Solidarity trumps rule of law
The Southern African Development Community's decision to scrap its regional court was inevitable, says Laurie Nathan.
In 2008 the Tribunal of the Southern African Development Community (SADC) ruled that the Zimbabwe government's seizure of land owned by white farmers violated the SADC treaty principles of non-discrimination and the rule of law. The rule of law had been breached because the farmers were denied the right to challenge the land seizures in a Zimbabwe court.
The tribunal noted that it would have reached a different verdict if the state's criteria in confiscating land were reasonable and objective, if fair compensation was paid for expropriated lands and if these lands were distributed to poor, landless and other disadvantaged individuals or groups.
The regional court ordered the Zimbabwe government to refrain from interfering with the farmers' occupation and ownership of their properties. Yet the government spurned the tribunal, mounted a campaign to nullify its judgments and subjected the farmers to violent harassment. Instead of upholding the treaty and defending the tribunal, the SADC summit of heads of state suspended the court and earlier this year dissolved it.
On the face of it, the summit's decision is astonishing. After all, in 1992 the heads of state signed a treaty embracing human rights, democracy and the rule of law. They committed their countries to taking all steps necessary to accord the treaty the force of national law and they established a regional court to adjudicate disputes and ensure adherence to the treaty. In 2000 they signed a legal protocol stipulating that the tribunal's judgments would be final and binding.
Nevertheless, President Robert Mugabe dismissed the tribunal's judgments in favour of the farmers as an "exercise in futility". When some of the farmers were beaten up and tortured in 2008, they petitioned the tribunal to hold the Zimbabwe government in breach and contempt of the regional court's order. The tribunal upheld their plea, rejecting the government's defence that there was a state of lawlessness in Zimbabwe and that the authorities were experiencing difficulty in preventing intimidation and violence.
On three occasions the tribunal referred Zimbabwe's failure to obey its rulings to the summit for "appropriate action" and on each occasion the summit ignored the matter. When the summit finally took decisive action in 2012, it was to shut down the regional court.
An analysis of the regional political context suggests that this decision was not, in fact, surprising. At the heart of the matter is the SADC countries' fierce resistance to any significant transfer of sovereignty to the regional level.
These countries are opposed to diluting sovereignty because they acquired it relatively recently and at great cost through liberation struggles. In addition, many of them have only a tenuous grip on sovereignty and they do not want to weaken it through binding regional rules, decision-making and enforcement mechanisms.
Most importantly, the political systems of the SADC states span the spectrum from authoritarian to democratic. There is consequently no consensus on the tenets of domestic governance. In these circumstances it is not tenable to transfer sovereignty to regional institutions because none of the states could be certain that communal rules and decisions would be consistent with SADC'S core values.
The SADC countries are united not by the principles of democracy but by the principles of solidarity and anti-imperialism. These principles were forged in blood in the 1970s and 1980s as the Southern African liberation movements battled collectively against colonial rule, minority regimes and their Western allies.
In the post-colonial period the salience of the principles has been reinforced by the West's prescriptive policies in Africa, its domination of the UN Security Council and its selective stance on human rights and the use of force. Solidarity is thus both a historical legacy and a pragmatic response by the weak against the powerful.
Viewed in this light, the summit's dissolution of the tribunal was not surprising. The court's ruling against Zimbabwe posed a radical challenge to sovereignty: it rejected the validity of a constitutional provision approved by the Zimbabwe Parliament and courts, and it refuted the legitimacy of the government's approach to redressing the land inequities inherited from colonialism and white settler rule.
The SADC created a democratic legal framework not because it was collectively committed to democracy but because there were formidable political and economic costs associated with a non-democratic posture. Such a posture would have undermined the organisation's international standing and its ability to obtain donor funding.
Constructing a legal edifice supportive of democracy, on the other hand, did not seem to have any costs. It was not perceived to be prejudicial to the non-democratic countries because the summit did not hold them accountable when they breached the treaty.
This changed dramatically with the tribunal's rulings against Zimbabwe. Unlike other critics of Harare, the regional court could not be ignored indefinitely because it was a creature of the treaty, it was set up by the summit and it comprised Southern African judges appointed by the heads of state.
When Harare sought to annul the rulings, the summit was confronted with a stark choice: it could either defend the treaty and the regional court or it could support a member state whose president and ruling party had liberated their country from colonialism and thereafter assisted the other liberation movements in Southern Africa. Given SADC's hierarchy of values, in terms of which sovereignty and regime solidarity take precedence over human rights and democracy, the outcome was surely inevitable.
Laurie Nathan is extraordinary professor and director of the Centre for Mediation in Africa at the University of Pretoria. This article is an abridged version of his address at the Western Cape annual general meeting of the South African Institute for International Relations. His research on the tribunal is supported by the Konrad Adenauer Stiftung but the views expressed here are his alone