[Bill-Watch] Bill Watch 42/2014 of 10th November [The New SADC Tribunal Protocol]

[Veritas Bill Watch]

BILL WATCH 42/2014
[10th November 2014]
Both Houses of Parliament Are in Recess until 25th November 
The New Protocol on the SADC Tribunal
As noted in Bill Watch 32/2014 of 28th August, the SADC Summit at Victoria
Falls adopted a new Protocol on the SADC Tribunal on 18th August.  The full
text of the new Protocol was not then available.  [The Protocol is available
from the addresses given at the end of this bulletin; the full text of the
SADC Summit communiqué is also available].  When it became available the
next question was whether the adoption of the Protocol was followed by any
further developments and Veritas has been tracking what is happening about
it coming into force.  
The position, however, remains that the new Protocol on the Tribunal is not
yet in operation, and the new-look SADC Tribunal is unlikely to be launched
soon.
Adoption of Protocol Only a Preliminary Step 
Under the SADC Treaty, Summit decisions are taken “by consensus” – not by
majority vote.  This means the Protocol would have been regarded as adopted
at the meeting of Heads of State and Government on 18th August because no
member present raised a formal objection to its proposed adoption. 
Only 9 Signatures  When it came to the signing ceremony, although all 15
SADC member States were represented at the Summit, only 9 of them [including
Zimbabwe] signed the Protocol.  The consequences of this are indicated
below. 
Signature and Ratification by Ten SADC States Necessary
for Protocol to Come into Force 
Article 53 of the Protocol provides that it will come into force 30 days
after ratification by two-thirds of the member States [10 of 15].  In
addition, only a member State that has signed the Protocol can ratify it
[article 52].
Ratification is the post-signature process by which a State confirms its
adherence to an international agreement signed by its Head of State or by
his or her authorised representative.  [Each state has its own rules and
procedures for ratification.  In Zimbabwe the Constitution states that
Parliament must approve an international agreement signed by the President
or a person authorised by him; so it is only after Parliament’s approval
that the President can sign an instrument of ratification and have it
deposited with the SADC Executive Secretary by the Ministry of Foreign
Affairs.]  
Not even early ratification by all the nine States that have signed the
Protocol [and none have done so yet], will bring it into operation.  Nine
ratifications are not enough.  The coming into operation of the Protocol
will have to wait for at least one of the six as yet non-signatory member
States to sign it, and at least ten signatories to ratify it.  How long this
will take will depend on the reasons the non-signatory States had for
holding back from signing of the Protocol although letting its adoption go
ahead.  There is no time-limit for the remaining signatures.    
The six States that did not sign were:
Angola                                                 Botswana
Madagascar                                        Mauritius
Seychelles                                          Swaziland
Reasons for Not Signing the Protocol
Although no explanations have been publicly reported for the failure of six
member States to sign the Protocol, their concerns may well have centred on
the need for SADC to finalise consequential amendments to the SADC Treaty
itself, before allowing the Protocol to come into operation. 
It must be remembered that the 2013 SADC Summit in Malawi not only
instructed the Committee of Ministers of Justice/Attorneys-General to
negotiate a new Protocol on the Tribunal, but also tasked it with
identifying provisions of the SADC Treaty and other protocols and legal
instruments that would require consequential amendments.  It would be
understandable if some member States wish to avoid further problems and
embarrassment by ensuring that there is enough time for the second part of
the Committee’s task to be completed and any necessary action implemented by
a subsequent SADC Summit, before SADC proceeds to launch the new-style
Tribunal by appointing judges and supporting staff.  
In other words, the States that have so far hesitated to sign the Protocol
may merely want to be sure that undue haste at this stage does not lead to
legal mistakes in the course of tidying up the situation caused by
Zimbabwe’s rejection of the Tribunal’s decisions against it and its
successful campaign to persuade the SADC Heads of State, first to stop the
Tribunal functioning and then to emasculate it.  
The concerns of these six States may, however, go deeper than that.  Their
failure to sign the Protocol could indicate fundamental reservations about
finally transforming the Tribunal into what a learned South African legal
commentator has called “a travesty”, now that it has such reduced
jurisdiction.  
Reduced Jurisdiction of the Tribunal
Only States Parties Will be Able to Approach the Tribunal
Only States parties to the Protocol will be able to refer cases to the
Tribunal if/when it eventually becomes operational again, i.e., after the
Protocol comes into operation and judges are appointed and sworn in.  
In accordance with the decision of the 2013 SADC Summit in Malawi, the
jurisdiction of the Tribunal will be limited to disputes between member
States.  This is reflected in Article 33 of the Protocol, which provides
that it will only have jurisdiction over the interpretation of the SADC
Treaty and Protocols relating to disputes between Member States.  
The Tribunal will have no power to deal with any other complaints.  This
means that persons or organisations who may be denied justice in their
national courts will have no regional court to appeal to as was the
intention when the SADC Tribunal was first set up.
The Present Position of the Original Protocol
The new Protocol makes provision for the repeal of the original Protocol, to
become effective when the new Protocol itself comes into operation.  
Meanwhile, as has been the case for the last four years and on paper only,
the original Protocol continues in force and the SADC Tribunal continues to
exist, by virtue of the SADC Treaty of 1992.  But it is a phantom court
without judges, and unlikely to become operational in the near future.  
Continuing Opposition to the New Protocol
Bill Watch 32/2014 mentioned that, on the eve of the Victoria Falls Summit,
the SADC Lawyers Association [SADCLA] had called for the launching of court
cases in individual SADC member States seeking to prevent their Governments
from accepting the new Protocol.  
One such case is known to have been filed so far.  The Tanzania Law Society
started proceedings in the High Court seeking to stop the Tanzanian
