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Another Ruling against the Dismantling of the SADC Tribunal


Another Ruling against the Dismantling of the SADC Tribunal

Another Ruling against the Dismantling of the 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 in 2011 was unconstitutional, unlawful and irrational. The same finding applies to his signature of the subsequent SADC Protocol, which provides for a new Tribunal, but without the power to hear applications by individuals.[1] Only inter-state applications will be entertained. The pdf Protocol on the new Tribunal (453 KB) is not yet in force.

The South African Constitutional Court invoked 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.[2]

The Court further held that the President lacked the authority to negotiate and sign away the fundamental right of access to justice, provided for in the South African Constitution. 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.”[3]

In terms of judicial remedies, the Court declared the President’s participation in the adoption of the SADC Summit decision and his own decision and signing of the new 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.... Whoever the President happens to be will be directed to withdraw the President’s signature to the Protocol.[4]

The High Court of Tanzania recently ruled on the same matter. In  pdf Tanganyika Law Society versus Ministry of Foreign Affairs and International Cooperation of the United Republic of Tanzania and the Attorney General of the United Republic of Tanzania (1.03 MB) , issued on 4 June 2019, the legality of the suspension of the SADC Tribunal and the constitutionality of the Tanzanian act of supporting the suspension of the SADC Tribunal had to be decided.

The Court deals extensively with the SADC legal instruments, the obligations of the Member States under International Law, as well as the Constitution of Tanzania, including separation of powers issues. It notes, for example, that “Member States shall take all necessary steps to accord this [SADC] Treaty the force of national law.” The Treaty therefore creates norms capable of enforcement in the domestic courts of competent jurisdiction, unless it is disputed that the SADC Treaty has force of law in Tanzania.

On the question of constitutional review, the Court observes: “Put in simple terms, the issue before the Court is - whether in the exercise of its executive powers as a Sovereign in the course of entering into; and complying with, international treaties and obligations, the government has powers to derogate from the Constitution”.[5] The resolution to suspend the operations of the Tribunal eroded existing rights of parties who had access to the Tribunal.[6]

The Court drew certain conclusions:

  • Undermining the operational capacity of the Tribunal is inimical to the rule of law as a foundational principle for the protection of human rights, democracy and good governance underpinning the Community established under the SADC Treaty. Such action violates the fundamental tenets of a fair hearing before an independent tribunal as entrenched in the SADC Treaty; and other international treaty obligations.

  • The suspension of the SADC Tribunal opened doors of access to aggrieved parties to seek a remedy in domestic courts of competent jurisdiction, and as such the irrational attempt to fetter the operations of the Tribunal limited, but did not abrogate the right to access to justice per se.

  • Tanzania is bound under the Treaty to give it effect in good faith.

  • The State parties were not obliged to sign the impugned resolutions merely because all decisions are made by consensus. It found it to be “settled law” that consensus means the adoption of a decision without formal opposition. A state party can either opt to abstain, or to veto the decision. The Government is therefore at liberty to review its position with a view to conforming to its Constitutional obligations; and the binding nature of its international Treaty obligations.

  • In striking a “delicate balance” between upholding the doctrine of separation of powers, and the Courts' mandate to maintain checks-and-balances, the Court is constrained not to interfere with the transient functions of other organs in this case.

  • The proposed amendment to the Tribunal Protocol calls for an amendment of the SADC Treaty and as such and is subject to ratification by Parliament. All concerns, fears and apprehensions regarding consultation and determination of the public interest, can always be dealt with when or before the matter is placed before Parliament.

The following remedies were ordered:

  • The suspension of the operations of SADC was inimical to the Rule of law as a foundational principle inherent to the legitimacy of the Community; and as expressly entrenched in the SADC Treaty. The Respondents are enjoined pursuant to the respective Treaty obligations; to give effect to the SADC Treaty

  • Under the Principle of separation of powers, it is premature for the Court to rule on the legality or otherwise of the process which is still in the territory of the Executive pending presentation to the Legislature. All issues relating to participation and involvement of stakeholders in the proposed amendments can be dealt with at the level of the Legislature and in accordance with its procedures.

  • In the absence of a functional Tribunal, as duly established as a constituent institution under the SADC Treaty, the legitimacy of SADC as a Community and international personality is in jeopardy. The respondents are enjoined to advise Government to consider a review of its position.

  • Pending reopening doors of the suspended SADC Tribunal, the High Court of Tanzania has inherent powers to entertain all adjudicative disputes between individual and legal persons against the Government of Tanzania in matters arising out of the SADC Treaty.

Where do these judgments by senior national Courts in two of the SADC Member States leave the original SADC Tribunal? Civil society has scored victories in the Courts of two SADC Member States, but it is now for the relevant Governments to take matters further and comply with the Court orders. Will they be prepared to re-open this matter and pursue the review of the decision to abolish the SADC Tribunal? This will take considerable political courage; and acceptance of the fact that the real issue at stake here is to allow regional courts to review national human rights violations and matters arising out of the SADC Treaty.

This will have far-reaching implications in terms of establishing a supra-national forum with appeal jurisdiction over sensitive matters. The proper approach would then be to re-visit the full spectrum of Community Law and the powers of regional institutions.

[1] pdf Law Society of South Africa and Others v President of the Republic of South Africa and Others [2018] ZACC 51 (371 KB) .

[2] “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”.

[3] Par 81.

[4] Par 94.

[5] Judgment, p 11.

[6] Judgment, p 44.

About the Author(s)

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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