Gerhard Erasmus, tralac Associate, discusses the future for the SADC Tribunal

The Summit in Maputo last week decided the fate of the SADC Tribunal; at least as far as individual complaints against governments for human rights violations are concerned. Newspapers reported, somewhat prematurely, the “death” of the Tribunal. The Tribunal is not off the agenda. There is an opportunity now for revisiting its jurisdictional powers in order to give the region an institution for ensuring rules-based trade and integration. Elements of the rule of law can be retained and be improved. This effort should include arrangements for the protection of the rights of natural and legal persons involved in cross border business.

The SADC political leadership has decided that the region will not have a regional human rights court. This is a very unfortunate development and a blow to the rule of law in this part of the world. The reported reaction of a spokesperson of DIRCO (the South African Ministry for foreign affairs) that the South African position on the future of the Tribunal was “neither here nor there” and that the new decision has to be respected and implemented is of particular concern. This official reaction tells perhaps more about the reality of regional politics than is usually revealed. We now know that the often hailed policy of the South African government (not to forget the constitutional mandate) to promote respect for human rights has definite limits; regional Realpolitik. The latter is about incumbency and immunity; at least in some of the neighbouring states.

For the sake of the record the history behind this saga has to be recalled:

• This Tribunal is provided for in the SADC Treaty; the “constitution” of this organization. It has been functioning, since 2005, in terms of its own Protocol.

• This Protocol is an international agreement in its own right and can only be altered in terms of the applicable amendment clause. The route now being followed (a Summit decision in 2010 to suspend operations of the Tribunal and another decision now to redesign it so to limit its jurisdiction) is unlawful in terms of SADC legal instruments and international treaty law.

• These developments were triggered by Zimbabwe’s objection to decisions by the Tribunal which found it in violation of its obligations under the SADC Treaty.

• The correctness of these rulings was confirmed in a subsequent report by an international expert appointed by SADC to investigate the matter.

• There were two cases before the Tribunal about human rights violations by Zimbabwe. The Campbell judgment involved the unlawful expropriation of private land without compensation. In the Gondo case it was found that a provision of the State Liability Act of Zimbabwe was in breach of the SADC Treaty in so far as it provided that State-owned property was immune from execution, attachment or process to satisfy a judgment debt of the state.

• These were complaints brought by Zimbabwean nationals. In both instances the Tribunal determined that Article 4(c) and Article 6(2) of the SADC Treaty required SADC Member States to comply with human rights, democracy and the rule of law.

• The SADC states drafted these provisions and ratified the Treaty which contains them. They apparently did not consider their own legal instrument worthy of compliance.

What happens now? The Tribunal will in future function under different jurisdictional rules, still to be drafted. It will only decide inter-governmental disputes; provided they are actually brought. What will such disputes be about?

Inter-state disputes are typically about the application or interpretation of the agreements concluded between the parties. In a system based on the rule of law violations of the applicable law will be adjudicated upon by an independent tribunal and effective remedies will be provided for. We would like to argue that there is an opportunity now to provide the SADC regime with a judicial arm for deciding disputes about the application or interpretation of SADC legal instruments. This is long overdue and will bring SADC in line with developments in COMESA and the EAC. There has not been a single case before the SADC Tribunal involving inter-state disputes. This is not an indication of a splendid record of compliance. It shows the need for a comprehensive legal regime to allow rules-based trade,integration and dispute settlement in SADC. And there should be awareness and expertise to pursue such opportunities.

Will private parties be protected when involved in trade and doing business in the SADC region? We sincerely hope so. The traditional approach is that governments bring international claims on behalf of their nationals. In this day and age direct standing is often provided when it comes to trade and related disciplines; or governments accept the duty to give effect to private needs for judicial settlement. There are many examples to learn from. The fact of the matter is that the global economy, regional trade arrangements and international supplies chains have altered the traditional approaches to international disputes developed a few centuries ago. WTO dispute settlement panels and the Appellate Body have created a rich jurisprudence which has elevated international commercial disputes to a level of certainty about rights in international agreements and predictability about their effect. The member states litigate on behalf of their nationals but the considerations are not about diplomatic offence, as seems to be the concern in our part of the world. It is about promoting the rules of the game about fair trade which all the parties have accepted and protecting rights of domestic players engaged in international markets. Brazil has recently started dispute settlement proceedings against South Africa; for anti dumping duties on imported chicken. There is no reason why that should unduly sour their joint political endeavours as members of the BRICS group. The EU, Japan and the USA frequently litigate against each other in Geneva.

Governments do not, as a rule, trade. They create the legal frameworks in terms of which private parties sell goods and services across borders and invest in foreign jurisdictions. The protection of such private rights via dispute settlement procedures is not a revolutionary idea. It is a necessary development in regional and global markets. In southern Africa private rights are already protected with regard to uncompetitive behaviour involving extra-territorial elements and effects. Other Regional Economic Commissions (COMESA and the EAC) have tribunals with jurisdiction over international disputes and where individuals enjoy standing.

Dispute settlement is a vital element of rules-based trade and integration. The SADC instruments (e.g. the Trade Protocol and the Protocol on Finance and Investment) repeatedly refer to dispute settlement and a role for the Tribunal in settling disputes. Annex Six to the SADC Trade Protocol provides for a panel procedure which resembles that of the WTO. SADC should retain and clarify these aspects and the hints that it will have a rules-based regime.

The SADC legal arrangement will, as a result of the Maputo decision, require fundamental formal change, amendment and redrafting. Presumably all references in the Treaty about respect for democracy and human rights will now have to be eradicated. It will be a sad day if nothing is retained in respect of other  aspects of the rule of law. On paper SADC purports to be a rules-based regime. There is an opportunity now to salvage some of this promise.

As far as the protection of basic human rights in certain neighbouring countries is concerned the struggle has to continue. It will require fundamental domestic political reform. It will probably never be feasible to protect such rights before international fora in the absence of a national legal regime permitting the same. Why would these governments accept the jurisdiction of regional (supranational) tribunals if the obvious answer lies in the adoption of a national Bill of Rights and allowing domestic court to apply it? The saga of the SADC Tribunal has taught that lesson again. Hopefully it will not be the only outcome.

Tell us what you think.

---

Comment received:

Lebo Mofolo, 24 August 2012 06:22 PM:

“Thank you for the informative article on the outcome of the SADC Summit in Maputo concerning the SADC Tribunal. I received with a measure of relief the news that the Tribunal would be kept, albeit without jurisdiction over human rights disputes. The need for a framework for the protection of Human Rights in Southern Africa is obvious and immediate, but it always concerned me that the SADC heads of State wished to conflate the regional economic integration agenda with human rights protection – an approach that other regional integration bodies around the world have been cautious not to adopt.  Perhaps in their case this approach is justifiable on account of the fact their States Parties may be party to functional stand-alone or independent regional human rights agreements and courts/tribunals (in the case of EU States Parties and most North and Latin American and Caribbean States). I can only hope that the Maputo decision will re-invigorate the debate in the region about the establishment of a worthy human rights framework which is not tied to any political, economic integration or development agenda and which identifies instead with other global and regional human rights courts. I'm curious to see what the re-vamped SADC Tribunal will look like, and especially the degree to which its constitutional framework and texts can encourage SADC citizens and institutions to take legal recourse for the resolution of disputes regarding SADC laws, especially on trade matters. As aptly noted in your article, the legal fora is one of the defining areas where the general population, through dispute settlement, can play a direct role in shaping and engendering rules based regional economic integration.”