“Southern Africa was building a house of justice – a place where crimes could not go unpunished and victims of injustice and human rights abuses could turn with confidence – but that house is now in grave danger,” said Archbishop Emeritus Desmond Tutu. “The future of the SADC Tribunal hangs in the balance. Without it, the region will lose a vital ally of its citizens, its investors and its future.”
Inaugurated in 2005, the SADC Tribunal is empowered to adjudicate legal disputes between member states and between companies and governments. Individuals also have the right to take their governments to court when all efforts to achieve justice within their own countries have failed.
Between 2007 and 2009, the Tribunal adjudicated on about 20 cases – the vast majority of which concerned individuals complaining about violations of human rights, democracy and the rule of law.
“A regional court like the Tribunal is the only hope that a citizen has – that when his or her rights are violated by national authorities, that’s where he or she can go,” said Justice Dr Onkemetse Tshosa, a former SADC Tribunal judge from Botswana.
But in August 2010, SADC leaders decided to review the role and functions of the Tribunal after it had ruled against President Mugabe’s government in a series of cases dealing with land disputes in Zimbabwe. And now it looks as if they might opt to axe two of the Tribunal’s key components – its human rights mandate and individual access – following recommendations from SADC Justice Ministers and Attorneys General.
“Individuals access to the SADC court constitutes a key legal instrument that has brought hope to victims of the abuse of power in countries such as Swaziland, Malawi, Angola and Zimbabwe,” said Tutu. “We need the support of SADC citizens, civil society and the wider community to save the SADC Tribunal so that the rule of law, development and human rights are protected throughout our region.”
Organisations such as the SADC Lawyers Association, the International Commission of Jurists and the Southern Africa Litigation Centre (SALC) have been at the forefront of efforts to save the SADC Tribunal – and real progress has been made. But while they welcome the likely revival of the Tribunal, many activists fear that SADC’s leaders will only agree to let it function again if its functions are severely curtailed.
And if SADC decides to axe the Tribunal’s human rights mandate and block individual access, it will remove one of the last remaining avenues that southern Africans have for securing legal redress for rights violations and the unlawful actions of their governments.
SADC will also set itself at odds with the other regional economic communities in Africa. Both the Economic Community of West African States and the East Africa Community secure the rights of individual access to their respective courts, recognising that such access is critical to protecting human rights and to encouraging economic growth.
But SADC’s leaders have previously opted to sacrifice the Tribunal and the rule of law in the region to protect Mugabe’s government from the consequences of its actions – and they could well opt to protect their peers rather than the rights of SADC’s 280 million citizens.
“If you are a law-abiding Head of State, why are you scared that people might want to go through another adjudicator, unless it is that you fear you are likely to fall foul of the law?” asked Tutu.
The choice confronting SADC’s leaders in Maputo is simple – to strengthen the Tribunal, the rule of law and prospects for progress in the region or weaken it and undermine SADC’s own goals of sustainable economic growth and human rights for all. Sadly, they have chosen the wrong option in the past and could well do so again.
“As an African, I am sad that we should give this image of ourselves that we are basically not in favour of the rule of law,” said Tutu. “It is up to all of us to ensure that SADC not only reinstates the Tribunal but also strengthens it.”