South Africa’s role in the denial of justice in southern Africa

Former president Nelson Mandela once stated that “South Africa’s future foreign relations will be based on our belief that human rights should be the core concern of international relations.”

This oration has been tested several times by successive governments of South Africa, including in the area of access to justice and legal remedies.

With respect to the rights of citizens to access the court, South Africa’s participation in the decisions of the Southern African Development Community (SADC) Summit in 2011 and 2014 has put into question whether indeed South Africa’s foreign relations are based on the belief that human rights are at the core of the country’s international relations.

It all began in August 2011 when the then president of South Africa, Jacob Zuma participated in the decision of the SADC Heads of State Summit to suspend the operations of the SADC Tribunal. The judges of the tribunal were relieved of their duties and the SADC Tribunal ceased to operate.

Then in August 2014, the president together with the other SADC heads of states and government adopted a new protocol on the SADC Tribunal which limits the jurisdiction of the tribunal to inter-state disputes only. From a human rights perspective, this is a devastating blow to accountability in southern Africa.

From its inception in 2001, the Tribunal has had the jurisdiction to hear complaints from both individuals and states. This means that individuals could approach the Tribunal to access relief when SADC Member States violated their human rights.

Under its terms, the 2014 protocol must be signed and ratified by two-thirds of the SADC states. It has not reached the requisite number of ratifications and, therefore, is not yet in force. However, individuals are still prohibited from accessing the court as the Tribunal has been de facto suspended since 2011. It is no longer operational and there is no end in sight to this suspension. If the 2014 protocol was to enter into force, this would make the deprivation of individual access to the tribunal permanent.

The lack of a functioning human rights court in southern Africa makes the region an anomaly on the African Continent. East Africa has the East African Court of Justice whereas West Africa has the Economic Community of West African States (Ecowas) Court of Justice which can both adjudicate issues related to fundamental rights although to different extents. With the SADC Tribunal suspended, southern Africa is left without such a mechanism, leaving SADC citizens without any regional court to hold states accountable for violations of human rights.

The tragedy of the SADC Tribunal is that the motivation of the SADC Summit to dismantle the tribunal occurred exactly because the tribunal was doing its job and holding a member state accountable for violating human rights. The SADC Summit began to question the tribunal’s competence to adjudicate individual human rights cases after the tribunal found against the government of Zimbabwe in a number of cases filed by individuals whose land had been illegally expropriated by Zimbabwe.

At the Tribunal, Zimbabwe defended itself at all levels of the adjudication process with no success. After it lost, Zimbabwe openly refused to co-operate with the decision of the tribunal and, instead, it launched a campaign within members of SADC to dismantle the tribunal and remove its human rights jurisdiction.

It is disheartening to observe that all SADC countries joined Zimbabwe in this unfortunate scheme and, in addition, did so by ignoring the provisions of the SADC Treaty. The founding treaty of SADC explicitly states that the tribunal shall operate under the principles of human rights, democracy and the rule of law and prohibits member states from taking steps to jeopardise the SADC’s principles.

Instead of respecting the decision of a validly established court, the SADC Summit’s immediate response in suspending the tribunal was directly at odds with the very principles that the organisation was based and founded upon.

The South African president’s participation in both the 2011 suspension and 2014 protocol have been challenged in South African courts. In March 2018, the High Court of South Africa found that the president’s conduct in participating in this illegal exercise was unconstitutional. The Constitutional Court will hear arguments on appeal on 30 August 2018. Interestingly, the state is not appealing the decision that the president illegally participated in the decision of the summit which suspended the operations of the tribunal in 2011.

This concession by the state, and finding by the High Court, that the suspension was in conflict with both the SADC Treaty and South African Constitution confirms that there is a continuing legal obligation for the tribunal to be in operation and provide valuable access to citizens throughout southern African to vindicate their human rights.

This case demonstrates what happens when the South Africa government does not make human rights a core concern of its international relations: the destruction of an important human rights mechanism due to the grievances of one SADC member state.

Whatever the outcome of the findings of the Constitutional Court, the South African government should focus its energy on lobbying its counterparts within the SADC region to re-open the tribunal.

As leader in the region, South Africa must be at the forefront in ensuring that the foundational principles of human rights and the rule of law protected in the SADC Treaty are fulfilled in SADC’s operations. DM

Suzgo Lungu and MacKennan Graziano, Southern Africa Litigation Centre