Most of the world’s attention on current African affairs has recently been focussed on the northern states, such as Egypt, Libya and Tunisia, and expectations of change of one sort or another. Here in southern Africa, meanwhile, change has been occurring – orderly and through ‘proper’ channels, but also menacing to people’s rights – largely unnoticed and unremarked outside the region.
The Southern African Development Community (SADC) comprises 15 countries across the region (including the currently suspended Madagascar). An ‘Extraordinary Summit’ of SADC was held in Windhoek, Namibia, on 20 May. Primary public interest was focussed on the political situations in Madagascar and Zimbabwe, and the status of the regional court, the SADC Tribunal.
Separate revelations of alleged ‘corruption’ at the top of the SADC Secretariat and of staff appeals to the SADC President to undertake a ‘forensic audit’ of the Secretariat only seemed to surface in a recent Namibian newspaper report, but were reportedly also considered at the Summit, given that the staff had quietly approached the SADC President (Namibia’s President Pohamba) four weeks earlier. That media report cited staff as alleging that SADC had “become an institution of money laundering, they create illegal contracts, they are always travelling abroad, there is no transparency and accountability, and they lie to the Council [of Ministers]”.
On Madagascar and Zimbabwe, the SADC chairperson had announced that the organization would ‘consider reports’ on ‘ongoing mediation efforts’. This sounds like code for comparative inaction but probably also results from political difficulties in agreeing to action in the Summit’s absence of South African President Zuma due to municipal elections in South Africa that week. The Summit’s final Communiqué in fact made no reference to Zimbabwe, or to any action on claims of senior SADC officials’ corruption. On Madagascar, it noted “the development of the roadmap for returning that country to constitutional normalcy” and decided to hold a meeting at SADC HQ in Botswana between Malagasy ‘stakeholders’ (a far weaker action than what had been recommended). An initial such meeting was held in Gabarone, Botswana, over two days last week (6-7 June).
It is the status of the regional Tribunal that is, however, of most concern. The Tribunal was established in 2005 by SADC as the southern Africa regional court and started accepting cases in 2007. The Tribunal has demonstrated itself to be an independent entity, with decision-making that takes due account of relevant international and continental law, especially in the area of human rights. (This was emphasised to me by the Tribunal’s Registrar when I met with him in 2008, and has been evidenced by its decisions.) It is empowered to interpret the SADC Treaty and Protocols and to develop its own jurisprudence including in accordance with international law. It is viewed as a key regional level court within the African-wide judicial framework that is presently under reform via the African Union with regard to human rights.
The political problem for the Tribunal arose because several of its early judgments concerned cases brought by white Zimbabwean farmers removed from their lands. The Tribunal had made a number of rulings – starting with its first decision in 2007 – on the illegality of such actions by the Zimbabwean government that, in response, challenged the legitimacy of the Tribunal and announced that it would not accept the validity of those decisions. Needless to say, the successful claimants have been unable to have the Tribunal’s decision enforced (the primary claimant recently died). Subsequent Tribunal rulings on similar cases imposed orders for costs on the government, also to no effect.
Zimbabwe’s post hoc argument was that, as the protocol establishing the Tribunal had never received the necessary two-thirds ratification by SADC states, it accordingly lacked legitimacy. More crucially, it argued that, as the national constitution was the ‘supreme law’, the Government could not accept a regional decision that didn’t adhere to its own constitutional provisions. The Zimbabwe High Court generally agreed, although it did conclude that the Tribunal was properly constituted and had jurisdiction in the case of the Zimbabwean farmers, but that registering the Tribunal’s decision would unacceptably challenge Zimbabwean court authority that had already validated the land reform program that was under challenge outside its domestic jurisdiction.
Zimbabwe succeeded in August 2010 in having SADC resolve to initiate a review of the Tribunal’s roles and responsibilities, in place of a move that SADC Heads of State censure Zimbabwe for repudiating the Tribunal’s rulings. SADC then commissioned an independent report from the World Trade Institute, carried out by Dr Lorand Bartels, Cambridge law lecturer (and lawyer of the NSW Supreme Court), which was finalized in March 2011.
