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Dissolution of the SADC Tribunal
Research and Advocacy Unit
September 05, 2011

http://www.researchandadvocacyunit.org/index.php?option=com_docman&task=doc_details&gid=108&Itemid=90

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Background

On 17th August, 1992, the SADC2 Treaty and Declaration was signed, creating a "community" of State parties in the Southern African region in accordance with international law.3 The Treaty provided, in Article 9, for the establishment of various institutions to serve and govern SADC. The SADC Tribunal was one such institution. Article 16 of the Treaty provided that the Tribunal would be "constituted to ensure adherence to, and the proper interpretation of, the provisions of this Treaty", and that it's "composition, powers, functions, procedures and other related matters" would be prescribed in a Protocol. The relevant Protocol was signed4 on the 7th August, 2000 by the Summit, which comprises the heads of all member states.5

When the SADC Treaty was amended in 2001, the Amendment Treaty made specific reference to this Tribunal Protocol. Most importantly, for present purposes, the amendment altered the wording of Article 16, to provide that the Tribunal Protocol "shall, notwithstanding the provisions of Article 22 of this Treaty, form an integral part of this Treaty." The Tribunal Protocol was itself later amended on 3rd October, 2002.6

However, it was only in November, 2005, that the members of the Tribunal were sworn in and the Tribunal was inaugurated, operating from premises in Namibia. A further full two years passed before the first dispute was lodged with the Tribunal by a Malawian national with a claim against SADC's own Secretariat.7

In November 2008, the Tribunal handed down judgment in the landmark case of Campbell (Pvt) Ltd and Others v The Republic of Zimbabwe and Others.8 The Tribunal ruled that the Government of Zimbabwe had violated the human rights provisions of the Treaty in using race as the basis upon which to dispossess white farmers of their land. When the Zimbabwe Government twice refused to comply with the orders of the Tribunal, the Tribunal referred each instance of non-compliance to the SADC Summit for "appropriate action".9

Having accepted the 2001 Amendment Treaty, and the Tribunal Protocol, up to this point, the Zimbabwe Government10 belatedly sought to challenge the validity of the Tribunal Protocol, claiming that neither the 2001 Amendment Treaty nor the Tribunal Protocol had been validity brought into force. In August 2010, the Summit decided to limit the operations of the Tribunal, ostensibly to allow for time to consider this issue.11 To this end, it commissioned a review of the role, responsibilities, and terms of reference of the Tribunal by an independent consultant and specialist in international law, Dr. Lorand Bartels of Cambridge University.12 Action against Zimbabwe was deferred pending the outcome of the review. The Tribunal was enjoined not to entertain any new cases in the interim.

However, when the Bartels Report was presented, the Summit chose to ignore its fundamental recommendations, and, in May 2011, determined that the jurisdiction of the Tribunal was to be altered. The Summit held that appropriate legal instruments to change the jurisdiction of the Tribunal and the legal framework within which the Tribunal operates were to be prepared for presentation to the Summit in August 2012. The Tribunal was not to hear any further cases henceforth, whether pending or otherwise, and members of the Tribunal were not to be reappointed or replaced, effectively rendering the Tribunal inquorate and defunct. There is little doubt that the jurisdictional amendments will be to remove the right of private individuals to approach the Tribunal for relief against their governments.

The effect of the 2001 Amendment Treaty and the question as to whether the Amendment Treaty and Tribunal Protocol have entered into force are the given axis around which turns the decision to effectively dissolve the Tribunal and the legal disputes which have arisen. Various arguments have been advanced in this regard - most notably by Zimbabwe's Justice Minister, who first challenged the validity of the Tribunal; by Dr. Tawanda Hondora;13 by the Bartels Report; by the Southern African Litigation Centre;14 by Zimbabwe Lawyers For Human Rights;15 by the Zimbabwe Human Rights NGO Forum16, and by Counsel in the Campbell cases - J. Gauntlett SC, Prof J.L. Jowell QC and F. Pelser.17/18 The view of the latter four broadly concur and shall be collectively referred to here as Gauntlett et al.19 Some of the key legal issues raised relating to the suspension of the Tribunal, and positions adopted in respect to these issues, are discussed below.

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