An unprecedented application has been set down for hearing, by the High Court in Pretoria, on 5-7 February 2018. The Court is asked to declare President Zuma’s support of the suspension of the Tribunal of the Southern African Development Community (SADC), by the Summit in 2011, and the adoption of a SADC Protocol in 2014 to establish a new Tribunal (without power to hear complaints by individuals) unconstitutional, in breach of South Africa’s international obligations, and invalid. President Jacob Zuma is, by implication, accused of being party to the denial of human rights to millions of people in SADC.

The application is brought by the Law Society of South Africa (which has abandoned an earlier application involving the same matter), four Zimbabwean nationals, two Zimbabwean companies resident in Zimbabwe, the Southern African Litigation Centre (SALC), and the Centre for Applied Legal Studies (CALS).[1] They claim that the President’s actions were irrational, that the constitutional right of access to court has been violated, and that prior public consultations had to take place.

The SADC Tribunal came into operation in 2005 and rendered about 15 judgments (all applications were brought by private parties) before it was suspended in 2011.[2] This followed a ruling in 2010 in favour of a Zimbabwean citizen (Mr Campbell) that the expropriation, without compensation, by the Mugabe government of his private land was in violation of the SADC Treaty. The SADC Treaty does not contain a “bill of rights” or a property clause, but in its Article 4 it is stated that SADC and its Member States shall act in accordance with certain principles, such as sovereign equality of all Member States, solidarity, peace and security; and human rights, democracy and the rule of law, equity, balance and mutual benefit; and peaceful settlement of disputes. Article 6 of the SADC Treaty deals with General Undertakings and stipulates that Member States “undertake to adopt adequate measures to promote the achievement of the objectives of SADC, and shall refrain from taking any measure likely to jeopardise the sustenance of its principles, the achievement of its objectives and the implementation of the provisions of this Treaty.”

In the Campbell case the then SADC Tribunal employed these treaty provisions as the basis for ruling against Zimbabwe. The rest is history.

President Zuma’s legal team argues that a South African Court has now been asked to venture into “the heartland of the executive’s exclusive competence in foreign policy and international relations”. This will violate the separation of powers doctrine. In addition, the right of access to court[3] does not guarantee access to international courts and, therefore, does not apply. There is also no constitutional duty to conduct public hearings in respect of executive actions of the kind under investigation. They further argue that this application was brought too late in respect of the 2011 decision (to suspend the original Tribunal) and too early as far as the adoption of the new Protocol is concerned. The new Protocol has not yet been ratified, is not in force, and has not yet been submitted to the South African Parliament in terms of Section 231 of the South African Constitution.[4]

This matter could go all the way to the Constitutional Court. However, it is not quite clear what the nature of an effective remedy could be if the application succeeds. The relief sought is only for an order to declare the 2011 and 2014 actions by the President invalid. The Court is not asked to give domestic effect to any of SADC’s legal instruments. Neither is it argued that South African citizens (or persons in South Africa) require a right of appeal to a SADC Tribunal should the South African Constitutional Court fail to “protect” them. Their application has this implication.

South African courts have no jurisdiction over SADC or its Member States in disputes about the application or interpretation of SADC legal instruments. It is inconceivable to foresee an order instructing the President (or his successor) to return to Gaborone to withdraw South Africa’s earlier support for the contested Summit resolutions. Apart from being an unimaginable embarrassment, it would have no effect on the validity of the decisions already taken by an international organization with its own legal personality. SADC Summit decisions are taken on the basis of consensus; not unanimity.[5]

The fact that this matter is argued exclusively from a national constitutional and human rights angle, results in an inadequate discussion of SADC’s critical features. SADC is not a regional human rights arrangement; it is a Regional Economic Community (REC). Its main purpose is to pursue deeper economic integration among its Members. This process is in its early stages. It is true that SADC has, over time, adopted several other Protocols (in addition to the Protocol on Trade) dealing with regional peace, political cooperation, water, gender, etc. However, the objectives so agreed are formulated and pursued as intergovernmental endeavours. Each of these instruments needs careful scrutiny to discover the nature and extent of the obligations accepted. Such a process should be guided by Article 31 of the Vienna Convention on the Law of Treaties: A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. The SADC legal instruments are of the standard public international law kind.

