Top African court ‘powerless’ to reinstate SADC Tribunal
The African Commission on Human and People’s Rights has said it has no authority in the fight to fully reinstate the Southern African human rights Tribunal, which was suspended after ruling against Robert Mugabe.
The Commission decided last year to reject a landmark challenge filed by Zimbabwean farmers and victims of the Mugabe led land grab campaign, who cited all 14 Southern African Development Community (SADC) leaders in its application to have the Tribunal restored. It was the first time in legal history that a group of heads of state was cited by individuals as the respondent in an application to an international body.
The Tribunal was suspended in 2011 by SADC leaders, who chose to hobble the work of the court rather than take action against Mugabe. This was after the Tribunal ruled against Mugabe in 2008 in an historic case that pitted dispossessed Zim commercial farmers against the now 90 year old despot. The human rights court ruled that Mugabe’s land grab was unlawful and inherently racist, a ruling that ZANU PF and its leader actively ignored.
SADC leaders then went on to suspend the court and have since deliberately hamstrung the Tribunal’s future, with SADC deciding that the court will only be allowed to continue its work if individual access to it is stopped. This means that the court cannot fulfil its chief mandate, which is to uphold the human rights of all 250 million SADC citizens.
But despite this grave threat to the human rights of African citizens, the African Commission has said it is powerless to do anything and has rejected the challenge filed by Zimbabwean farmers Ben Freeth and Luke Tembani. The Commission, whose decision was only communicated over the weekend, criticised SADC for its handling of the Tribunal situation, but maintained that it cannot do anything further.
Lawyer Willie Spies, who submitted the application on behalf of Freeth and Tembani, told SW Radio Africa on Wednesday that the Commission’s decision is based on a ‘technicality’. He explained that the original complaint was based on two articles within the African Human Rights Charter, the guiding text of the Commission, “which state that African Union member states are not allowed to prevent individuals within their countries to having access to courts within their territories.”
“We said that in 2011, when SADC leaders got together and Robert Mugabe managed to convince them to suspend the operations of the Tribunal, those 14 heads of state contravened the African Human Rights charter,” Spies said.
He continued: “But after a process drawn out for over two and a half years, the Commission has now said that the articles (which the complaint was based on) say nothing about regional courts. And since the Tribunal is a regional human rights court, it is not covered by the (charter).”
Former Chegutu farmer Freeth, who is also the spokesperson of the SADC Tribunal Rights Watch group, said in a statement that the Commission’s “reasoning that the African Charter does not include within its protection courts not known at the time the African Union was formed, cannot be accepted.”
“When we are barred by Zimbabwe law to access the Zimbabwe courts or the Zimbabwe courts fail us, is it not guaranteed by the African Charter that we should have access to justice? We have to question the role and purpose of the African Charter and the African Commission on Human and People’s Rights if this fundamental human right is not guaranteed,” said Freeth.
His co-complainant Tembani meanwhile also said in a statement that the decision by the Commission is “a great injustice for Africans.”
“We ask the world and anyone who cares about human rights, justice, the rule of law and property rights in Africa, to help protect Africans from this injustice which threatens the development of the region. The African Union through the African Commission has made me despair that justice will come – so that Africans can take their rightful place in our world and stop us from being beggars on our resource-rich continent,” Tembani said.
Spies meanwhile said the Commission’s decision is a major blow to the efforts to reinstate the Tribunal, a legal fight he said has now reached the end of the road.
“The problem was created by politicians and the problem will need to be solved by politicians. It’s only a political interference by SADC leaders, a political change in Zimbabwe and a political solution to this situation that can resolve the issue. Legally we have come to the end of the road,” Spies said.