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For Mugabe's sake, SADC leaders sabotage SADC Tribunal and undermine the rule of law
The Southern Africa Litigation Centre (SALC)
May 22, 2011

The leaders of the Southern African Development Community (SADC) have dealt a potentially fatal blow to the rule of law in the region by suspending the work of the SADC Tribunal for another year - ignoring the recommendations of an independent study commissioned by SADC itself, their duty to the citizens of the region and the devastating impact of this decision on human rights and peoples' ability to access justice.

"By sabotaging the Tribunal, SADC leaders have shown exactly where their loyalties lie - in protecting their friend, President Mugabe, from the consequences of his regime's illegal activities rather than defending the rights of SADC's 200 million citizens," said Nicole Fritz, Director of the Southern Africa Litigation Centre (SALC).

SADC Heads of State and Government took the decision to suspend the Tribunal at an Extraordinary Summit in Windhoek on Friday. The summit was expected to be the culmination of an already-drawn out process that began in August last year, when the leaders called for a review of the role, functions and terms of reference of the Tribunal. This was occasioned by Zimbabwe's attack on the Tribunal, which had ruled against Mugabe's government in a series of cases dealing with land disputes.

However, bowing to further pressure from Zimbabwe, the region's rulers have now given their Ministers of Justice and Attorney Generals another 12 months to review it all over again - during which time the moribund Tribunal will hear no new cases.

"It is clear that SADC leaders have no respect for their own regional court or international legal norms and feel that they can violate the Tribunal's independence, the rule of law and the right of southern Africans to access justice with total impunity," said Fritz. "Instead of sanctioning Zimbabwe, our leaders have imposed legal sanctions on all of us - preventing us from seeking legitimate legal redress at a regional level."

Testimony to the malign influence of the Mugabe regime at the summit was the visible presence of Zimbabwean security agents. In an unprecedented joint operation with Namibian police officers, they harassed and intimidated Zimbabwean civil society representatives. On the afternoon of the summit, SALC's Lloyd Kuveya, Irene Petras of Zimbabwean Lawyers for Human Rights, Joy Mabenge of the Institute for Democratic Alternatives for Zimbabwe and journalist Jealousy Mawarire were arrested in the hotel lobby and subjected to interrogation by Namibian police and Zimbabwean security agents.

"The Namibian police seemed to be acting at the behest of the Zimbabwean officials and it was obvious that their intent was to intimidate and harass those of us looking to secure the SADC summit's compliance with its legal obligations in respect of the Zimbabwean political process and the Tribunal," said Kuveya, who works for SALC's Media Defence Programme.

SADC leaders suspended the Tribunal until May 2012 despite the recommendations of an independent SADC-commissioned report compiled by the Geneva-based World Trade Institute Advisors, which analysed the form and function of the Tribunal and found that - among other things - it was legally constituted, its decisions should be binding and enforceable in all member states, it had the authority to deal with individual human rights petitions, and sufficient judges should be appointed urgently so that it could resume its work.

The summit also ignored an earlier petition signed by SALC and 18 other organisations - including the SADC Lawyers Association, the East Africa Law Society and the Pan-African Lawyers Union - expressing their concern about the future of the Tribunal and urging states to take measures to strengthen the court rather than sabotage it.

The petition called on participants at a SADC Council of Ministers meeting on the Tribunal in Namibia in April to affirm the Tribunal's institutional autonomy and judicial independence, retain its jurisdiction to receive citizens' petitions on issues of human rights and trade, and immediately ensure there are enough judges for a quorum so that the Tribunal can continue its crucial work and guarantee the rights of all SADC citizens to access justice.

By suspending the Tribunal, SADC is setting itself at odds with the other regional economic communities in Africa. Both the Economic Community of West African States and the East Africa Community recognise that regional courts are critical to protecting human rights and to encouraging economic growth.

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