/ 19 August 2011

Killed off by ‘kings and potentates’

Killed Off By 'kings And Potentates'

The Balalaika Hotel in Sandton has become a second home to Judge Ariranga Pillay, his transit base for the past five years between his home in Mauritius, where he served as chief justice from 1996 to 2007, and Windhoek in Namibia, where the regional court he headed from November 2008 to May 2011, the currently defunct Southern African Development Community (SADC) Tribunal, has its seat.

For this reason, the doorman, concierge and receptionist are all able to point him out at breakfast, an Indo-Mauritian guy in a colourful shirt and brown leather jacket.

We get right down to business as time is short: Pillay will soon board a flight to Windhoek, where he will address the Namibian Law Society. The night before Pillay had given a well-received address to a meeting of the Constitutional Court’s Alumni Association, opened by former South African Constitutional Court judge Johann Kriegler with the words: “Something terrible has happened.”

Pillay’s subject: the demise of the SADC Tribunal. On May 19, SADC’s council of ministers killed off the existing tribunal by suspending all its activities and not reappointing its judges. Pillay describes the decision as “a bolt from the blue”, as being “high handed and imperious” and “worthy of potentates and kings who can do no wrong and who are not accountable for their actions”.

This is not an easy register of language to reach over muesli and bananas, but Pillay gets there effortlessly, fuelled by the indignity of being “sent packing overnight, without any reason being given and without a hearing, like employees who had been caught red-handed while committing gross misconduct”.

Pillay’s decision to speak out — this is the first interview he has given – is motivated just as much by “the broader implication” of the tribunal’s demise, which will, likely as not, include the end of individual recourse to the regional court, a catastrophe for the nourishment of human rights principles in the region.

The campaign is a boon for supporters of the tribunal who until now have been dependent for an understanding of the political forces at work mainly upon drippings of information from parties that have brought cases before it. Pillay, conversely, speaks as one who used to sit “at the head table, always invited to council and summit meetings because I was the third branch of governance, with the SADC summit and its council of ministers”.

After it ruled against member state Zimbabwe in a series of sensitive land-tenure cases in 2008 and 2010, however, and after quashing a few “illegal” decisions of the council ministers and summit, the tribunal and its president were not so decorously treated, with Tanzanian President Jakaya Kikwete allegedly remarking to fellow heads of state a few years back: “We have created a monster that will devour us all.”

“I think that’s right, that they do feel they’ve created a monster,” said Pillay. “Why? I think that they didn’t process all the implications of a SADC Tribunal. I think they thought that, in passing the judgments we were passing, the tribunal judges were just engaging in judicial activism.”

‘Role, responsibilities and terms of reference’
Pillay reckons “the scales fell from their eyes” when SADC leaders read the final report of the external consultant, University of Cambridge Professor Lorend Bartels, who the ministers of justice themselves had asked to review the tribunal’s role, responsibilities and terms of reference.

Said Pillay: “Bartels explained that the SADC Treaty, signed by all member states, had the status of international law and that ‘under international law a state may not rely on its national laws, including norms of constitutional status, as a defence to a violation of an international obligation’. That gave them a fright and they started backtracking.” Pillay feels that until that point the tribunal, for SADC’s leaders, had been a gambit “to get funds from the European Union and others”.

“It gave off all the right buzz words, you know, ‘democracy, rule of law, human rights’ — and then they got the shock of their lives when we said these principles are not only aspirational but also justiciable and enforceable and we showed that we meant what we said,” he said.

The turn against the tribunal is popularly ascribed to its findings against the Zimbabwe government in the cases brought by white Zimbabwean farmers William Campbell and, separately, Louis Fick. Instead of taking action against Zimbabwe for non-compliance the regional ministers of justice or attorneys general had, in Pillay’s words, “ducked and postponed the issue since 2009 for reasons best known to themselves”.

He pointed out, however, that as cancerous as the Zimbabwe issue has been, he personally began to experience a cooling of relations with the other organs of SADC following the tribunal’s findings in favour of two summarily dismissed SADC employees.

“In January and February 2010 the tribunal quashed the decisions of the SADC council of ministers and of the summit not to renew the contracts of two high-level officials of the SADC, Mr [Clement] Kanyama and Mr [Angelo] Mondlane, without any reason. After these cases were decided, the executive secretary started to not invite me to council meetings, or, at best, his invitations were made at the last minute, in effect invitations not to attend!”

