Why SADC Tribunal Must Keep Human Rights Mandate

 

Under the theme of ‘The SADC We Want’, the forum will allow participants to engage with SADC elders, such as former Mozambican President, Joaquim Chissano, senior SADC officials and SADC parliamentarians.

One of the key issues will be the future of the SADC Tribunal since there are growing concerns that SADC leaders will decide to remove the Court’s human rights jurisdiction – which would be a serious blow to the citizens of the region and to hopes for economic growth and development.

The proposal to remove the Tribunal’s critical human rights mandate is contained in a draft amendment to the institution’s Protocol, which was adopted by SADC Ministers of Justice in Angola in June – and is likely to be passed by the summit.

The Ministers of Justice did recommend some progressive provisions in the Protocol – such as allowing private access, guaranteeing judicial independence and setting up an appellate chamber – but these are far outweighed by the negative impact of destroying its ability to adjudicate in human rights matters.

A coalition of legal organisations, including the Southern Africa Litigation Centre (SALC), the International Commission of Jurists (ICJ) and the SADC Lawyers Association (SADC LA), have been fighting to save the Tribunal since it was first suspended by SADC leaders back in 2010 – along with a variety of other organisations, such as the Open Society Initiative for Southern Africa.

SALC will be giving a presentation at the civil society forum to stress the importance of campaigning to revive the Tribunal and, critically, keep its human rights mandate. 

BACKGROUND 

THREE REASONS WHY THE SADC TRIBUNAL MUST KEEP ITS HUMAN RIGHTS MANDATE 

TRADE, AID AND INVESTMENT

 

By establishing SADC’s commitment to the protection and furtherance of human rights through the SADC Tribunal, southern Africa will become a more attractive destination for investment and aid from the increasingly human rights-concerned international business and donor community. 

There is a close relationship between human rights protections and foreign direct investment—the more that human rights are protected, the more attractive a country becomes for foreign investors. Human rights protections afford investors a citizenry that is healthy, creative, and innovative and reassures them of protection of property and investment rights. Greater respect for human rights is correlated with higher education levels, reduction of mortality, and better national infrastructure. These are all necessary components of a strong national economy and an attractive investment climate. Investors today are concerned with obtaining and maintaining high-quality human capital, a resource that is renewable and potentially limitless—but only when human rights are respected and promoted.

 

Donor nations also seek to support countries that have shown a commitment to protecting human rights. Nations such as South Africa, Botswana, Lesotho, Namibia and lately Malawi understand this relationship. Trade relations with other nations at the international level have improved owing to these countries’ commitments in protecting human rights and adhering to the rule of law. other SADC states can attract foreign direct investment and trade by showing their commitment to preserving human rights through the SADC Tribunal.

 

SADC countries can also improve international trade in southern Africa by pledging to protect human rights, especially the freedoms of movement, speech as well as rights to education, health and property. By ensuring that the rights of businesses, investors, and consumers to travel, communicate, negotiate, and advertise within the region are protected by the SADC Tribunal, SADC will increase and improve trade in the region.

 

OUTPACING REGIONAL RIVALS

 

SADC is counterbalanced in sub-Saharan Africa by the Economic Community of West African States (ECOWAS) and the East African Community (EAC). In order to remain competitive and support SADC’s rising economies—especially South Africa, which has the largest economy in Africa—SADC must commit itself to keep abreast with ECOWAS and EAC in all fields and eventually show stronger leadership on the continent. This must include a commitment to protect human rights through the establishment of a human rights mandate in the SADC Tribunal.

           

From 1991 to 2004 the ECOWAS Court of Justice (ECCJ) did not have a human rights mandate and only ECOWAS member states and institutions could file petitions before it. The 1991 ECCJ Protocol was amended by the revolutionary 2005 Supplementary Protocol which endowed the ECCJ with the mandate and competence to adjudicate on human rights cases. The supplementary protocol further expanded access to court provisions by allowing individuals and corporate bodies to file cases. Between 2005 and 2009 the ECCJ had handed down 26 decisions as opposed to just one decision from 1991 to 2004.  The number and range of cases heard by the Court of Justice since 2005 has been tremendous—from slavery to the freedom of movement to the right to education. Each decision under this mandate has strengthened the protection of human rights in West Africa and has made the states of West Africa safer, more stable, healthier, and more attractive to investors. These positive developments have emanated from Abuja, the seat of ECOWAS and the capital of Nigeria, which has the second-largest economy in Africa.

 

In contrast, the EAC has not yet operationalised a protocol guaranteeing a human rights mandate for the East African Court of Justice. Thirteen years have passed since the East African Treaty was signed in 1999. Progress in establishing a human rights mandate for the Court is at a standstill. The reluctance of the EAC to enshrine the protection of human rights in its Court of Justice is a result of the risky combination of incomplete action and lack of political will in a region whose history, geography, and political composition overlaps with SADC.

 

By failing to match the human rights mandate of the ECOWAS Court of Justice and by threatening to recreate the impotence of the East African Court of Justice, Southern African leaders are jeopardising the future of SADC as a stable, safe, healthy, and attractive international community.

 

South Africa should take the lead in southern Africa by ensuring that SADC states respect the rule of law and human rights. Leadership at the sub-regional level will translate to leadership at the continental as well as international level. If SA is to have legitimacy for a seat in the UN Security Council ahead of Nigeria and be applauded for securing support for the election of the new Chair at the African Union Commission, its credentials at the sub-regional level should be consistent with adherence to the rule of law and respect for human rights.

 

HUMAN RIGHTS MANDATE

 

The current SADC Tribunal legal framework recognises its human rights jurisdiction, which though not explicit in the SADC Treaty and the Tribunal Protocol, was clarified and reaffirmed in the jurisprudence of the SADC Tribunal. The jurisprudence of the SADC Tribunal reaffirmed the right by SADC citizens and residents to litigate human rights which helped fill the lacuna in the SADC Treaty and Tribunal Protocol. The Tribunal’s judicial activism and implied provisions in the SADC Treaty and Tribunal Protocol guaranteed the human rights mandate and competence of SADC’s principal judicial body.

 

The right of SADC citizens to litigate on human rights is further recognised in a number of protocols adopted and ratified by SADC member states. For instance the Protocol on Health guarantees the right to reproductive health and acceptable standard of health; the Protocol on Education and Training provides for the right to basic and higher education; the Protocol against Corruption provides for access to information; the Protocol on the facilitation of Movement of People guarantees freedom of movement and the Gender and Development Protocol guarantees the rights to equality, dignity, life, health, education and sexual reproductive rights. These protocols and others not in this list clearly have human rights provisions and the SADC Tribunal is the judicial body mandated to interpret and implement these protocols.

 

SADC can therefore not ignore or purport to take away the human rights mandate of the SADC Tribunal as they finalise the amendment of the SADC Treaty and Tribunal Protocol. SADC should follow the ECOWAS precedent by explicitly providing for the Tribunal’s human rights mandate in the revised Protocol. Plans by SADC to remove the Tribunal’s human rights mandate pending the adoption of a human rights protocol are ill-advised.

 

If such a proposal is adopted by SADC HOSG meeting in Maputo at the August Summit, the rights of citizens to obtain justice and protection of rights will be violated. If one takes into account the painfully slow process of ratification of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights by AU states since 1998 and the reluctance to grant the East African Court of Justice a human rights mandate for the past 13 years, it will not be surprising if SADC states take many years before they adopt and ratify a human rights protocol.

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