Bill Watch32/2014SADC Summit & NewSADC Tribunal Protocol28 August 2014

BILL WATCH 32/2014

[28th August 2014]

Both Houses of Parliament Are Sitting This Week

34th SADC Summit: Victoria Falls: 17th & 18th August

The SADC Heads of State and Government met at Victoria Falls on 17th and 18th August in the organisation’s 34th Summit. [Summit communiqué dated 18th August available from Veritas at the addresses given at the end of this bulletin.]

President Mugabe took over as SADC chairperson from President Mutharika of Malawi at the beginning of the meeting. President Khama of Botswana is the new deputy chairperson. Both will hold office for the next year, until the 2015 regular annual SADC Summit.

SADC Organ on Politics, Defence and Security Co-operation President Zuma of South Africa took over as chairperson of the Organ and Prime Minister Thabane of Lesotho as deputy chairperson. The third member of the Organ Troika is its immediate previous chairperson, President Pohamba of Namibia.

Attendance Twelve heads of state and government attended. Angola and Zambia were represented by their vice-presidents, Swaziland by its Prime Minister. Madagascarwas present for the first time in several years, following its successful post-coup election and the consequential lifting in February of its suspension from SADC.

Summit theme “SADC Strategy for Economic Transformation: Leveraging the Region’s Diverse Resources for Sustainable Economic and Social Development through Value Addition and Beneficiation”.

Zimbabwe not an agenda item The situation in Zimbabwe, for the first time in years, was not under special consideration and was not mentioned in the Summit communiqué. Nor did the communiqué record any repetition of the previously routine call for the lifting of all forms of sanctions imposed on Zimbabwe.

New SADC Tribunal Protocol signed According to the Summit communiqué, the Summit adopted the new Protocol on the SADC Tribunal [see further below].

Other protocols signed Three other protocols were signed:

  • Protocol on Environmental Management for Sustainable Development;
  • Protocol on Employment and Labour; and
  • Declaration on Regional Infrastructure Development.

Trade in Services Protocol of 2012 again rejected by Namibia and South Africa At the 2012 regular Summit this protocol was signed by most SADC members, but not by Namibia and South Africa,. When, during the signing ceremony at this Summit, the protocol was again presented to Presidents Pohamba and Zuma for signature, both declined.

Maiden and farewell speeches Presidents Mutharika of Malawi and Rajaonarimapianina of Madagascar, both of whom were successful in recent presidential elections, were attending their first Summit as Heads of State. They delivered their maiden SADC Summit speeches. Presidents Guebuza of Mozambique and Pohamba of Namibia made farewell statements; both are due to go out of office before the end of this year, after serving the maximum two terms allowed by the constitutions of their countries. In his remarks President Guebuza reminded the gathering that, uniquely, President Mugabe had been at every one of the 34 annual Summits held since SADC’s predecessor [the Southern African Development Coordination Conference – SADCC] came into being in 1980.

The New Protocol on the SADC Tribunal

Background

The SADC Tribunal was launched in November 2005 in Windhoek, Namibia. Its establishment was provided for in the SADC Treaty, and its jurisdiction and powers were spelled out in a supplementary Protocol which empowered the Tribunal to deal with a wide range cases, ranging from disputes between SADC States over the interpretation of the SADC Treaty to disputes between individuals and the governments of individual SADC States.

The first case at the Tribunal was lodged by a Malawian citizen in August 2007. It was followed by other cases, including several from Zimbabwe citizens complaining about breaches of their rights by the Zimbabwean government – some of them, but not all, raising the handling of the land reform programme.