That what was done to Kanyama and Mondlane, namely not to renew their terms of employment without giving any valid reasons, has now been done to the tribunal judges, is an irony not lost on Pillay, but it leads him to a serious point: “You ask yourself, if the SADC’s leaders abuse the basic principles of law even in regard to the rights of the regional body’s highest officials and if the one organ that stood up for those rights has now been smashed, what is the broader prospect for human rights? The future looks bleak.”

Driving all aspects of Pillay’s multifaceted critique of SADC is his sense that the basic principles of law are often poorly understood by the organisation’s leadership and that, when they are understood, they are poorly valued and easily perverted to political ends.

“The manner in which they’ve treated the tribunal judges shows that a fundamental respect for the judiciary is lacking. You must realise that at the council meetings and the summit meetings participation is very superficial, the heads of state and ministers by and large know very little about the law.

“This is how it works: the SADC’s senior legal officers prepare the ground for the ministers of justice, who in turn prepare the ground for the council of ministers and after the council of ministers you’ve got the heads of state summit,” Pillay said, pointing out that when faced with the question of what to do about Zimbabwe’s non-compliance with the tribunal’s rulings, the logic of the chain broke.

Questioning the review
Bartels’s review of the tribunal’s role, responsibilities and terms of reference was commissioned in November 2010 by the ministers of justice. The final recommendations were approved unanimously by SADC’s senior legal officials in April 2011 but, according to Pillay, the ministers of justice then “questioned this review anew in its fundamental elements”.

“They had a problem, it seems, with individual access to the court, which is bad enough in terms of its implication for human rights. The council of ministers subsequently really stuck the knife in by adopting these concerns and the summit twisted it by closing down the tribunal and mandating the ministers of justice to conduct their own partisan review. What could be more nonsensical than having a review done by an independent consultant and then a second review done by politicians?” he asked.

The concern that the tribunal should not have jurisdiction in matters between individuals and member states was raised by Zimbabwe at a meeting in April this year, but the minutes of that meeting are perhaps more surprising for the fact that Botswana shared Zimbabwe’s reservations and that South Africa, which counts human rights as a foreign policy priority, raised no objection.

In Pillay’s view: “Botswana and South Africa take the position that they have their own strong, independent institutions, but the fact is Botswana is scared of the Kalahari, that indigenous people might apply to the tribunal. That’s why it changed its tune. Then Lesotho became scared about a land-related case which is pending at the summit. It is one of the pending cases that the summit has effectively killed.”

What annoyed Pillay, however, is not so much the fact that Zimbabwe, Lesotho and Botswana would want to trade individual recourse to the regional court for national interest in respect of land, but rather the way that other SADC countries, “especially those like Mauritius who don’t have the same historical hangovers”, have effectively pandered to these concerns.

“Some ministers and heads of state offer this nonsense about the unanimity rule, referring to an article of the SADC Treaty which states that the ‘decisions of summit shall be taken by consensus’. Well of course decisions are taken unanimously, but we made the point that, in international law, the practice has always been that in spite of the unanimity rule a single country with a conflict of interest like Zimbabwe should never be allowed to be judge and party at the same time,” he said.

“Then,” he added, “there are those officials who point to the fact that in terms of recourse, there is a constitutional court in Zimbabwe, but the court is rubbish, my God!” Glancing repeatedly at his watch, his plane departure approaching, Pillay asked for the indulgence of a final point.

“The members of the tribunal are judges. I am a judge. I think about the issues that come before me not in terms of the national standard, or in terms of national sovereignty, but from the angle of discrimination. Currently, the politicians are deciding for us judges and, more importantly, the people who are at the centre of human rights. The future looks bleak but we must fight on to ensure that the justice ministers in their review do not repeal the principles of human rights or deny access to the tribunal of the future to individuals who want to bring cases against their states on those grounds.”

It’s a fitting tie-up, but at the door Judge Pillay returns to a personal grievance that seems to perfectly encapsulate the threat to jurisprudence in the region. “If you can believe it, I’m now being hounded by the registrar for the return of an old printer.”

This article was supported by a grant from the Open Society Foundation. All views are those of the author and the Mail & Guardian