At the recent 34th Southern Africa Development Community (SADC) Summit of Heads of State and Government, a new protocol to the SADC Tribunal was adopted. This development effectively put an end to the SADC Tribunal as it was once known – as a Justice mechanism for southern Africa citizens.

SADC is an inter-governmental body comprising of 15 Member States whose common ambition is to foster “development, peace and security, and economic growth, to alleviate poverty, enhance the standard and quality of life of the peoples of southern Africa.” In its original format, the SADC Tribunal was designed to “provide dynamic, efficient and accessible judicial services contributing to the consolidation of regional integration and the fulfillment of the principles enshrined in the SADC Treaty.”

In its preamble, the new protocol claims to be an outcome of a process that included “review of the role, responsibilities and terms of reference of the SADC Tribunal [which] led to recommendations that require a new protocol”.

Interestingly, the review commissioned by SADC Heads in 2010 said no such thing. On the contrary it explicitly supports, in its recommendations, the Tribunal’s retention of jurisdiction over disputes between natural and legal persons and SADC member states. Nowhere in the review report is there a recommendation for the Tribunal – as it was then – to be dissolved and a new protocol to be adopted.

So, how did SADC Heads arrive at their current decision?

The SADC tribunal was suspended in 2010 to allow for the review of its powers and functions. In 2012, following the release of the review report, the 32nd SADC Heads of State and Government Summit announced that a protocol for a new tribunal needed to be negotiated and the tribunal’s jurisdiction would be limited to the adjudication of inter-state disputes.

SADC Heads, undeterred by the ‘unfavorable’ review and recommendations of independent legal experts they had commissioned, turned to their technical experts – Ministers of Justice and Attorneys-General. Obviously mindful of the decision expected by their superiors, these experts were still of the view that the SADC Tribunal be one that guarantees access for SADC citizens.

In fact, they went on to propose a ‘middle-ground’ that would narrow individual access vis-a-vis human rights matters by proposing that each Member State would voluntarily sign on to such jurisdiction. This proposal, together with other recommendations, was relegated to the dustbin.

Photo: Reuters
Photo: Reuters

Implications of the decision
The new SADC Tribunal, therefore, has very serious implications for SADC citizens and impacts negatively on their right to access justice and to seek effective legal remedies at regional level. Hence, the decision taken by the SADC Heads in Victoria Falls last August should be strongly condemned and unrelenting demands made for Tribunal access by non-State actors.

If this does not happen, the region will continue to experience a decline in the promotion and protection of human rights. Furthermore, the absence of supra-national mechanisms for Justice will leave SADC citizens vulnerable to acts of impunity perpetrated by their leaders. It is a well-known fact, after all, that weak democratic institutions, especially underfunded and threatened Judiciaries, have resulted in the failure of many to access Justice at a domestic level.

It makes no sense, therefore, for the (at least) 270 million SADC citizens to be held at ransom by a mere 15 Heads of State whose decision-making is informed more by the need for self-preservation than the upholding of democratic values such as respecting the rule of law. Against this backdrop, the decision taken by SADC Heads against an accessible SADC Tribunal is not only undemocratic but also exemplifies the selfishness, arrogance and contempt with which they hold SADC citizens.

The validity, significance and importance of supra-national institutions cannot be overemphasized. In spite of this, and prior to the suspension of the SADC Tribunal, the very same SADC Heads, together with their African Union (AU) counterparts, approved an impunity escape clause in the Protocol on Amendments to the Protocol on the Statute of the African Court for Human and People’s Rights.

The less said about the disdain with which the Pan African Parliament (PAP) is treated the better.

The Turnhalle building in Windhoek, Namibia, housed the Tribunal court of the Southern African Development Community (SADC). In one of its first cases, Mike Campbell (Pvt) Ltd and Others v Republic of Zimbabwe, the Tribunal ruled in 2007 and 2008 that the government of Zimbabwe could not evict farmer Mike Campbell from his land
The Turnhalle building in Windhoek, Namibia, housed the Tribunal court of the Southern African Development Community (SADC). In one of its first cases, Mike Campbell (Pvt) Ltd and Others v Republic of Zimbabwe, the Tribunal ruled in 2007 and 2008 that the government of Zimbabwe could not evict farmer Mike Campbell from his land

The fate of all liberation movements
There has never been an opportune time than now, therefore, to call the bluff on SADC Heads of State’s increasingly tired and weak defense of national liberation as justification for turning democratic institutions into inaccessible and oppressive mechanisms for their own expedience. Repeated manipulation of democratic systems and mechanisms by many SADC countries has left most citizens disenfranchised from enjoying the fruits of liberation, leaving that benefit only to an avaricious coterie of elites in power.

One text is deeply instructive in this regard. It is an excerpt from the great revolutionary and postcolonial theorist, Frantz Fanon:

“The living party, which ought to make possible the free exchange of ideas which have been elaborated according to the real needs of the mass of the people, has been transformed into a trade union of individual interests. Since the proclamation of independence the party no longer helps the people to set out its demands, to become more aware of its needs and better able to establish its power.

“Today, the party’s mission is to deliver to the people the instructions which issue from the summit. There no longer exists the fruitful give-and-take from bottom to the top and from the top to the bottom which creates and guarantees democracy in a party. Quite on the contrary, the party has made itself into a screen between the masses and the leaders. There is no longer any party life, for the branches which were set up during the colonial period are today completely demobilised.”

This fate, which has befallen all liberation movements in the region, has been transmuted to SADC as an institution, with devastating consequences for citizens’ participation and involvement in the bloc’s processes. The result has been a disintegrated, divided and inactive regional citizenry that is too weak to effect any meaningful change.

Despite the language of “regional integration”, “active citizenship” and “economic development” being touted at various SADC meetings, including those presided over by organized civil society, the opposite obtains. Closed borders, increasing acts of xenophobia and the absence of popular participation mirror the failures of SADC to live up to its own aspirations.

It has to be asked, therefore, where the SADC citizens are and where their voice is. Is the absence of citizens’ voices testimony that governments tend to organise better than ordinary people? The muted outcry following the re-introduction of a weaker and inaccessible SADC Tribunal bears testimony to this fact.

SADC belongs to its people and not only the powerful elites. Hence, the systematic disenfranchisement of regional citizens from social, economic and political decision-making should not be allowed to continuously undo active citizenship. SADC is in crisis and the last thing it needs are weak democratic institutions.

Sadly, the current SADC Tribunal, in its form and format, is one.