South African Development Community Tribunal to Lose its Human Rights Mandate

At the close of the Southern African Development Community (SADC) Summit held in August, 2012 in Maputo, Mozambique, SADC issued a final meeting communiqué. While much of the communiqué was unremarkable, tucked away towards the end was a short paragraph stating:

…a new Protocol on the [SADC] 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.

Following SADC’s suspension of the Tribunal in 2010, this communiqué now signals a decision,  strongly criticized by lawyers and human rights organizations, to strip the Tribunal of its mandate to hear human rights cases brought by individuals.  Civil society actors and national ministers of justice have urged SADC leaders to restore the Tribunal to its original functions.

The Tribunal’s Record of Defending Human Rights

credit: Servaas van den Bosch/IPS

The SADC Tribunal was established in 1992 by Article 9 of the SADC Treaty, which governs the fourteen States that make up SADC, but did not become operational until 2005 when its first judges were sworn-in.  In its short history, the Tribunal has issued several important decisions holding governments accountable for committing human rights violations against their citizens.  Although cases have been brought against several Member States, a significant portion of the cases heard by the Tribunal have been against Zimbabwe.

Several cases involved the property rights of Zimbabwean citizens. In SADC (T), Luke Tembani vs. Republic of Zimbabwe, Case No. 07/2008, the Tribunal held that a statutory provision granting the Zimbabwe Land Bank the power to determine the amount owed on a parcel of land and certify the amount owed as a judgment debt without going through the courts violated Zimbabwe’s obligations under the SADC Treaty to act in accordance with “human rights, democracy and the rule of law” (Art. 4(c)) and not discriminate on the basis of race (Art. 6(2)). See also Speech by Jeremy Gauntlett SC to the Middle Temple South Africa Conference.

Also in SADC (T), Campbell v. Republic of Zimbabwe, Case No. 2/2007, the Tribunal held that the Government of Zimbabwe violated the rights of individual landowners through a controversial program of property seizures. The case concerned a 2005 Amendment to the Property Clause of Zimbabwe’s Constitution that authorized the government to effectively seize private land by ministerial decree.  An ouster clause contained in the same provision also prevented judicial review of the seizures.  Relying on this constitutional amendment, the government seized the land of  seventy-eight commercial farmers. During the Tribunal proceedings, the Government of Zimbabwe sought multiple postponements and ultimately withdrew its representatives from the case. Moreover, in at least one instance, the government was accused of severely beating and torturing a farmer and his family while his case was pending before the Tribunal.

Despite Zimbabwe’s withdrawal, the Tribunal found Zimbabwe liable and awarded damages to the landowners. The Tribunal held that the measures used to seize the land without affording the private landowners access to the courts or just compensation were arbitrary. Additionally, the Tribunal found that the measures were discriminatory in practice, as land was only taken from white landowners and the seized lands were not subsequently “distributed to poor, landless and other disadvantaged and marginalized individuals or groups” but instead only benefited a particular class of political elites, which rendered the claimed purpose of the land redistribution illegitimate.

Following the Tribunal’s decision and pursuant to the Tribunal’s Protocol, which provides for its judgments to be executable in the national courts of SADC members, the farmers applied for the registration of their award in Zimbabwe. Their application for registration was rejected when the Zimbabwean courts held that registering the judgment would be contrary to public policy as it would contradict that court’s previous authorization of the very constitutional amendment reviewed by the SADC Tribunal.

Challenges to the Tribunal’s Authority

Upset by the rulings issued against it, Zimbabwe – along with several other Southern African countries – accused the SADC Tribunal of interfering with State sovereignty. In addition to Zimbabwe’s claim that the Tribunal’s decisions contradicted domestic law, Zimbabwe also challenged the Tribunal’s jurisdiction under Article 16(2) of the SADC Treaty, which states that “the composition, powers, functions, procedures and other related matters governing the Tribunal shall be prescribed in a protocol.”

Zimbabwe argued that because it never ratified the Protocol, the Tribunal has no jurisdiction over it. However, the Tribunal noted in its decision of the Campbell case that “[t]he Tribunal is one of the institutions of the organization which are established under Article 9 of the Treaty. The functions of the Tribunal are stated in Article 16.” After also examining the legal ground for it to hear individual complaints of human rights violations, the Tribunal concluded that Zimbabwe, as a party to the SADC Treaty, was within the Tribunal’s jurisdiction. The validity of Zimbabwe’s claims also have been thoroughly discredited by an independent legal committee commissioned by SADC to review the Tribunal’s jurisdiction.

Rather than comply with the rulings and subsequent contempt of court holdings against it, the Government of Zimbabwe instead lead a political campaign to “reform” the mandate of the Tribunal. Zimbabwe was not the only country critical of the Tribunal.  The Presidents of Tanzania and Botswana also voiced their opposition to the Tribunal prior to the Summit. In seeking to understand the opposition to the Tribunal, commentators have noted that the potential case for Botswana’s treatment of the San people coming before the Tribunal could have affected the country’s view of the Tribunal’s jurisdiction.

Eighteen months ago, following this State-led campaign, the Tribunal was suspended and an independent committee was commissioned to evaluate the Tribunals’ jurisdiction.  The committee confirmed the legality of the Tribunal’s human rights jurisdiction and further emphasized the importance of preserving individuals’ access. Ignoring these committee findings and recommendations, the Summit instead voted to negotiate a new Protocol and mandate under which the Tribunal will no longer be competent to hear individual cases.

Human rights advocates have widely disparaged the SADC decision, which has been characterized as unlawful. Archbishop Desmond Tutu called the development “a tragedy,” while the Open Society Initiative for Southern Africa (OSISA) said the decision “undermin[es] human rights and the rule of law across the region.” Organizations such as OSISA have expressed concern that the dismantling of the current Tribunal will leave individuals in the SADC without an effective means for protecting their human rights and seeking redress when those rights are violated.  Additionally, the Mail and Guardian newspaper reported that several agreements of the SADC, such as an agreement on gender and development, require the Tribunal to give them effect. Consequently, civil society organizations have called on the region’s leaders to reverse their position on the Tribunal and reinstate access to the court.

Continued Enforcement of Tribunal Judgments

In the meantime, however, there is some consolation for those whose cases have already been adjudicated by the Tribunal.  When Zimbabwe dismissed the judgment registration for the Campbell case, the complainants applied to register the award in the High Court in Pretoria, South Africa relying on the fact that the Protocol allows enforcement of judgments in all Member States.  The High Court in Pretoria granted the application and attached Zimbabwean government property in South Africa to satisfy the Tribunal’s judgement.

On September 26, 2012, after the SADC Summit’s final communiqué, the South African Supreme Court of Appeal also upheld the High Court judgement.  The Supreme Court of Appeal held that the Tribunal was properly constituted at the time of issuing its judgment against Zimbabwe and the government was therefore bound by the Tribunal’s decision. Although Zimbabwe indicated it will appeal to South Africa’s Constitutional Court, the Supreme Court of Appeal’s judgment stands for the proposition that at the very least, judgments already issued by the Tribunal are still enforceable.