Calls for SADC to reinstate Tribunal


Calls for SADC to reinstate Tribunal

Calls for SADC to reinstate Tribunal
Photo credit: Felicity Male | SADC

A coalition of 19 legal and human rights organisations has called on regional leaders meeting for the Southern African Development Community (SADC) summit in Gaborone, Botswana, on Monday to reinstate the SADC Tribunal which was effectively disbanded last year.

The Coalition for an Effective SADC Tribunal said the leaders should reinstate the tribunal to uphold the rule of law and human rights in the 15 member states of SADC. It complained that the SADC leaders had acted illegally a year ago, by adopting a new SADC Tribunal protocol which removed access to the Tribunal by individuals and legal persons and also removed its human rights mandate. This left the Tribunal with only the power to adjudicate disputes between SADC states.

This was illegal because the SADC Treaty – which is essentially the organisation’s constitution – requires that decisions concerning the SADC community and any affected persons or citizens must be made in consultation with them, the coalition said. The leaders hadn’t done that.

This had affected “every single citizen and person in the region”. ”The reinstatement would provide legal recourse to people seeking justice once they have exhausted existing legal remedies at the national level,” the coalition said.

“The disbandment of the old Tribunal and the adoption of the new protocol effectively disregards the independence of the judiciary, separation of powers and the rule of law. It also impacts negatively on human rights and business confidence across the region.

“We urge each SADC head of state to consider the merits of the SADC Tribunal in its original form and the positive impact it will have in the region – socially, economically and in terms of international best practice.” Last week, the Southern African Business Forum, (SABF) meeting for the first time on the margins of the SADC summit in Gaborone, also criticised the decision by SADC leaders to disempower the SADC Tribunal.

More than 100 business leaders of SABF said in their Savuti Declaration that “SADC has extensive plans for regional integration. The private sector of the region calls for the focus to now shift to implementation. Investors require legal certainty and failure by SADC member states to implement their regional obligations have serious implications for business. “The removal of access by private actors to the SADC Tribunal has reduced the legal remedies available to ensure legal compliance in SADC.”

SADC leaders moved to “neuter” the Tribunal, as some analysts have described it, after it ruled, in 2007 and 2008, that Zimbabwean President Robert Mugabe’s seizure of white farms violated the SADC Treaty because the decision discriminated against whites.

Meanwhile, former Malagasy President Marc Ravalomanana has appealed to the SADC leaders to re-instate his privileges and to restore his businesses in Madagascar which he lost after being toppled in a military coup in 2009. Last year, Ravalomanana returned to the Indian Ocean island state from exile in South Africa without the permission of the current government of President Hery Rajaonarimampianina and was quickly arrested. He was later released after interventions from the ambassadors of South Africa and other countries.

Ravalomanana has written to Botswana President Ian Khama – who is taking over the SADC chair – to South African President Jacob Zuma and to SADC Executive Secretary Stergomena Tax.

He has pointed out to them that he has been denied the privileges which he is entitled to under the SADC roadmap which all political players in Madagascar agreed to, in an effort to end the post-coup crisis, and which has been incorporated into Malagasy law.

These include 12 permanent security guards, diplomatic passports for himself and his wife, a private house, a luxury car and an SUV, a fully-equipped residence or a housing allowance, a landline phone and a mobile phone, water and electricity supply and medical expenses. Ravalomanana wrote to the African Union earlier to say the government had only given him the 12 security guards and diplomatic passports for himself and his wife but none of the other privileges.

However, in his letters to Khama, Zuma and Tax, dated August 14, he said that recently the government had also taken away his security guards. Ravalomanana also complained that the Malagasy government had prohibited him from re-opening his family business – called TIKO – which had been destroyed during the 2009 coup. He said the government continued to block his radio and TV station MBS “with no legal and plausible explanation”.

In his letter to the AU, Ravalomanana had indicated that the government was preventing TIKO restarting because he had not paid his tax arrears. He said he had told the government he was willing to pay the tax arrears – but only after deduction of the compensation which was due to him under the SADC roadmap for the losses TIKO had sustained from being shut down.

“Overall, I am denied the right to actively and constructively participate in my country’s re-development,” he complained in the letters to Khama, Zuma and Tax.

“The government’s lack of political will to honour its commitments, whether to me or other constituents, indicates a systemic problem. The government may have legitimacy but it lacks credibility.”

He said the government’s lack of respect for its people’s rights had made Madagascar “the richest poor country in the world – richest in terms of being an island nation blessed with an abundance of natural resources, peaceful population and unique heritage, but poor in terms of ranking close to the bottom of virtually every wealth and human development index”.

SADC leaders are discussing Madagascar as a source of possible continuing instability at the summit. In May this year, the country’s Parliament impeached Rajaonarimampianina but the constitutional court overturned that decision. However, the president’s loss of Parliament’s support has added to Madagascar’s political volatility.