via SADC Tribunal petition – The Zimbabwean 11 May 2015
The leaders of southern Africa are pulling apart a regional court which they put in place to protect the rights of individuals in the region – the Southern Africa Development Community Tribunal (SADC Tribunal).
Taking African governments to court is not easy as national courts are often unwilling or unable to prosecute heads of state or other government officials. The SADC Tribunal provides those whose rights have been violated and abused by governments in southern Africa, a fair and impartial court where they can hold governments accountable and seek redress.
Unfortunately this Tribunal was suspended by the leaders of southern Africa in 2010 and remains suspended to date. Furthermore, for the past six years, these leaders have been engaged in a process aimed at taking away the power of this court to hear human rights cases. Individuals will also no longer be allowed to bring grievances before the Tribunal as it will be limited to hearing disputes between states only. People in southern African countries will therefore be prevented from holding the leaders of these countries accountable at the regional level.
In August 2015, these leaders will be meeting in Botswana for an annual meeting, known as the SADC Summit of Heads of State and Government (SADC Summit). We need to send a clear message to them that the people of SADC (i.e. southern African countries) believe that the SADC Tribunal is important and want to maintain it as it is. Add your voice to this call by signing the petition at https://www.change.org/p/sadc-heads-of-state-and-government-don-t-deprive-me-of-my-right-to-take-leaders-of-southern-africa-to-court and sharing it with others.
What is the SADC Tribunal?
The SADC Tribunal is a regional court set up to hear disputes between States in southern Africa. It also has the power to hear disputes between natural persons (i.e. people living in southern Africa) and States in the SADC region; as well as between legal persons (such as businesses) and States. The Tribunal was first envisioned in 1992 and in 2000 SADC leaders signed an agreement, known as the “Protocol on the Tribunal of the Southern Africa Development Community”, establishing it.
The SADC States are Angola, Botswana, the Democratic Republic of Congo (DRC), Lesotho, Madagascar, Malawi, Mauritius, Mozambique, Namibia, Seychelles, South Africa, Swaziland, Tanzania, Zambia and Zimbabwe. Therefore, if the Tribunal were still functioning, all citizens of these countries and individuals who have a dispute with a government of one of these countries would be able to take a case before the court when the national courts were unable or unwilling to resolve the dispute.
The disputes the Tribunal can hear include human rights complaints. So for example, a person arbitrarily arrested, deprived of their property or possessions, or subjected to torture could take the State responsible for such an act to the regional court. Those who have been detained simply for peacefully expressing their opinion, for example journalists and others in Angola, Swaziland and Botswana, could have taken these governments to the SADC Tribunal.
Why was the Tribunal suspended?
Between 2007 and 2009 the Tribunal heard and decided a number of cases against the Zimbabwean government. In 2009, the government of Zimbabwe challenged the legitimacy of the Tribunal and in August 2010, the leaders of SADC announced that there would be a review of the Tribunal. The Tribunal was suspended pending the review.
An independent review found that the Tribunal was properly constituted with authority under international law to hear individual petitions regarding human rights violations. Despite this, the suspension of the Tribunal was extended for another year and the Ministers of Justice and Attorney Generals of SADC were tasked with conducting another review. In June 2012 the Ministers decided the Tribunal should be changed so that it could no longer hear human rights cases until the adoption of a SADC human rights Protocol. They however, thought individuals should still be able to take other cases not related to human rights before the Tribunal.
The leaders of SADC however, negotiated another protocol removing, not only the human rights mandate, but also the ability of individuals to access the Tribunal.
In August 2014 this new protocol was signed at the SADC Summit by nine leaders of SADC States. Before the Tribunal can be changed, 10 of the SADC countries will have to sign and ratify the new protocol. It has only be signed by nine countries so far and no country has ratified it.
Why is the suspension and possible change to the SADC Tribunal a negative thing?
Leaders of countries have been known to abuse their powers and this abuse can take the form of violation of human rights. National courts are not always independent and impartial. In some cases they are unwilling or unable to take up cases against governments. They may also be unwilling to make a decision against the government for fear of repercussions from the government.
The SADC Tribunal provides an extra layer of protection for human rights. If the new protocol is ratified people in SADC will be deprived of a competent Tribunal for attaining an effective remedy against the violation of their rights when national courts are unwilling or unable to help. Countries in southern Africa have made a number of commitments nationally and internationally to ensure people have access to justice. Instead of improving this right progressively, the leaders are taking a backward step by taking away the powers of the SADC Tribunal to hear human rights cases and cases from individuals.
What can you do to prevent this from happening?
Although the SADC Tribunal has been suspended, it still retains its powers. If the new protocol is not ratified then the Tribunal will continue to exist with the power to hear human rights cases and cases brought by individuals. In most southern African countries parliament has to ratify the protocol. You can help by:
1. Signing this petition thereby adding to the number of people making the southern African leaders aware that the people of SADC value the Tribunal and want it to remain as it is.
2. Writing to your member of parliament raising concern about the proposed changes to the SADC Tribunal, that these changes constitute a retrogressive step in the right of access to justice, and calling on them not to ratify the new SADC Protocol, which removes the human rights jurisdiction and individual access to the Tribunal.
3. Sharing this information and the petition with your contacts, particularly those in southern Africa.