Constitutional Court condemns South Africa’s role in demise of SADC Tribunal
In December 2018, the South African Constitutional Court ruled that the participation of the South African President in the decision to abolish the Southern African Development Community (SADC) Tribunal was unconstitutional, unlawful and irrational. The same finding applies to his signature of the new SADC Protocol; which provides for a new Tribunal, but without the power to hear individual applications.
This judgement confirms an earlier decision by the Gauteng (Pretoria) High Court, brought by the Law Society of South Africa and others against the South African President. The Constitutional Court has now directed the President to withdraw his signature from the 2014 Protocol. He must also pay costs to the applicants.
The decision by the SADC Summit to abolish the (original) SADC Tribunal followed its judgment declaring the expropriation without compensation of private land by the government of Zimbabwe invalid and in violation of the SADC Treaty. Since the affected owners had no recourse to the Zimbabwean courts, some of them took their claim to the SADC Tribunal. It ruled that Zimbabwe had violated certain provisions of the SADC Treaty.
The South African President, together with the other SADC leaders, then decided to do away with the justiciability of individual disputes against the SADC Member States. They also decided to adopt another Protocol for establishing a new Tribunal with more limited powers. (This Protocol is not in force yet. There is no urgent process underway to obtain the required number of ratifications; this forum may remain a paper construct.)
The South African Constitutional Court invokes International Law as well as the South African Constitution as grounds for its ruling. With regard to the former it found that the amendment procedures applicable to the SADC Tribunal Protocol had been violated through the procedure in which the South African President participated. “This means that when our President decided to be party to the suspension of the Tribunal and to actually sign the Protocol, he was acting in a manner that undermined our international law obligations under the Treaty”. The Court went on to say: Our President thus acted unlawfully by following an impermissible or irregular procedure. Worse still, not only did he not have the power to not appoint or renew the terms of Members of the Tribunal but also lacked the authority to suspend its operations.
The Court held that the President may, in addition, not approve anything that undermines the South African Bill of Rights. He lacks the authority to negotiate and sign away the fundamental right of access to justice. To the extent that he purported to do so, his conduct is unconstitutional. What the South African President in fact did, according to the Court, was to make “common cause with other Member States in the region to deprive South Africans and citizens from other SADC countries of access to justice, even in circumstances where domestic courts lack the jurisdiction to entertain human rights and rule of law-related individual disputes.”
The matter of an appropriate remedy then had to be addressed.
“The appropriate remedy is simply to declare his participation in arriving at that decision, his own decision and signing of the Protocol constitutionally invalid, unlawful and irrational…. We cannot withdraw the President’s signature. But, we may direct him to withdraw his signature to the Protocol. One President is a successor in title of another and the obligations are similarly transferable from one to the other. For the execution of the duties attendant to the presidential office and antecedent authority is never really incumbent-specific. The power and obligations devolve from one personality to another – it is, after all, the Presidency. Whoever the President happens to be will be directed to withdraw the President’s signature to the Protocol.”
Where does this judgment leave the issue of SADC’s adherence to fundamental rights and their effective protection? The new South African President (Mr Cyril Ramaphosa) will presumably communicate this judgment to the SADC Tribunal in order to respect the “remedy” ordered. However, the other Member States will, as they often do, invoke their sovereignty and point out that they are not bound by rulings of foreign national courts. This will demonstrate the absence of an important building block in SADC’s legal regime.
SADC does not have a Protocol on individual rights. It has a large number of Protocols, Annexes, Charters, Codes, Declarations and Pacts dealing with various regional issues, but has not adopted a Bill of Rights for the region. Neither did it grant the SADC Tribunal explicit powers to protect such rights or to overturn decisions of national courts. The SADC Tribunal was not designed to be a court of final appeal jurisdiction. Its jurisdiction covered all disputes and all applications referred to it in accordance with the SADC Treaty and the Protocol which relate to the interpretation and application of the Treaty; the interpretation, application or validity of the Protocols, all subsidiary instruments adopted within the framework of the Community, and acts of the institutions of the Community; all matters specifically provided for in any other agreements that Member States may conclude among themselves or within the community and which confer jurisdiction on the Tribunal.
The protection of fundamental human rights through a supra-national legal regime requires a high level of commitment to the inter-state advancement of domestic legal orders dedicated to the rule of law and human rights, as found in e.g. the European Court of Human Rights and (in its more recent developments) in the European Union. It will also require deliberate governmental decisions and binding treaties to that effect.
SADC’s leadership (nor that of any of the other Regional Economic Communities in Africa) has never demonstrated a preparedness to accept binding international obligations of this kind. There are African fora that could be strengthened and be used for this purpose, but African governments do not litigate against each other over human rights violations or when obligations in trade agreements are not respected. (Border disputes are, however, often declared.)
The founding of a binding regional human rights regime will only start when all the relevant domestic legal orders are anchored in domestic dispensations such as those prevailing in South Africa and a small number of other SADC member states. In the meantime, the cause for good governance remains a vital challenge. It goes beyond the protection of human rights. Transparency, accountability and the rule of law should be respected in all its manifestations, including free and fair elections. The recent judgment of the South African Court, by implication, sheds light on one aspect of the vast task ahead.
 The Tribunal found that Articles 4 and 6 of the SADC Treaty (calling for the rule of law, democracy and human rights to be respected) had been violated. Mike Campbell (Pvt) Ltd v The Republic of Zimbabwe  SADCT 2 (28 November 2008).
 “The Summit, however, sought to amend the Treaty through a protocol, thus evading compliance with the Treaty’s more rigorous threshold of three-quarters of all its Member States”.
 Par 53.
 Par 56.
 Par 85.
 Par 81.
 Par 94.
 For these Protocols, see https://www.tralac.org/resources/by-region/sadc.html
 Art 14 (first) Protocol SADC Tribunal.
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