Will South Africa fight for the SADC Tribunal’s revival?

First published by ISS Today

Is there any chance the short-lived Southern African Development Community (SADC) Tribunal that was so disgracefully terminated in 2014 could be resurrected? That would be a great victory for regional justice.

South Africa’s Constitutional Court last year reversed former president Jacob Zuma’s signature of the protocol that effectively killed the tribunal. The apex court’s ruling has evidently inspired a campaign across the region to revive the tribunal in its original fully empowered form.

The Windhoek-based tribunal, which was theoretically founded in 1992 but only began operations in 2005, once had the power to hear complaints from individual SADC citizens against their own and other governments. But then it ruled in 2007 and 2008 that the seizure of white-owned farms by then Zimbabwean president Robert Mugabe’s government was illegal.

A furious Mugabe retaliated by launching a regional campaign to have the tribunal shut down. In 2010 Zuma and all the SADC leaders – none of whom no doubt relished the prospect of being on the receiving end of judgments – decided to suspend it.

In 2014, they terminated its power to adjudicate human rights cases brought by SADC citizens. The tribunal’s mandate was reduced to merely dealing with inter-state disputes. But SADC hasn’t managed even that. The tribunal, though legally still extant, is now effectively extinct, with no judges or staff. Several SADC states haven’t even ratified the protocol.

Then, at the behest of civil society activists, South Africa’s High Court and Constitutional Court ruled last year that the suspension of the tribunal and Zuma’s signing of the 2014 protocol was “unconstitutional, unlawful and irrational”. It directed Zuma’s successor, Cyril Ramaphosa, to withdraw South Africa’s signature from the 2014 protocol, which he duly did at last month’s SADC summit in Dar es Salaam.

Similarly, the Tanzanian High Court recently ruled that the Tanzanian government had violated its obligations under the SADC Treaty. It did so by participating in the suspension of the tribunal and replacing it with the new 2014 protocol which the court said was contrary to the SADC Treaty.

A Southern Africa Civil Society Forum meeting on the sidelines of the SADC summit in Dar es Salaam was evidently inspired by the decisions of both courts. It called for a “reinstated SADC Tribunal with its original mandates and competences” and has now launched a regional campaign to this end.

Kaajal Ramjathan-Keogh, Executive Director of the South Africa-based Southern Africa Litigation Centre, which supported the legal cases against Zuma, has applauded Ramaphosa for withdrawing South Africa from the 2014 protocol.

In a statement on the centre’s website, she said he should “exercise his leadership in calling for the reinstatement of the SADC Tribunal to its original mandate which would permit SADC citizens and residents to access the court and to challenge human rights violations”.

Ramjathan-Keogh said the Tanzanian High Court’s ruling reinforced the view that decisions of the SADC summit “must be founded in law”. She noted that for the original tribunal to be revived, any other SADC member states that had signed the 2014 protocol would also have to withdraw their signatures.

But is South Africa up for such a bold move, which would require Ramaphosa to challenge his peers across the region? Or will Ramaphosa, having fulfilled his legal obligation by withdrawing South Africa’s signature from the 2014 protocol, be content to leave it at that, given all his other pressing problems?

His timidity on several big domestic challenges suggests he will follow the latter course. Although one senior Pretoria official who wished to remain anonymous told ISS Today that the government might assess the possibility of reviving the tribunal with all its original powers. He went as far as saying that the Department of International Relations and Co-operation had already asked the Department of Justice to engage its SADC counterparts to begin the process.

Ramjathan-Keogh told ISS Today that the Southern Africa Litigation Centre strongly believed “South Africa can leverage its counterparts to understand that they conspired to jointly and illegally suspend the tribunal”.

“So the Constitutional Court decision must be used as a yardstick for [the international relations department], justice department and the Presidency to take the lead on a process for the reopening of the tribunal.” She said South Africa should work jointly with Tanzania, which should also be following up on its High Court decision that the suspension of the tribunal was unconstitutional. She said it was likely that Botswana would support this effort.

And Pretoria could, one might add, introduce an element of regional competitiveness into such a campaign. West Africa is showing up Southern Africa because the equivalent court of the Economic Community of West African States still enjoys the powers that the SADC Tribunal lost, to provide justice to individual citizens when such justice has been denied them by their own governments.

The best approach would be for the governments that illegally signed the 2014 protocol to follow South Africa’s good example by voluntarily “unsigning” it. We know that at least some of them – such as Zimbabwe, which was responsible for the original bad decision – will no doubt be very reluctant to reverse course.

But if they don’t do it voluntarily, then their courts may have to instruct them to do so, as South Africa’s did. It emerged at the civil society conference in Dar es Salaam last month that regional non-governmental organisations are girding themselves to take the legal fight right across the region, one country at a time.

One would certainly hope so. The death of the SADC Tribunal was a great defeat for justice in this region. The route proposed by civil society organisations might not be the shortest or easiest, but it would certainly help. DM

Peter Fabricius is an ISS Consultant