SADC does not have supranational institutions to which the Member States have ceded national sovereignty. In fact, deeper regional integration in Africa is a difficult exercise and a challenge for countries at different levels of economic development. SADC, like the World Trade Organization (WTO), is primarily a member-driven organization. This may be unfortunate but is the present reality.

In its present form SADC has institutional deficits and lacks democratic legitimacy. However, Courts of law should take cognisance of what the Member States have been prepared to accept as binding international obligations. The SADC Treaty does not oblige the Members to give domestic effect of a new branch of law, SADC Community Law, as the European Union has done. SADC’s integration agenda is much more modest.

It should also be pointed out that the governments of the Member States are protective of their sovereignty. They do not litigate against each other over the violation of mutually agreed obligations. The SADC Tribunal never entertained an application by a Member State or a SADC organ. The starkest reminder of the failure to bring about a rules-based arrangement, is provided by the Zimbabwean example. Harare has for several years now violated its obligations under the SADC Protocol on Trade and has done so with impunity.[6]

The most immediate challenge with regard to bringing SADC closer to a rules-based arrangement lies with the Member States. They should comply with the obligations accepted as part of SADC membership. Dispute settlement should be practiced; it is not an offence to the dignity of another sovereign state. It is, in fact, a confirmation of sovereignty to honour international legal obligations freely entered into. And the most effective protection of human rights is ensured via justiciable national constitutions. Is the implication (of the application before the Pretoria High Court) that SADC Member States without such domestic arrangements have accepted a binding Bill of Rights via the SADC Treaty; to be enforced by a supranational SADC Tribunal?

A fundamental question confronts sovereign states when they enter into regional integration arrangements: How far are they prepared to travel on the road of integration? There should be legal certainty regarding the scope and depth of their undertaking, the implementation of obligations, and the relationship between regional and domestic legal spheres. SADC has not addressed these basic issues.

The case now before the Pretoria High Court is a remarkable one but also an indictment of SADC. Some SADC citizens have decided to take recourse to domestic legal avenues. This is an unconventional step. Hopefully it will inspire a new and inclusive discourse about SADC and its operations. However, basic design issues need to be clarified before regional human rights will become a dominant feature of SADC.

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[1] The latter two parties are acting as amici curiae (friends of the Court).

[2] tralac has written extensively on this issue in the past. See for example the following papers and Discussion notes: The New Protocol for the SADC Tribunal: Jurisdictional Changes and Implications for SADC Community Law; High Court of Botswana steps into void left by SADC Tribunal; tralac Policy Brief: A new tribunal for SADC, but with limited jurisdiction and fewer powers; Does it matter whether SADC has a Tribunal?; Another chapter in the SADC Tribunal saga: South African Court confirms the Tribunal’s Costs Order; What future now for the SADC Tribunal? A plea for a constructive response to regional needs; What has happened to the protection of rights in SADC?

[3] In Section 34 of the South African Constitution.

[4] Section 231 of the Constitution provides that the negotiating and signing of all international agreements is the responsibility of the national executive. An international agreement binds the Republic only after it has been approved by resolution in both the National Assembly and the National Council of Provinces, unless it is an agreement of a technical, administrative or executive nature, or an agreement which does not require either ratification or accession. International agreements become law in the Republic when enacted into law by national legislation.

[5] Article 10 SADC Treaty.

[6] See the following tralac Discussion notes: How can the Beitbridge Dispute be resolved?; A new land expropriation compensation case against Zimbabwe under the SADC Finance and Investment Protocol; Does the SADC regime provide for surtaxes on imported goods?; Traders demonstrate against new Zimbabwe import regulations