South Africa's continental rival, Nigeria, has seized an opportunity that arose when Africa's southern region suspended its own court.
The authoritarian reaction of the Southern African Development Community (SADC) to a judgment handed down by the SADC Tribunal in favour of dispossessed Zimbabwean farmers could blow up in its face—and in South Africa’s in particular.
SADC, probably unaware of the ramifications when it established the tribunal, suspended it after the judgment, which had angered many of its members, pending a review of the protocol that underpinned it. The damaging political implications of this decision have not gone unnoticed by other countries in Africa, particularly Nigeria, which is challenging South Africa for political dominance of the continent.
And SADC’s political conundrum is not likely to be resolved soon: two Zimbabwean farmers, Ben Freeth and Luke Tembani, are asking the African Commission on Human and Peoples’ Rights (ACHPR) to open a case against all 14 SADC members at the African Court on Human and Peoples’ Rights.
This unprecedented request has stemmed from a decision taken by SADC’s heads of state last year to suspend the tribunal—the regional court that in 2008 had awarded Freeth, Tembani and dozens of other Zimbabwean farmers a judgment against the Zimbabwean government after it had sanctioned the invasion of their farms in the name of the country’s land reform programme.
Judgment in favour of Zimbabwean farmers unpopular
But instead of enforcing the judgment, the SADC summit suspended the tribunal in 2011, ostensibly pending a review of the protocol that underpinned it. It is widely accepted that the judgment against Zimbabwe was extremely unpopular with the region’s leaders.
Ottilia Maunganidze of the Institute for Security Studies said: ‘To put it bluntly, when that decision was made, SADC leaders suddenly realised they had created a monster.
Previously they do not appear to have registered that individuals could use the tribunal to call them to account.”
According to Keith Gottschalk, an expert on African institutions based at the University of the Western Cape, it was not possible for Freeth and Tembani, or any individual, to open a case at the African court, as they did with the tribunal. But the commission, as a non-governmental organisation, could do so on behalf of individuals.
‘It’s rather clever what they’ve done. The ACHPR has agreed to consider Freeth and Tembani’s complaint, which includes a demand that the SADC Tribunal be reinstated. If the ACHPR does proceed to open a case at the African court on behalf of the Zimbabweans and the court finds in favour of the applicants, the SADC states will, theoretically, have to comply because all have voluntarily signed on as states subject to the African court,” Gottschalk said.
While discussing the recent diplomatic row between Africa’s two superpowers after South African immigration services turned back 125 Nigerians at OR Tambo International Airport for allegedly failing to produce authentic yellow-fever certificates, a Nigerian diplomat, who did not want to be named, warned: ‘There are many ways to embarrass your country if this attitude towards Nigeria and her people continues.”
According to Lloyd Kuveya of the South African Litigation Centre, South Africa voted with the other SADC nations to suspend the tribunal, an institution with a reputation as a defender of human rights, but regional courts in West and East Africa that had made similar landmark judgments had not been threatened.
‘It’s easy enough to see how dominant nations in these other African regions, especially Nigeria, could use this whole process to paint itself as a more responsible continental leader than its competitor [South Africa],” said Kuveya.
Nigeria vs South Africa
Nigerian and South African competition for the soul of the African Union was clearly visible when Nigeria, joined by most members of the West African economic community, would not vote for South Africa’s candidate for chairperson of the African Union (AU), Nkosazana Dlamini-Zuma.
Gottschalk said: ‘The power of their [Freeth’s and Tembani’s] tactic lies not in any threat of enforcement, because the African court has no air force or policemen, but rather in its potential to embarrass respondents and to pressurise their allies into reconsidering their support.”
Clayson Monyela, spokesperson for the department of international relations and co-operation, said South Africa’s diplomats were ‘fully apprised of the situation” and ‘would never let this matter [South Africa’s handling of the tribunal] get to that point [the loss of credibility]”.
Several analysts and lawyers have differing views on the Zimbabweans’ strategy.
‘They secured a judgment in their favour, but it was rendered meaningless when the SADC Tribunal was suspended. Their options were to simply hope for a miracle when the outcome of the SADC protocol review process is announced in August, or to try to have their grievance brought to the African court by the African commission,” said SADC Lawyers’ Association president Thoba Poyo-Dlwati.
But Kuveya doubted that the Zimbabweans would ever reach the African court. ‘The ACHPR characteristically takes a long time to come to a decision and, in this case, all 14 SADC countries are listed as respondents. By the time they’ve all made their submissions, the outcome of their own SADC protocol review will have been announced. And if they announce that the SADC Tribunal is to be reinstated the entire adventure up north will have been academic.”
Kuveya said the applicants were ‘possibly seeking merely to have some influence on the SADC protocol review process” by keeping SADC’s attitude to human rights ‘right in front of their fellow AU members”.
Gottschalk, paraphrasing an observation by Judge Dennis Davis, said: ‘The world is increasingly moving from states of warfare to states of law-fare”, referring to the fact that states were seeking legitimacy by appealing to international law and embarrassing their competitors in international courts.
‘We can expect to see African nations playing the same game as the United States and others who have mastered the art of law-fare,” he said.