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Sadc may be about to shoot itself in the foot
Nicole Fritz and Lloyd Kuveya, BusinessDay
April 07, 2011

http://www.businessday.co.za/articles/Content.aspx?id=139472

Human rights. Economic growth. Big, bold concepts too often portrayed as inevitably in tension. Yet, economic growth is facilitated by civic rights such as the freedom of information and expression, which allow businesses to make informed decisions about capital investment, or consumers about buying goods and services. On the other hand, socioeconomic rights - such as the rights to health, housing and education - require states to have the economic ability to realise these goods. And both human rights and sustained economic growth depend on the rule of law: on stable, predictable environments in which arbitrary, capricious state actions are rare.

For this reason, civil society and business should be concerned about the Southern African Development Community (Sadc) Council of Ministers meeting in Namibia from April 11 to 15. The meeting will decide the fate of the Sadc Tribunal, a court established by Sadc in 2001 to adjudicate disputes between Sadc states and between individuals and those states. Alarmingly, there is a very real possibility that individual access to the court will be scrapped and that only interstate disputes will be entertained. A decision along these lines would deal a fatal blow to the rule of law in the region, imperilling human rights, trade and investment - and long- term economic growth.

The Council of Ministers meeting is the culmination of a process that began in August last year, when Sadc heads of state and government decided to review the role, functions and terms of reference of the Sadc Tribunal.

The review was occasioned by Zimbabwe-s attack on the tribunal, which had earned Zimbabwe-s enmity by ruling against the government in a series of cases dealing with land disputes. Due to Zimbabwe-s persistent refusal to adhere to the tribunal-s orders, the tribunal referred Zimbabwe to the Sadc Council of Ministers for appropriate action. In terms of the Sadc Treaty, the ministers should have recommended sanctions or suspension. But instead of facing up to President Robert Mugabe and dealing with Zimbabwe-s blatant noncompliance, Sadc opted for a continuing review process, a process that should have taken six months. Sadc is already out of time.

And during this extended time, rather than suspending Zimbabwe, Sadc in effect suspended the tribunal. By choosing not to renew sitting judges- terms of office or to appoint new judges, Sadc deprived the tribunal of the requisite number of judges needed to hear new cases, rendering it - to all intents and purposes - defunct.

This is one of the most obvious indications that the review was never intended to result in a more effective, legitimate and viable institution, but in a considerably weakened court that would not be able to embarrass influential states ever again.

Should Sadc now act to deprive individuals of the right to access the tribunal, it will - helpfully for Zimbabwe - remove one of the last remaining avenues Zimbabweans have of securing recognition of their government-s unlawful actions. But it will also mean that investors in any other Sadc state - Swaziland, say - who might be targets of arbitrary expropriation and unable to secure relief before that country-s courts, will have no right to approach the Sadc Tribunal for definitive determination of their entitlements and protection of their property.

If Sadc pursues this path, it will set itself at odds with the other regional economic communities in Africa. Both the Economic Community of West African States and the East Africa Community secure the rights of individual access to their respective courts, recognising that such access is critical to encourage economic growth.

All three regional economic communities are committed to securing an economic community that ultimately encompasses all of Africa. But Sadc will set back integration efforts by offering its citizens and residents and those who do business within its territory less protection than they can command in other parts of the continent.

Sadc will also actively undermine its own stated rationale of securing the economic upliftment of the region by providing a real disincentive for trade and investment, while simultaneously jeopardising another of its oft-stated goals - to ensure human rights and dignity for all the people of the region.

Fritz is the director and Kuveya the head of the regional advocacy programme of the Southern Africa Litigation Centre.

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