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BOCISCOZ press statement on the decision of the May 2011 Extraordinary Summit of Heads of State and Government of SADC and the June 2011 letter of the former Judges of the SADC Tribunal
Botswana Civil Society Solidarity Coalition for Zimbabwe (BOCISCOZ)
July 04, 2011

The Botswana Civil Society Solidarity Coalition for Zimbabwe (BOCISCOZ) would like to express its extreme disappointment in the far-reaching decisions concerning the SADC Tribunal, taken by The Extraordinary Summit of Heads and Government of the Southern Africa Development Community (SADC) on 20 May 2011 in Windhoek, Namibia. The decisions taken were the following:

• Judges whose terms had expired in August 2010 would not be reappointed
• Members of the tribunal whose terms of office expire in October 2011 will not be reappointed
• The tribunal will be suspended, with a moratorium on hearing new or pending cases
• Ministers and Attorneys General will initiate a process to amend the relevant SADC legal instruments.

This process is to be concluded in August 2012. These decisions effectively dissolve the tribunal in its present form. They were made despite the holding in February 2011 by consultants WTI Advisors Ltd, Geneva, an affiliate of the World Trade Institute that the SADC Tribunal was set up and its protocols established in accordance with international law. The investigation into the legitimacy of the SADC Tribunal had been sparked by the refusal of the Government of Zimbabwe, to accept the ruling of the Tribunal in Mike Campbell (Pvt) Ltd and Others v. Republic of Zimbabwe (2/2007) [2008] SADCT 2 (28 November 2008). The Tribunal ruled that the Government of Zimbabwe had violated the SADC Treaty by denying access to the courts and engaging in racial discrimination against white farmers whose lands had been confiscated under the land reform programme in Zimbabwe. The Tribunal had recognised that the case dealt with human rights, democracy and the rule of law, which are the binding principles for the members of SADC. The Government of Zimbabwe refused to comply with the judgments of the Tribunal in 2008 and 2010 in Campbell and Another v Republic of Zimbabwe (SADC) (T) 03/2009) SADCT 1 (5 June 2009) and Fick and Another v Republic of Zimbabwe (SADC (T) 01/2010) [2010] SADCT 8 (16 July 2010).

At a recent seminar hosted by BOCISCOZ in June 2011, Nicole Fritz, The Director of the Southern Africa Litigation Centre (SALC) reported that current discussions about the amendment of the relevant SADC legal instruments include the blocking of access of individuals to the Tribunal. BOCISCOZ is concerned that it appears that both the Governments of Botswana and Zimbabwe support this approach. We wish to express in the strongest terms, serious concern about the potential denial of individual citizens of SADC, including Batswana, taking their matters to the SADC Tribunal when they have failed to find justice in their own courts. There is need for an independent regional court for use by all the citizens of the SADC region.

BOCISCOZ calls upon the Government of Botswana to support the reinstatement of the Tribunal, the resumption of the hearing of cases, and access for individuals to the tribunal.

Furthermore, BOCISCOZ supports the concerns raised by the four (4) judges whose terms expired in August 2010, and who following the decisions by the summit will not be reappointed. They are demanding compensation from SADC on the grounds that the dissolution of the tribunal is arbitrary and illegal. The Judges are Justice Ariranga Pillay (Mauritius), Justice Rigoberto Kambovo (Angola), Justice Onkemetse Tshosa (Botswana) and Justice Frederick Chomba (Zambia). In their letter of 13 June 2011, addressed to the Executive Secretary, Dr. Topaz Augusto Salamao, they state that "the decision of the Summit ... (barring the taking on of new cases and the hearing pending cases)... is clearly illegal and ultra vires". They argue that the Summit "has no power to restrict the jurisdiction of the Tribunal" and that the decisions 'paralyse' the Tribunal in hearing cases, which violates the "fundamental principle of access to justice". The decisions are also "in contravention of Article 4(c) of the SADC Treaty" with particular reference to the principles of "human rights, democracy and the rule of law". The four (4) former Judges also argue that the decisions have "been made in bad faith".

They ask why the issue of the jurisdiction of the Tribunal was called into question, rather than the non-compliance of Zimbabwe following the Campbell decision. The decisions of the Tribunal are binding on member states and appropriate actions should have been taken against Zimbabwe, the Judges point out. They demand compensation for "the prejudice, both material and moral, caused to the President and Members of the Tribunal whose term of office was not renewed."

BOCISCOZ calls upon the Government of Botswana to recognise that limiting access to the Tribunal to intra-state matters to the exclusion of individuals from SADC, weakens the rule of law within our region. For the promotion and protection of human rights, democracy and the rule of law, BOCISCOZ, together with southern african civil society, strongly urges the Government of Botswana to support the call for reinstatement of the SADC Tribunal at the next SADC Summit of Heads of State and Government in August 2011.

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