Government from participating in any decision to adopt a new Protocol on the
SADC Tribunal.  Their argument was that this would be contrary to the
Tanzanian Constitution.  The Tanzanian Attorney-General has asked for the
action to be dismissed as untenable.  Although the case was filed just
before the SADC Summit took place, the court hearing was towards the end of
September.  A decision is awaited.
The SADC legal fraternity [including ex-judges of the Tribunal] seem on the
whole very clear that the dismantling and reassembling of the Tribunal by
successive SADC Summits has been in breach of the rule of law and see it as
a denial of access to justice at regional level.  It is therefore likely
that lawyers in other SADC countries may follow the Tanzanian example and
bring lawsuits in their national courts as suggested by the SADCLA. 
African Commission on Human and Peoples Rights 
Rejects Complaint about SADC’s Suspension of the Tribunal
In December 2011, after the SADC leaders suspended the operations of the
SADC Tribunal, Zimbabwean farmers Luke Tembani and Ben Freeth took action at
the continental level.  Invoking the African Charter on Human and Peoples’
Rights, they challenged the legality of the suspension of the SADC Tribunal
in an application to the African Commission on Human and Peoples’ Rights. 
Background  Mr Tembani and the group of farmers being represented by Mr
Freeth [the plaintiffs in the case of Campbell and Others] all won cases
against the Zimbabwean government in the Tribunal.  But, the Zimbabwe
government refused to implement the Tribunal’s orders against it and
persuaded SADC leaders, not only to stop the Tribunal accepting new cases
and holding hearings [in August 2010], but also to stop appointing judges to
keep the Tribunal operational [in May 2011].  This paralysed, but did not
legally abolish, the Tribunal.
The basis of the Tembani/Freeth complaint to the African Commission was that
the SADC states, in abruptly suspending the Tribunal, had infringed the not
only the SADC Treaty, but also articles 7 and 26 of the African Charter on
Human and Peoples’ Rights guaranteeing access to courts, and principles of
international law.  All SADC Heads of State were cited as respondents,
together with SADC itself and its Council of Ministers. 
The complaint asked the Commission to do two separate things:
1.   to refer the case to the African Court of Human and Peoples’ Rights
[Note: Mr Tembani and Mr Freeth could not themselves approach the African
Court direct, because individual citizens of AU countries have no right to
do that.  The Commission can, however, refer a suitable case to the court,
on behalf of an individual or organisations.]   
2.   for the Commission itself to declare that the actions of the SADC
Summit regarding the SADC Tribunal had infringed the SADC Treaty, the
African Charter and international law, and that the SADC Summit should
accordingly reinstate the Tribunal and SADC member State should enforce the
decisions handed down by the Tribunal.  
Progress of the case  The case proceeded in three stages.  Stage 1 called
for the Commission to decide whether or not, and to what extent, it should
allow the case to proceed.  In early 2012 the Commission reached two
decisions: first, it rejected the applicants’ first request to refer the
case to the African Court [because, in the Commission’s view, it did “not
meet the requirements for referral as provided for in the Commission’s Rules
of Procedure”; second, however, it agreed to be “seized with”, to give
further consideration to, the applicants’ second request, for a declaration
from the Commission itself.
Stage 2 ended in October 2012, when the Commission ruled it would proceed to
consideration of the merits of the case, but only against the 14 cited SADC
member States, not against SADC or its Council of Ministers, both of which
had been cited in the original complaint.  This resulted in the Commission’s
calling for submissions on the merits from the applicants and the 14
remaining respondents.  
Stage 3: The merits of the complaint  The lawyers acting for Mr Freeth and
Mr Tembani lodged their submissions early in 2013.  Of the 14 respondents,
only Mauritius made submissions in reply.  The Commission considered the
case during its October-November 2013 meeting.  It was only on 1st March
2014, however, that its decision to reject the application was conveyed to
the applicants in the form of a lengthy document setting out the
Commission’s reasoning and its conclusion.  The ground for rejection was
that the African Charter articles that the applicants had invoked do not
guarantee access to regional courts such as the SADC Tribunal, but apply
only to access to national courts.  [Full text of the 49-page memorandum
available from the addresses at the end of this bulletin.]
Comment
The Commission’s rejection of this application will have come as a
disappointment to those who believe that the rule of law, including access
to justice, should apply not only at the national level but also at the
regional and international level.  
Its interpretation of the African Charter as protecting only national
courts, but not regional courts, has drawn adverse comment.  In fact there
were no regional courts in existence when the African Charter was drawn up,
so it could not have referred to regional courts which did not then exist.
Critics have said the Commission’s decision is an example of “absurd
literalism”, an out-of-date and now discredited approach to the
interpretation of international human rights instruments like the African
Charter.  Newer and more progressive thinking, backed by decisions of
international courts and authorities on international law, is that such
instruments should be construed purposively, with due regard to changes in
circumstances and  the evolution of new institutions, and always aiming at
enhancing rights, not restricting them.  
It is, however, significant that the Commission emphatically stated that a
State’s “denial of the right of access to a national judicial forum will
amount to a definite and inexcusable violation of Article 7(1)(a)” of the
African Charter.  Mr Freeth and Mr Thembani, and others who hoped that their
application would succeed, can take some comfort from this forthright
statement.  
Moreover, there is no hint anywhere in the Commission’s ruling of approval
or endorsement of the dismantling of the SADC Tribunal.  
It is hoped that, notwithstanding this rebuff from the Commission, work will
continue to ensure an effective legal remedy at both regional and
continental levels for aggrieved individuals who have been denied the right
of access to courts in their own countries or regions.  
 
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