The suspension in 2010 of the SADC Tribunal has left a serious gap in the functioning of the Organization. The integrity and operations of SADC are affected if it is impossible for the judicial organ of the Organization to adjudicate the various types of disputes which can arise under SADC law. An example of the detrimental consequences is already available. The High Court of Botswana (where the SADC Secretariat is housed) made an unusual ruling and decided that it has jurisdiction over a dispute between an official of the SADC Secretariat and the Organization.

The Summit decision to disband the Tribunal was adopted by consensus. The basic rule is that SADC institutions take decisions on the basis of consensus. This must give rise to the question whether the Member States are committed to honouring their obligations under the SADC Treaty. It has been argued that it was never intended that the SADC Tribunal should exercise human rights jurisdiction.

That might be true, but this raises familiar debates about the careful drafting of legal instruments. Articles 4 and 6 of the SADC Treaty contain undertakings to protect and promote democracy and human rights. Courts of law have to interpret international agreements by giving effect to the words in light of their ordinary meaning in the context in which they have been used. If this is the problem which the Member States want to address now they should limit their drafting of the new protocol for the Tribunal to this aspect.

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