater depth”, and that the issue is “not closed”.
Certainly Mozambican Justice Minister, Benvinda Levy, gave every impression of wanting a speedy revival of the Tribunal and with a wide-ranging jurisdiction. When she opened the meeting of the SADC Justice Ministers on 8 August, she warned that any further delay in resuming the activities of the Tribunal would cause serious damage to the reputation of SADC.
She stressed that it was Mozambique’s desire to do everything possible to conclude revision of the Tribunal’s statutes and ensure that the amendments satisfy the wishes of the member states, “but without neglecting the interests of the citizens for whom we exist, and whom we were elected to serve”.
Levy described the Tribunal as “an essential institution to ensure that the values and principles which guide our organisation, particularly those concerning good governance, democracy and human rights, are fully achieved”.
The Tribunal was suspended in 2010, after the Zimbabwean government of Robert Mugabe refused to implement a Tribunal ruling that found parts of the “fast track” land reform were illegal. The Tribunal found that several Zimbabwean white commercial farmers, led by Mike Campbell, had been deprived of their land “without having had the right of access to the courts and he right to a fair hearing, which are essential elements of the rule of law”. It ordered the Zimbabwean government to compensate them.
The SADC treaty states that Tribunal rulings are “final and binding”. So when the Zimbabwean government overruled the Tribunal, and Mugabe himself described the Tribunal’s decisions as “nonsense” and “of no consequence”, the Tribunal found that the government was in contempt of court.
But instead of obliging the Zimbabwean government to implement the court ruling, the SADC heads of state, in 2010, suspended the Tribunal.
At the Justice Ministers’ meeting, Zimbabwe seemed to be in a minority of one. The spokesperson for the meeting, Pedro Nhatitima (who is head of the Mozambican Legal Aid Institute, IPAJ), told reporters that the great majority of SADC member states “recognise the need to revive the Tribunal as soon as possible”.
Crucially, they also recognised that the Tribunal “has legal existence” – that is, that it was properly constituted and had legitimate jurisdiction, the very point that Zimbabwe had questioned in 2010.
SADC civil society organisation waged a vigorous campaign for the reinstatement of the Tribunal. Among the campaign supporters was South African Anglican Archbishop and Nobel peace prize laureate Desmond Tutu who declared “Southern Africa was building a house of justice – a place where crimes could not go unpunished and victims of injustice and human rights abuses could turn with confidence – but that house is now in grave danger.”
He warned that, without the SADC Tribunal, ”the region will lose a vital ally of its citizens, its investors and its future.”
“As an African, I am sad that we should give this image of ourselves that we are basically not in favour of the rule of law,” said Tutu. “It is up to all of us to ensure that SADC not only reinstates the Tribunal but also strengthens it.”
Post published in: News