SADC Tribunal Petition
Freedom House and 17 other civil society organizations operating in southern Africa have petitioned SADC Heads of State and Government to express concern over a protocol for a new inter-state tribunal. After disbanding the SADC Tribunal in 2012 without consultation of critical stakeholders, the SADC has proposed a new tribunal but would bar citizens from accessing the court.
THE SADC Lawyers' Association
18th August, 2014
SADC Heads of State and Government
C/o His Excellency, Comrade Robert Gabriel Mugabe
President of the Republic of Zimbabwe and Chairperson of the Southern African Development Community (SADC)
RE: Concerning the New Southern African Development Community Tribunal
We, the undersigned organizations, express our deep concern over the dissolution of the Southern African Development Community (SADC) Tribunal and the non-consultative approach that was employed to draft and adopt a new Protocol on the Tribunal, whose mandate is now confined to the interpretation of the SADC Treaty and Protocols relating to disputes between Member States and bars SADC citizens from accessing the court.
Your Excellencies will recall that the SADC Tribunal (Tribunal) was established in 1992 in terms of Article 9 of the SADC Treaty as one of the eight institutions of SADC to ensure adherence to and the proper interpretation of the provisions of the SADC Treaty and subsidiary instruments and to adjudicate upon such disputes as may be referred to it. More importantly, the rationale for establishing the Tribunal was to strengthen democratic governance, human rights, the rule of law and adherence to the principles of separation of powers within the region.
The introduction of the Tribunal, therefore, promised the consolidation of the rule of law within the SADC region and enhanced access to justice for SADC citizens. However, a series of unfortunate decisions followed from a Tribunal judgment rendered against the Government of Zimbabwe in Mike Campbell (Pvt) Ltd and 79 others vs. the Republic of Zimbabwe, thus:
- The 30th SADC Summit of Heads of State and Government (“SADC Summit”) in Windhoek took the unprecedented decision to suspend the SADC Tribunal pending a review of its role, responsibilities and terms of reference by an independent consultant; and
- Then the 32nd SADC Summit in Maputo resolved that a new Protocol on the 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.
Your Excellencies, these resolutions were made without the consultation of critical stakeholders, including civil society, whom the SADC Heads of State and Government represent. To be sure, these decisions represent a major regression from what our region has collectively strove for since the collective struggle for liberation from the colonialist system and its legacy. To be exact, these decisions:
- deny access to the court by, and access to justice for, people in the SADC region;
- derogate from internationally recognized tenets on independence of the judiciary and the doctrine of separation of powers;
- derogate from basic tenets of human rights and the rule of law as enshrined in the SADC Treaty; and
- are an antithesis of both the Strategic Indicative Plan for the Organ on Politics, Defence and Security (SIPO) and the progressive vision contemplated by the SADC Treaty.
While we commend the progressive resolutions adopted by the 34th SADC Summit of Heads of State and Government, the undersigned appeal to Your Excellencies to reaffirm the commitments in the SADC Treaty as regards building regional peace and development, through the promotion, respect and preservation of human rights, the rule of law and good governance. In this regard, we strongly recommend that:
- The SADC Heads of State and Government not ratify the Protocol on the Tribunal, which bars access by individuals;
- The SADC Heads of State and Government collectively reinstate the SADC Tribunal according to its original mandate and to allow access by citizens; and
- The SADC Heads of State and Government ensure that SADC persons are consulted in all decision-making processes.
SADC Lawyers’ Association
African Centre for Justice Innovation
Pan African Lawyers Union
SADC Council of Non-Governmental Organisations
Law Society of South Africa
Tanganyika Law Society
Human Rights Institute of South Africa
Freedom House Southern Africa
Malawi Law Society
Black Lawyers Association (South Africa)
Law Society of Botswana
Law Society of Namibia
Centre for the Development of People (Malawi)
Cape Law Society (South Africa)
Law Association of Zambia
Zimbabwe Lawyers for Human Rights
International Commission of Jurists
Southern Africa Litigation Centre
on behalf of the above-listed organizations
H.E. Dr Stergomena Lawrence Tax
SADC Executive Secretary