Building capacity to help Africa trade better

2018 SADC Summit – Promoting Infrastructure Development and Youth Empowerment for Sustainable Development


2018 SADC Summit – Promoting Infrastructure Development and Youth Empowerment for Sustainable Development

2018 SADC Summit – Promoting Infrastructure Development and Youth Empowerment for Sustainable Development

The 38th Ordinary Summit of the Heads of State and Government of the Southern African Development Community (SADC) will take place 17th to 18th August 2018 in Namibia. The occasion of the Summit also provides an opportunity to reflect, beyond this year’s specific theme, more broadly, on SADC’s founding ambitions and to appraise progress in attaining its objectives. This tralacBlog reflects on select trade-related matters currently on the SADC agenda.

SADC was designed with high expectations for trade, integration and development, anchored in rules-based governance. The SADC Treaty speaks of common action; regional policies, respect for the rule of law, human rights and democracy. The Member States undertook to take all steps necessary to ensure the uniform application of this Treaty… and to accord (it) the force of national law.[1] And Article 23 of the SADC Treaty confirms that “SADC shall seek to involve fully, the people of the Region and key stakeholders in the process of regional integration”. This resonates with the focus on youth empowerment in this year’s theme, but also reminds us that the involvement of women and other communities must also be actively supported across SADC.

How should SADC’s progress be measured? Effective regional regimes have institutions which can serve as collective platforms for advancing the common integration agenda. This is done via the adoption of legal instruments to deal with new developments (e.g. trade in services, competition, remedies against unfair trade practices, industrialisation), ensuring transparency (by publishing and notifying national trade measures and policies), providing legal certainty and predictability (the settlement of disputes), and guaranteeing that exceptions to basic obligations will only be permissible as provided for under the provisions of SADC’s legal instruments. It seems reasonable to assess achievements in the trade and integration arenas against the criteria listed in the SADC legal instruments and where the improvement of trade governance could make a big impact.

In 2005 the SADC Tribunal became operational. Its task was to ensure adherence to and the proper interpretation of the provisions of this Treaty and subsidiary instruments and to adjudicate upon such disputes as may be referred to it.[2] The decisions of the Tribunal had to be final and binding. When the SADC Tribunal ruled against Zimbabwe for expropriating private land without compensation, the SADC leaders decided, at an Extraordinary Summit in May 2011, to suspend the Tribunal. At the SADC Summit of August 2014, a new Protocol was adopted and signed; providing for a new Tribunal. It has, however, not yet been established. The new Tribunal will not have the power to hear private claims. With this limitation on its jurisdiction, it may turn out to be an idle body since African governments do not litigate against each other on trade issues. An important question remains – what legal avenues are available to private parties?

Intra-SADC trade governance can be improved if there is a real commitment to rules-based practices. Article 3 of the SADC Protocol on Trade provides for ‘derogations’ – available when Members States claim they cannot comply with tariff reduction obligations or the duty not to impose non-tariff barriers. Zimbabwe, for example, has invoked Article 3 before and has recently submitted a further application for a derogation. This application is now to be considered at meetings preceding the Summit of Heads of State and Government. Zimbabwe want to revitalize its domestic industry; and views import protection as a key means of achieving this objective. Such a request highlights the complex interplay among Member States’ domestic industrial development agendas, SADC’s trade agenda and its industrialization agenda, which emphasizes amongst other issues, the importance of building regional value chains. Zimbabwe’s request is treated as part of a political, not judicial, process.

The SADC Trade Protocol provides for safeguards and trade remedies. These are to be used when it becomes necessary to deal with unfair trade or exceptional circumstances, such as import surges which threaten to, or do cause harm to domestic industry. But they have never found application. Safeguards and trade remedies are conditional, must be justified and must comply with the applicable rules. If they are incorrectly used affected state and private sector parties may bring legal action to ensure the relevant rules and procedures are respected. By treating such matters as political questions, the development of a rules-based trade regime is precluded.

Perhaps SADC’s most serious challenge is to muster the political will to respect its own legal instruments where they call for rules-based trade governance.

[1] Art 6 SADC Treaty, available on the tralac website.

[2] Art 16 SADC Treaty.

About the Author(s)

Trudi Hartzenberg

Trudi Hartzenberg is the Executive Director of tralac. She has a special interest in trade-related capacity building. Her research areas include trade policy issues, regional integration, investment, industrial and competition policy.

Gerhard Erasmus

Gerhard Erasmus is a founder of tralac and Professor Emeritus (Law Faculty), University of Stellenbosch. He holds degrees from the University of the Free State, Bloemfontein (B.Iuris, LL.B), Leiden in the Netherlands (LLD) and a Master’s from the Fletcher School of Law and Diplomacy. He has consulted for governments, the private sector and regional organisations in southern Africa. He has also been involved in the drafting of the South African and Namibian constitutions. He grew up in Namibia.

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