So often are the winds of change said to blow through the southern reaches of Africa that the uninformed might think there are always hurricanes here.
Last month's Southern African Development Community (SADC) summit held in Maputo really gave the impression that transformation gusts were sweeping the region: three new leaders took a bow, among them Southern Africa’s first female head of state, Malawi's President Joyce Banda, plus Lesotho’s new prime minister and Zambia’s new president. This summit told Rwanda it needed to “cease immediately its interference that constitutes a threat to peace and stability, not only of the Democratic Republic of Congo, but also of the SADC region”.
Nkosazana Dlamini-Zuma, chairperson-elect of the African Union Commission, also addressed the summit, her participation seemingly a recognition of the mandate she had received from the SADC to effect broader change within the continental body.
But whatever the impression of winds, mainly it was just hot air. Buried deep in the summit’s final communiqué was the announcement that its leaders intended shelving the current SADC tribunal. A new protocol is to be negotiated between states; a new tribunal will be established. This time, however, no individuals will be permitted access to the court.
In doing so, the summit denies SADC citizens access to justice and legal remedy and violates judicial independence. The decision to summon up a new tribunal and cast away the old is without legal basis. The summit knows this. It disregarded completely the legal advice it had itself solicited. In 2010, it suspended the old tribunal, ostensibly a necessary part of the review it commissioned of its powers, functions and role. The independent experts it appointed held that the old tribunal had been lawfully established and should be reconstituted as soon as possible.
That was not the advice the summit wanted and so it mandated its own ministers of justice and attorneys general to make recommendations to amend the tribunal’s protocol. The committee tried to accommodate the summit’s objections, proposing that the tribunal’s human rights jurisdiction be postponed. But there was no getting around the fact that the tribunal had to be made operational with individual access secured, and it advised accordingly.
The summit declared otherwise, not concerned about the law or about the considerable expense and time wasted. Nor does it appear to have given the region’s leaders any pause to consider that they would be seen to preside over the dismantling of an integral part of the community – its judicial organ – and that this would jeopardise the entire regional integration project.
Several SADC agreements, such as the one relating to gender and development, specifically need the tribunal to give them effect. That these agreements are now worthless makes them the collateral damage of the summit’s decision.
Zimbabwe’s government has been the tribunal’s most fierce antagonist. Despite nominating a judge to sit on the tribunal and appointing counsel to defend it, Zimbabwe contested its legitimacy when a series of rulings on the land expropriation process were made that were not in Zimbabwe’s favour. These should never have been among the first cases heard by the tribunal. New courts – domestic or regional – are fragile creatures. They depend for their survival on an acceptance of their legitimacy and authority. As they cultivate this culture of acceptance, they can ill afford to take on the most politically contentious matters.
It is worth comparing the tribunal with South Africa’s Constitutional Court. The first case it heard concerned the constitutionality of the death penalty. Public opinion then and now favours the death penalty, but the ANC does not. The ANC might have legislated on this matter, rather than allowing the controversial issue to be tested by the new court. But the court could issue its judgment against the death penalty, safe in the knowledge it would not incur the enmity of the ruling party.
Of course, it is those most politically contentious cases for which access to justice is the most difficult to obtain. And had the SADC tribunal judges been more calculating, determining not to hear the Zimbabwean land cases on the basis of admissibility or standing, for instance, they would undoubtedly have done an injustice to the claimants. But it would have been an injustice that might have safeguarded the tribunal’s sustainability.
As it is, Zimbabwe has, with some success, sought to characterise the tribunal as the last bastion of those who would reverse land reform and retard the liberation process. That the tribunal also offered the prospect of redress to people such as unfairly dismissed Swaziland Judge Thomas Masuku, who had the temerity to dispense justice independently, Botswana’s San people, who have been pushed off their ancestral lands, and journalists jailed in Angola for criticising public officials, has largely been lost.
In fairness, it would be wrong to place the blame for the tribunal’s demise only at Zimbabwe’s door. Tanzanian President Jakaya Kikwete has been resolute in his opposition to the tribunal. As has Botswana’s President Ian Khama – surprising when one considers the number of statements Botswana has issued distancing itself from the antagonistic position adopted by the African Union towards the International Criminal Court. But, then again, Khama does not expect to be brought up on charges of genocide.
And what of South Africa? President Jacob Zuma had already left the summit when the decision was taken, but even had he remained, the outcome would have been no different. Department of international relations and cooperation spokesperson Clayson Monyela has said that South Africa’s position is “neither here nor there”.
Later this month, heads of state gather in New York for the annual opening of the United Nations general assembly. This year the theme is the “rule of law at national and international levels”. SADC leader after SADC leader will take to the podium mouthing pieties about the importance of the rule of law in advancing development, securing peace and stability and promoting a more equitable global order.
In explaining away the demise of the SADC tribunal, we can expect to be treated to whirlwinds of duplicity.
Nicole Fritz is the director of the Southern Africa Litigation Centre.