SA's highest court, without staking out any position on Zimbabwe's land process, has shown the SADC a most unflattering image in the mirror.
A fortnight ago, the Constitutional Court reinstated Mpondombini Justice Sigcau as Mpondo king. Sadly he did not live to hear the decision. This week, the court issued a ringing affirmation of the South African Development Community (SADC) Tribunal as an instrument for the protection of human rights almost a year after it was stripped of any power to fulfil that role. Justice can come wrapped in cruel irony.
Zimbabwean farmers, stripped of their land and denied both compensation and access to courts, had approached the tribunal for redress. It ruled in their favour, referring the case to the SADC summit for an appropriate remedy, and awarding costs against the Zimbabwean government. When the government refused to comply, some of its property in South Africa was attached in execution of the debt. The question before the court was whether the decisions of the tribunal were binding in South Africa.
The answer was a resounding yes. More than that, it was a statement of the larger significance of the tribunal that stands as a rebuke to the decision by regional leaders to drastically limit its powers.
Writing with the support of eight of his colleagues, Chief Justice Mogoeng Mogoeng frames the decision of the court in terms that stress the centrality of SADC to a broader project of African renewal.
He says: “For the right or wrong reasons, Africa has come to be known … as the dark continent, a continent which has little regard for human rights. Apparently driven by a strong desire to contribute positively to the renaissance of Africa, shed its southern region of this development-inhibiting negative image, co-ordinate and give impetus to regional development, Southern African states established the SADC with special emphasis on the need to respect, protect and promote human rights, democracy and the rule of law.”
Mogoeng goes on to situate the tribunal as the keystone of justiciability for that project, saying it was set up to “ensure that no SADC member state is able to undermine the regional development agenda by betraying these noble objectives with impunity”. Critically, “it was created to entertain human rights related complaints particularly by citizens against their states”.
Zimbabwe not only ignored the ruling, it also sought, and won, the effective neutralisation of the tribunal in precisely those cases between citizens and their states that Mogoeng identifies as central to its mission.
In 2010, SADC agreed, at Zimbabwe’s behest, to suspend the work of the tribunal, and in August 2012 gutted it as a human rights instrument, limiting it to a vehicle for dealing with disputes between members states around the interpretation of the SADC protocol. It was a disgraceful capitulation.
Now South Africa’s highest court, without staking out any position on Zimbabwe’s land process, has shown them a most unflattering image in the mirror. The judgment should be a spur by South Africa’s authorities, and for those of our neighbours, to return this crucial institution to its proper role.