The New Protocol for the SADC Tribunal: Jurisdictional Changes and Implications for SADC Community Law
The Southern African Development Community (SADC) will get a new Tribunal. This will happen because the Summit of SADC Heads of State and Government so decided. SADC has been without a functioning Tribunal since 2010. In 2008 the Tribunal gave a ruling against Zimbabwe in a dispute involving the expropriation of private land without compensation and found Zimbabwe to be in violation of Articles 4 and 6 of the SADC Treaty. These provisions oblige Member States to act in accordance with democracy, human rights and the rule of law.
The 2008 decision by the Tribunal in favour of the applicant, a private party, was never implemented. When the matter was referred to the SADC Summit (which is responsible to take action in cases of non-compliance) it decided, instead, to develop a new Protocol for the SADC Tribunal. The Summit also decided not to renew the terms of the serving Judges and not to appoint new Judges; thereby effectively suspending the Tribunal. Thus the Tribunal, despite not being formally abolished, could not hear any new cases and could not finalize pending matters. Legal questions about the interim period and transitional arrangements were, however, not clarified.
At the SADC Summit of August 2014, a new Protocol was adopted and signed. It may, however, take quite some time (perhaps years) before SADC will have an active judicial organ again. The new Protocol shall enter into force thirty days after the deposit of the Instruments of Ratification by two-thirds of the Member States. Ratification takes place in terms of the national constitutional procedures of the Members. This may, in some instances, involve national legislatures. At the time of writing (January 2015) nine Members have signed, but apparently no ratifications have yet been deposited.
The new Protocol will bring about far-reaching institutional and practical modifications. Such changes should be founded on sound legal principles and procedures. This did not happen. The Summit did not, for example, invoke the amendment clause in the original Protocol, which would have been the correct procedure. The Summit’s modus operandi raises serious questions about the binding nature of SADC legal instruments, as well as the functioning of SADC as a rules-based arrangement. The dispute settlement dimension of SADC and the enforcement of its legal instruments during the interim period (between the ‘suspension’ of the previous Tribunal and the entry into force of the new Protocol) are de facto and de jure in limbo.
Where do these developments leave the Organization and what are the prospects for the enforcement and development of SADC law? How will essential rights be respected and who will be able to bring applications to the Tribunal? What has been lost (or gained) and what are the bigger picture implications? How will the SADC FTA and trade among the Members be affected? This paper discusses these issues and the implications of the recent developments. The document which will be analysed is the final and official version that the Summit adopted and which nine member states have signed.
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