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South Africa withdraws its Signature from the Decision to abolish the SADC Tribunal


South Africa withdraws its Signature from the Decision to abolish the SADC Tribunal

South Africa withdraws its Signature from the Decision to abolish the SADC Tribunal

Changes to institutional arrangements can happen in unexpected ways and as a result of governments’ new policies. The correct procedure is to follow the formal procedures for adopting amendments. If this does not happen, there may be unforeseen consequences, which may be exacerbated if national constitutional provisions are also affected.

In 2011, the leaders of the Member States of the Southern African Development Community (SADC) decided to abolish the SADC Tribunal; after a ruling against one of the SADC Member States in a case involving a private applicant.[1] President Zuma of South Africa supported that decision. In December 2018 the South African Constitutional Court ruled that his participation in that decision 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.[2] Only inter-state applications will be entertained in SADC. The new Protocol is not yet in force.

The South African Constitutional Court invoked International Law as well as the South African Constitution in support of its ruling. 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.[3] The Court also held that the President lacked the authority to sign away the fundamental right of access to justice, provided for in the South African Constitution.

The Constitutional Court then formulated a unique remedy: “We cannot withdraw the President’s signature. But, we may direct him to withdraw his signature to the Protocol…. 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.[5] It ruled as follows:

  • The suspension of the operations of the SADC Tribunal was inimical to the Rule of law, which is a foundational principle of the SADC regime.

  • Under the principle of separation of powers, it is premature for the Court to rule on the legality of the process which is still in the territory of the Executive pending presentation to the Legislature of Tanzania.

  • In the absence of a functional Tribunal the legitimacy of SADC as a Community and international personality is in jeopardy. The Tanzanian Government should be advised 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 individuals and legal persons against the Government of Tanzania in matters arising out of the SADC Treaty.

Civil society thus scored important victories in the Courts of two SADC Member States. The South African government (under President Ramaphosa) has decided to respect the judgment of its Constitutional Court. It announced its decision to do so on 19 August 2019.[6] South Africa has now withdrawn its support of the 2011 SADC Summit decision to abolish the Tribunal.

What are the implications of this development? If all SADC Member States would follow South Africa’s example, the SADC Tribunal can be restored. This would require a formal decision to re-open this matter and to withdraw the Protocol on the new Tribunal (which is awaiting ratification). This would be an unprecedented development, but there are strong indications that the 2011 decision was taken in violation of the procedure to amend the Tribunal’s Protocol. However, there is no international forum with jurisdiction to rule on that matter. The Governments can correct their own mistake.

If the South African example is not followed (or if only some of the SADC Member States would do so) there is no firm basis for resolving the problem. And we do not know whether the new Tribunal would ever come into existence. It will, in any case, not be able to hear applications by private parties. Tanzanian private parties can bring cases to the Court of Justice in the East African Community (EAC), but this does not assist them in respect of violations of SADC legal instruments.

States do from time to time withdraw from international legal arrangements. They invoke their sovereignty to do so. In May 2018 the United States withdrew from the Joint Comprehensive Plan of Action.[7] Unofficially known as the “Iran Nuclear Deal”, the Joint Comprehensive Plan of Action is an agreement on Iran’s nuclear program reached in July 2015 by Iran, the five permanent members of the United Nations Security Council – China, France, Russia, United Kingdom, United States – plus Germany) and the European Union. The American decision has caused serious uncertainties for how the international community will deal this issue.

In matters of regional integration unilateral decisions or irregular changes to the rules make matters very complicated. The unravelling of a well-functioning regional arrangement can have far-reaching consequences, for private parties too. Brexit is the obvious example. When the United Kingdom (UK) has finally left the European Union (EU), there will not be freedom of movement of persons between the EU and the UK any longer. The UK will also forfeit preferential access to the European markets; unless a new agreement is negotiated. Under Prime Minister Boris Johnson that has become a rather remote possibility, at least for the near future.

The decision to abolish the SADC Tribunal was a retrogressive step. It is not clear how Zimbabwe remains a Member of COMESA, where the Court of Justice enjoys jurisdiction over cases involving private parties. It frequently issues judgments in such matters.

Civil society will have to keep pressing for the restoration of the SADC Tribunal. This will require more pressure on the governments of the SADC Member States. They should correct their former unlawful decision.

[1] Mike Campbell (Pvt) Ltd and Others v Republic of Zimbabwe (2/2007) [2008] SADCT 2 (28 November 2008). The Tribunal ruled that Zimbabwe had violated the SADC Treaty when it expropriated private land without compensation.

[2] Law Society of South Africa and Others v President of the Republic of South Africa and Others [2018] ZACC 51.

[3] “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”.

[4] Par 94.

[5] 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, 4 June 2019.

[6] https://www.politicsweb.co.za/politics/reinstatement-of-sadc-tribunal-requested--saai

[7] https://en.wikipedia.org/wiki/United_States_withdrawal_from_the_Joint_Comprehensive_Plan_of_Action

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