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Fate of SADC Tribunal still hangs in the balance as Ministers of
Justice meet in Angola
The
Southern Africa Litigation Centre (SALC)
June 12, 2012
With Ministers
of Justice and Attorneys General from the Southern Africa Development
Community (SADC) meeting in Luanda until June 15th to discuss the
future of the SADC Tribunal, three legal bodies have called on them
to safeguard the Tribunal and the rule of law in the region by ensuring
that access to the Court by private individuals is retained and
that its human rights mandate is strengthened rather than scrapped.
The submission
by the Southern African Development Community Lawyers Association
(SADC LA), the International Commission of Jurists (ICJ) and the
Southern Africa Litigation Centre (SALC) urges the ministers and
attorneys general to agree on recommendations that protect the core
mandate of the Tribunal and ensure that it is finally allowed to
function again.
"SADC
Ministers of Justice must defend the Tribunal because they have
a duty to promote the rule of law in the region for the good of
all our citizens," said Makanatsa Makonese, Executive Director
of SADC LA. "An effective Tribunal will be a huge boost to
the region - by helping to protect human rights, promote trade
and support economic integration."
Using a survey
of comparable regional and sub-regional tribunals, the submission
also demonstrates how removing individual access and its human rights
jurisdiction would leave the SADC Tribunal fatally weakened and
totally out-of-step with similar Courts.
"A SADC
Tribunal divested of individual access and a human rights mandate
would be fundamentally out of sync with other African regional adjudicative
bodies," said Makonese. "It would also set back the
African Union's objective of achieving an African Economic
Community which entails co-ordination among the regional economic
communities."
The submission
also addresses concerns by some SADC member states about the relationship
between the SADC Tribunal and their own domestic courts.
"The argument
that the Tribunal usurps the functions and authority of national
courts is wrong," said Arnold Tsunga, Executive Director of
ICJ Africa. "The Tribunal is an international court interpreting
and applying SADC Community law voluntarily adopted by SADC states
and it does not hear direct appeals from domestic courts which apply
municipal law."
SADC Ministers
of Justice and Attorneys General are meeting in Luanda as part of
a process begun when the Tribunal was effectively suspended in August
2010 after a SADC communiqué announced that an independent
review of the role, functions and terms of reference of the Tribunal
would be undertaken and that no new cases would be heard pending
the completion of the review.
Despite the
fact that the initial announcement stipulated that the review would
take no longer than six months, nine months later, in May 2011,
the SADC Heads of State and Government announced
at an Extraordinary Summit that the suspension of the Tribunal would
continue for another year.
The Ministers
of Justice and Attorneys General of the SADC states were tasked
with conducting another review and providing recommendations relating
to proposed amendments to the Tribunal Protocol at the SADC Summit
to be held in August 2012.
The final decision regarding the role, functions and terms of reference
of the Tribunal will be made at that meeting - two years after
the decision to initiate a review was first made.
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