The submission by the Southern African Development Community Lawyers Association (SADC LA), the International Commission of Jurists (ICJ) and the Southern Africa Litigation Centre (SALC) urges the ministers and attorneys general to agree on recommendations that protect the core mandate of the Tribunal and ensure that it is finally allowed to function again.
“SADC Ministers of Justice must defend the Tribunal because they have a duty to promote the rule of law in the region for the good of all our citizens,” said Makanatsa Makonese, Executive Director of SADC LA. “An effective Tribunal will be a huge boost to the region – by helping to protect human rights, promote trade and support economic integration.”
Using a survey of comparable regional and sub-regional tribunals, the submission also demonstrates how removing individual access and its human rights jurisdiction would leave the SADC Tribunal fatally weakened and totally out-of-step with similar Courts.
“A SADC Tribunal divested of individual access and a human rights mandate would be fundamentally out of sync with other African regional adjudicative bodies,” said Makonese. “It would also set back the African Union’s objective of achieving an African Economic Community which entails co-ordination among the regional economic communities.”
The submission also addresses concerns by some SADC member states about the relationship between the SADC Tribunal and their own domestic courts.
“The argument that the Tribunal usurps the functions and authority of national courts is wrong,” said Arnold Tsunga, Executive Director of ICJ Africa. “The Tribunal is an international court interpreting and applying SADC Community law voluntarily adopted by SADC states and it does not hear direct appeals from domestic courts which apply municipal law.”
SADC Ministers of Justice and Attorneys General are meeting in Luanda as part of a process begun when the Tribunal was effectively suspended in August 2010 after a SADC communiqué announced that an independent review of the role, functions and terms of reference of the Tribunal would be undertaken and that no new cases would be heard pending the completion of the review.
Despite the fact that the initial announcement stipulated that the review would take no longer than six months, nine months later, in May 2011, the SADC Heads of State and Government announced at an Extraordinary Summit that the suspension of the Tribunal would continue for another year.
The Ministers of Justice and Attorneys General of the SADC states were tasked with conducting another review and providing recommendations relating to proposed amendments to the Tribunal Protocol at the SADC Summit to be held in August 2012.
The final decision regarding the role, functions and terms of reference of the Tribunal will be made at that meeting – two years after the decision to initiate a review was first made.