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Implication of the decision to review the role, functions and terms of ref of the SADC tribunal
Southern African NGOs
November 11, 2010

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Overview

1. The communiqué of the Southern African Development Community (SADC) Summit of Heads of State and Government, issued on 17 August 2010, announced that a review of the role, functions and terms of reference of the SADC Tribunal (the Tribunal) would be undertaken and concluded within six months. Additionally, it was determined that the Tribunal would not receive any new cases pending the completion of the review process. Further, the SADC Summit did not renew the tenure of office of five members whose terms had expired and failed to replace them and Zimbabwe-s withdrawn Tribunal member. The members will continue to hold office only for purposes of finalising partly heard cases already before them.

2. Events leading to the SADC Summit-s decision are as follows: in August 2009, the Zimbabwean government issued a legal opinion challenging the legality of the Tribunal and impugning its jurisdiction, mandate and powers to enforce decisions. Zimbabwe-s position followed failure on its part to comply with several Tribunal judgments. The SADC Council of Ministers (the Council) was tasked with responding to Zimbabwe-s objections and presenting a draft answering opinion at the thirtieth Jubilee SADC Summit in Windhoek, Namibia in August 2010. The Council had not completed their study by August 2010 but nonetheless recommended to the SADC Summit that there be a review of the role, functions and terms of reference of the Tribunal. That recommendation was acted upon and adopted as a binding decision by the SADC Summit.

3. It is submitted that the decision of the SADC Summit to review the Tribunal effectively amounts to a suspension. We say this for two reasons.

4. First, pending the completion of the review, the Tribunal will not take on new cases and as such the Tribunal is barred from fulfilling its function for at least six months.

5. Second, even if the Tribunal were not expressly prevented from hearing new cases, the decision not to renew the tenure of office of the five members whose terms have expired coupled with the failure to appoint new members to fill the resultant vacancies means that, procedurally, it is unable to do so. This is because at present there are only four members of the Tribunal who are currently in office. Of those four only two are regular members. The Tribunal Protocol requires that the Tribunal be constituted by not less than ten members and that an ordinary bench of the Tribunal be composed of three members and a full bench of five members. The decision of the SADC Summit has left the Tribunal improperly constituted and incapable of performing its functions.

6. We acknowledge that a review of the role, functions and terms of reference of an international or regional court is not uncommon. The structure of the European human rights protection system has been reviewed several times by amending and supplementing the provisions of the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms through additional and amending protocols.1 In June 2010 the International Criminal Court (ICC) state parties, observer states, international organisations and NGOs gathered in Uganda to discuss proposed amendments to the Rome Statute.

7. However, as will be demonstrated in the course of this opinion, in making such decisions, SADC and its institutions failed to comply with the provisions of SADC-s constitutive instruments.

8. SADC, as an international organisation, is bound to act in accordance and within the scope of the constituent documents governing its institutions. It will be shown that although a decision to review the Tribunal is not itself problematic, the suspension of the Tribunal and failure to fill Tribunal vacancies is not authorised by nor compatible with the SADC Treaty, Tribunal Protocol and the Tribunal-s Rules of Procedure and is therefore ultra vires.3

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