Introduction:

For about the last year and a half a vital aspect of the Southern African Development Community (SADC) legal regime, the ability to enforce the rights and obligations in the legal instruments of this regional arrangement, has been suspended. The terms of the Judges (Members) of the Tribunal have also not been renewed. There are no indications yet as to when and how the judicial function in the organization will be restored or what new arrangement might be put in place. And there is no public debate about the issues at stake.

Since the Windhoek meeting of the SADC Summit in August 2010, the SADC Tribunal has not been allowed to hear any new cases. This is a consequence of decisions taken by the SADC Summit at is Windhoek Summit. At this meeting it discussed, amongst other matters, the recent rulings by the SADC Tribunal against Zimbabwe. Those judgments were not implemented. It was, instead, decided to commission a new study on the role, responsibilities and terms of reference of the SADC Tribunal. This development was triggered by the rulings by the Tribunal that provisions in the SADC Treaty had been breached by the actions of the government of Zimbabwe. The Campbell case involved a national of Zimbabwe and his claim that his basic rights had been violated as a result of the expropriation, without compensation, of his private property. The SADC Tribunal became involved after all efforts at obtaining judicial protection through the courts of Zimbabwe had failed. In the later Gondo case the Tribunal again ruled against Zimbabwe for other violations of basic human rights and the failure to honour local judgments on compensation for the violation of private rights.

The SADC Summit decisions give rise to serious concerns about the rule of law in this organization and about the protection of rights. The decision to suspend the functioning of the Tribunal has resulted in the de facto amendment of the Treaty and Protocol on the Tribunal, but involving what is prima facie an ultra vires action on the part of the Summit. It does not have the power to suspend the judicial arm of SADC or any part of the Treaty. If changes to existing legal instruments become necessary they should be brought about by giving effect to the amendment provisions in the applicable legal instruments. The SADC Tribunal is one of the main institutions of this organization and it derives its powers and legal status from the SADC Treaty, as further defined in its own Protocol.

Author: Gerhard Erasmus

Download:   S12TB012012 What has happened to the protection of rights in SADC.pdf

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