A series of Tribunal decisions against it – in cases such as Luke Thembani and Campbell and Others – prompted the Zimbabwean government to question the constitution and legality of the Tribunal at SADC Summit level. This led to Summit decisions directing the regional Ministers of Justice/Attorneys-General “to undertake a review of the operations of the Tribunal with a view to strengthening it and improving its terms of reference” [2009] and suspending the operations of the Tribunal [2010]. Notwithstanding the fact that the review produced almost unanimous legal opinions disagreeing with the Zimbabwean government’s position, SADC Heads of State and Government agreed that the Tribunal’s jurisdiction had to be modified and accordingly mandated the Committee of Ministers of Justice/Attorneys-General to revise the Tribunal Protocol. The 2013 Summit in Malawi refined the terms of reference given to the Committee, instructing it to fast-track the negotiation of a new Protocol that would

  • confine the Tribunal to the interpretation of the SADC Treaty and protocols relating to disputes between member States, and
  • specify that the Protocol would only enter into force once ratified by two-thirds of member States.

The Committee was alsotasked with identifying provisions of the SADC Treaty and other protocols and legal instruments that would require consequential amendments.

The draft of the new Protocol was finalised by the Committee at a meeting in the DRC the week before the Victoria Falls Summit.

The SADC Council of Ministers, meeting in Victoria Falls in the days before the Summit, approved the draft and recommended its adoption by the Summit of Heads of State and Government at their meeting.

The Heads of State and Government, as recorded in the Summit communiqué, adopted the Protocol on 18th August.

Contents of the new Protocol

Although the text of the Protocol has not yet been made public, it is known that, in accordance with the Committee’s mandate, the jurisdiction of the Tribunal will be confined to interpretation of the SADC Treaty and Protocols relating to disputes between SADC member states. This means that the Zimbabwean government’s rejection of the Tribunal’s decisions against it has finally resulted in an emasculated new-look Tribunal that, unlike its predecessor, will not be allowed to hear complaints by individuals against their own governments.

The coming into operation of the Protocol, as required by the Committee’s mandate,is subject to its having been ratified by two-thirds of the fifteen SADC member States.

Present status of the new Protocol – not in force

The SADC Lawyers Association, whose office-bearers attended the Summit, has reported that some member States opted not to sign the Protocol at present. [Perhaps this was why the Summit communiqué said that this Protocol was “adopted” and the other three protocols were “signed”.] The absence of some signatures is bound to hold up the coming into operation of the Protocol. There is also the possibility of an additional delay caused by further legal wrangling over the vexed question whether the SADC Treaty permits this particular Protocol to impose a ratification requirement; it remains to be seen what consequential amendments to the Treaty the Committee of Ministers of Justice/Attorneys-General has recommended on this point.

All in all, however, it can be said that the Protocol is definitely not yet in operation and that the new-look SADC Tribunal is unlikely to be launched any time soon. There is still time for action to try and ensure a more effective regional court.

Regional Civil Society and the New Protocol

The regional civil society campaign against the emasculation of the Tribunal continued right up to the Summit. The SADC Lawyers Association [SADCLA] in an eve of Summit statement pointed to the fact that the transformation of the Tribunal had been brought about without SADC having complied with its obligation under Article 23 of the SADC Treaty to ensure the involvement in the process of the peoples of the region and key stakeholders – the private sector, civil society, NGOs and workers and employers’ associations.

SADCLA has also urged national law societies to launch court proceedings in their countries to stop their governments from accepting the Protocol. The law societies in Tanzania and Malawi have already responded to this call.

Weakening of SADC Tribunal Weakens Arguments Against the ICC

One of the main arguments some African countries have against the International Criminal Court [ICC] is that prosecutions of individuals for genocide, crimes against humanity and war crimes which are referred to ICC can best be dealt with, if they have been committed in Africa, by African courts, if not at national level at regional or continental level. With the weakening of the SADC Tribunal vis-à-vis human rights abuses, with the African Court of Human and Peoples Rights in Arusha in existence since 2009 [under an AU protocol ratified by only 27 of 54 AU member states], and with the proposed merged African Court of Justice and Human Rights a long way from being launched, many African states will continue to feel that the ICC is the best recourse to justice they can get.

[Note: Zimbabwe has signed but not ratified the 1998 AU Protocol on the Court of Human and Peoples Rights and the 2003 Protocol on Court of Justice of the African Union, and not even signed the 2008 Protocol on the African Court of Justice and Human Rights, which is intended to bring about a merger of the two other courts.]

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