Established on 14 August 2001, the SADC Tribunal was officially inaugurated in 2005.

Based in Windhoek, the Court was a major step forward in the sub-regional establishment of a common rule of law. After several judgments ruling against the Zimbabwean government – ignored by the latter in contempt of court – the Tribunal was de facto suspended at the summit in Windhoek on 16/17 August 2010, when SADC celebrated the 30th anniversary of the sub-regional body. The Tribunal’s future will be discussed at the 32nd SADC summit in mid-August in Maputo.


The aborting of the rule of law
The documentary Mugabe and the White African’(also published as a book) released in 2011 is about the Zimbabwean farmer Ben Freeth, who successfully objected to the eviction from his land despite life-threatening state terror against him and his family. On 16 July 2010, the Tribunal made a ruling that reiterated two earlier judgments in the matter and concluded that the Zimbabwean state had violated its decisions; it was to report its finding to the Windhoek summit 2010 for appropriate action.

But the summit did not deal with Zimbabwe’s non-compliance. Instead, it did not extend the terms which expired on 31 August 2010 of four judges. They included the Tribunal’s president, although his presidential term was set to run till 27 November 2011. As a result, the Tribunal ceased activities as from August 2010.

Since then the SADC Secretariat had commissioned an independent review. Submitted in March 2011 by University of Cambridge Senior Lecturer in Law Lorand Bartels as “Review of the Role, Responsibilities and Terms of Reference of the SADC Tribunal” to the Committee of Ministers of Justice/Attorneys-General in SADC, it affirmed the jurisdiction of the Tribunal and its legal authority.


Politics trumps law
The subsequent extraordinary Windhoek summit of SADC on 20 May 2011 stated in its communiqué that ministers of justice and attorney generals were mandated to initiate amendments to the relevant legal instruments, to submit a progress report in August and a final report to the summit in August 2012. When asked whether the recommendations would be made public, SADC’s Executive Secretary Tomaz Salomao responded that neither the media nor SADC citizens needed to know what was in the report.

Meanwhile the Tribunal was further dismantled and remained defunct. On 13 June 2011, the four judges whose mandate had not been extended by a second term in August 2010 submitted a letter to SADC’s executive secretary. They condemned the decisions as illegal, arbitrary and taken in bad faith, asserting that the treatment of the SADC Tribunal showed that SADC put politics above the law and ignored the legal instruments it had created.

The SADC Lawyers Association declared the continued suspension of the SADC Tribunal illegal and as a breach of the SADC Treaty and the SADC Protocol. Since then a number of human rights organisations and prominent individuals in the region, including Desmond Tutu, campaign for the full restoration of the Tribunal. Of late, a video clip posted worldwide presents compelling evidence to bring back an essential element of a regional rule of law component.


Sovereignty above justice?
It is noteworthy that the SADC extraordinary summit held on 1 June 2012 in Luanda noted in its official communiqué “that the Region continues to consolidate democracy and the rule of law” – but did not mention the Tribunal at all. In preparation for the 32nd official summit on 17/18 August 2012 in Maputo, the ministers of justice and attorney generals held another meeting from 11 to 15 June 2012 in Luanda to finalise their submission on the Tribunal. Proposals reportedly suggest that the Tribunal continues under a different mandate. The ministers seemed to agree that human rights form an integral part of their domestic judicial system. This complicity seems to signal the intention to return to the dictum of absolute national sovereignty with the aim to strip the Tribunal of its most important role, namely to deal with cases of human rights violations by governments who could not care less.

The position of Namibia’s Minister of Justice Pendukeni Iivula-Ithana (at the same time Secretary General of the governing Swapo party and one of the strong contenders for the succession of president Pohamba as the head of state) is in this respect revealing. At an earlier meeting in Walvis Bay she had reportedly expressed the view that the Tribunal was in conflict with international law principles, including a number of SADC member states’ constitutions. She reiterated the wish “through appropriate measures to make adjustments from time to time, to fit our interests”. She felt that SADC member states were entitled to “fine-tune regional bodies”, and that these instruments were to serve the member states: “The instruments serve us, they are for us, and this is not a reversible position”.

Such blatant misconception of the rule of law turns it again into the law of the rulers. It would be a major setback for the international credibility of SADC and its member states if the summit in Maputo would indeed follow such a slippery road.

This article appeared in The Namibian of 17 August 2012