Building vibrant and tolerant democracies
All Southern African Development Community (SADC) member states have reaffirmed their commitment to the SADC Tribunal, said Sackey Shangala of the Law Reform and Development Commission (LRDC) - following a meeting of justice ministers and attorneys general in Luanda to discuss the future of the Tribunal, which was effectively suspended in August 2010.
Shangala said the ministers have now completed their report on the Tribunal, which is to be handed over to the SADC Council of Ministers and the SADC Summit to be held in August in Maputo. He said the proposals - in the form of various options still to be discussed by a variety of stakeholders - are that the Tribunal continue under a different mandate.
Three legal bodies - the SADC Lawyers Association, the International Commission of Jurists, and the Southern Africa Litigation Centre - made submissions to the ministers' meeting and asked that they safeguard the Tribunal. These bodies asked the ministers to uphold the rule of law in the region, to ensure access to the court by private individuals, and to strengthen the Tribunal's human rights mandate rather than having that scrapped.
Shangala said the human rights mandate was indeed discussed by the ministers, with all member states holding the view that human rights form an integral part of their domestic judicial system. Individual access to the Tribunal, he said, would also be provided for in the new statutes.
In their submissions to the ministers, the legal bodies said a removal of individual access and the Tribunal's human rights jurisdiction would leave the Tribunal "fatally weakened and totally out of step" with similar courts like other African adjudicative bodies. SADC lawyers association executive director Makanatsa Makonese was of the view that an effective Tribunal would be a huge boost to the region, helping to protect human rights, promote trade and support economic integration.
She said a weak Tribunal would set back the African Union objectives of achieving an African economic community that entails coordination among regional economic communities.
Minister of Justice Pendukeni Iivula-Ithana said at a Walvis Bay meeting last year that the Tribunal was in conflict with international law principles, including a number of SADC member states' constitutions. But Arnold Tsunga of the International Commission of Jurists disagreed, saying the Tribunal is an international court interpreting and applying SADC community law voluntarily adopted by SADC member states, and does not hear direct appeals from domestic courts.
At a July, 2012 meeting of justice ministers, Iivula-Ithana also said the ministers had no intention to do away with the Tribunal, but simply wished "through appropriate measures to make adjustments from time to time, to fit our interests". She had also said that SADC member states were entitled to "fine-tune regional bodies", and that these instruments were to serve the member states. "The instruments serve us, they are for us, and this is not a reversible position," Iivula-Ithana said last year.
Shangala added that Namibia as the host of the Tribunal needs clarity on the court's role. "As the host country our interest is that the Tribunal's role be defined," said Shangala. "We are very supportive of the Tribunal. All countries have unanimously supported it."
Opinions were that the Tribunal was suspended after Zimbabwe had repeatedly flouted orders made by the regional court. When Zimbabwe was referred to the SADC Council of Ministers to determine appropriate action for its non-compliance with the Tribunal's orders, SADC opted to review the court instead.
"It is not about Zimbabwe," countered Shangala, who said that there was a deliberate campaign to turn it into a Zimbabwe issue. "People must stop thinking that it is because of Zimbabwe," he insisted. "It is unfortunate and confusing and sends the wrong message."
Catherine Sasman writes for the Namibian newspaperShareThis