That report has been received by SADC but has not been released. According to a media report, SADC’s executive secretary told journalists that “neither the media nor SADC citizens really needed to know what was in the report”. The report is understood to have upheld the correctness and validity of the Tribunal’s decision-making. It apparently recommended that SADC revise regional instruments to place SADC law over the domestic laws of member states, and to strengthen the Tribunal’s powers of enforcement and penalty.
Instead, the Summit Communiqué effectively extended the Tribunal’s suspension as per its August 2010 decision – including prohibiting it from hearing any cases or accepting new cases – and called on its member states’ justice ministers to jointly submit, in August 2012, a final report on any amendments to SADC provisions. It resolved that the Tribunal neither reappoint nor replace members whose terms of office expire.
This all augurs badly for the regional justice system of southern Africa. It is regrettable within the context of recent progress in regional application of international human rights law via an independent collective states’ system of review and more consistent decision-making equally accessible to states and their citizens. The motivation for challenging the Tribunal’s demonstrably sound decision-making is thus that it found that one particular state’s political domestic policy and enabling laws contravened regional and international law.
The consequence of this decision by southern African leaders is potentially to at least deny their citizens access to such a regional judicial review process incorporating international law, in the potential event that amendments adopted in 2012 include confining cases to matters between member states (again, here).
The consequences mayalso extend to private investors, who would similarly be denied access to the Tribunal if it was confined to matters between member states. This is especially so given parallel moves in various southern African states to reform mining policy in terms of public-private arrangements (for Namibia, for example, see my recent piece in Crikey here). Foreign investors have had some degree of certainty about the legal framework set down within SADC instruments. One current claimant in a Tribunal case concerning the cancellation of mining leases in Lesotho is reported as saying that moves to neuter the Tribunal are aimed at averting substantial claims against those states that violate international laws (see van Zyl’s comments here).
The Zimbabwean government is determined to survive such repudiation from ‘within’ at some likely cost to regional judicial independence and integrity. This issue wouldn’t particularly bother it if the origins of the findings of illegality were external to the region, and Zimbabwe likely sees the Tribunal’s actions as a breach of regional solidarity that demands a political solution.
In turn, SADC member governments are evidently ready to place political solidarity with President Mugabe as such an important figure in independence struggles of the ‘60s, ‘70s and ‘80s over and above regional rule of law that has evolved as a direct consequence of those struggles. Local human rights and law reform civil society organisations are, understandably, shocked and calling for more responsible political leadership across the region.
A potential way forward is that of other domestic jurisdictions within the region, as evidenced by a decision last week (Monday, 6 June) by the South African High Court.
In a notable decision (a report is here), the South African High Court has ruled in favour of three of the white Zimbabwean farmers (including the recently deceased original litigant) who received that original favourable judgement from the SADC Tribunal but no satisfaction from the Mugabe government. The South African ruling concerned the actions by those farmers in seizing several Zimbabwean government-owned South African properties that were no longer being used for diplomatic purposes.
The South African court repudiated Zimbabwean government arguments that the SADC Tribunal decision had no force and that the South African properties were subject to international immunity. The South African lawyer acting for the farmers has stated the significance of the past week’s ruling as follows:
“The ruling is of historic significance. For probably the first time in international legal history, a court ruled that the assets of a country guilty of human rights violations must be sold at public auction. Arrangements will be made without delay to have the properties sold.”
It is not yet clear what response the Zimbabwean government will take. It may appeal the decision as, in South Africa, the High Court is not the highest court. Subsequently and ironically, it could appeal to the SADC Tribunal, whether or not it is suitably ‘reformed’. More important is the question of how this might influence President Zuma’s stance stance within SADC on the Tribunal in its inevitable debate about the rule of law versus political ‘solidarity’.
It is momentous that the South African court system has upheld the applicability – and enforceability within other SADC member states – of Tribunal decisions. Roll on the next SADC assembly, with President Zuma’s active presence in, hopefully, defending the integrity of the South African judiciary and regional rule of law.
Earlier this week on Tasmanian Times: A Cry from the Heart: Zimbabwe
Earlier by Robert Johnson on Tasmanian Times: The Truth About Gaza, HERE
