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Joint
statement at the conclusion of the 32nd SADC Summit
Southern Africa Litigation Centre (SALC), International Commission
of Jurists (ICJ) and SADC Lawyers Association (SADC LA)
August 22, 2012
View this document
on the Southern Africa Litigation Centre website
The ICJ, SADC
LA and SALC express their deepest disappointment at the decision
taken by the SADC Summit of Heads of State and Government on the
SADC Tribunal.
The Summit's
Final Communiqué explains that the region's leaders had "resolved
that a new protocol on the Tribunal should be negotiated and that
its mandate should be confined to interpretation of the SADC Treaty
and Protocols relating to disputes between member states". That
decision effectively destroys an integral SADC organ - the
currently established Tribunal - and denies the SADC people
the right to approach the court for justice. It is, as Archbishop
Emeritus Desmond Tutu observes, "a tragedy. It is a blow against
accountable government and individual rights."
In particular,
the decision represents:
A Violation
of the SADC Peoples' Right to Access Justice and Obtain Remedies
Access to justice
is recognised as a fundamental human right in SADC states' domestic
constitutions, as well as in regional and international instruments.
Underlying the concept of access to justice are fundamental principles
of human rights including notions of equal treatment by the law,
fairness and the right to have one's cause heard. Access to justice
is a key component of good governance and adherence to the rule
of law and promotes development, responsible investment, economic
and social reform and safeguards the protection of human and peoples'
rights as guaranteed in the African
Charter on Human and Peoples Rights and other regional and international
instruments. The creation of strong, independent and accessible
courts that enable participation by citizens is key to economic
growth and poverty reduction.
A Violation
of the SADC Peoples' "Acquired Rights"
The decision
by the SADC Heads of State purports to revoke the acquired rights
of SADC citizens to access the SADC Tribunal. This right is guaranteed
in the SADC Tribunal Protocol and SADC Treaty. SADC Heads of State
have no power under the SADC Treaty to revoke an acquired right
vested in the persons enjoying that right. The doctrine of "protection
of acquired rights", which means that a person cannot be unlawfully
or unreasonably deprived of his acquired rights, is a well-established
general principle of both international and domestic law.
A Violation
of Judicial Independence
The decision
by SADC leaders to dissolve the SADC Tribunal is an attempt to reject
and reverse the judgments of its principal regional judicial body.
This is a blatant violation of judicial independence. The executive
arm of government has no right to interfere with the functions and
decisions of the judiciary. By rejecting decisions of the SADC Tribunal
and seeking to dismantle the institution, the SADC Heads of State
have demonstrated their lack of respect for the rule of law in general
and judicial independence in particular.
A Negation
of Human Rights Protection in the Region
The inability
of SADC peoples to approach either the SADC Tribunal or the African
Court means that after exhausting domestic remedies there is no
recourse at the sub-regional or continental level for victims of
human rights violations. The only regional institution now available
to SADC citizens is the African Commission on Human and Peoples'
Rights (African Commission). Regrettably the African Commission
has also been weakened by non-compliance with its decisions by most
SADC states. By dissolving the SADC Tribunal and failing to cooperate
with the African Court and African Commission, SADC's leaders have
ensured that there is no human rights protection for SADC citizens
at the regional level.
An Unlawful,
Arbitrary and Unreasonable Decision
The SADC Summit
decision disregards the recommendations and legal advice provided
by SADC's own legal advisors. SADC Ministers of Justice and Attorneys
General recommended the immediate reinstatement of the Tribunal,
and proposed amendments that would enhance judicial independence
and allow for the establishment of an appellate division within
the Tribunal. These were ignored. Independent legal consultants,
appointed to carry out the Tribunal review process, determined that
the Tribunal had been lawfully established and could not be impugned
and that its decisions were valid and binding on all SADC Member
States. Their recommendations have also been ignored.
A Set-back
for Regional Integration
Meaningful regional
integration and cooperation requires observance of common norms
and standards. Rules-based governance, allowing for predictability,
transparency and accountability is a necessary pre-requisite for
the emergence of an integrated regional community. A much diminished
Tribunal - the desired outcome of the SADC Summit -
puts in doubt SADC leaders' commitment to the regional integration
project. We call upon SADC Heads of State and Government to:
- Reverse their
18 August decision to dissolve the current SADC Tribunal and negotiate
a new protocol.
- To heed the
advice of their Ministers of Justice and Attorneys General to
immediately reinstate an accessible regional court.
- Ensure that
the SADC Tribunal has an explicit human rights protection mandate.
- Allow the
SADC Tribunal to operate whilst amendments to the protocol are
being effected.
- To comply
with decisions adopted by the SADC Tribunal since it became operational
in 2005.
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