Whither the SADC Tribunal

Transcription

1 1 Whither the SADC Tribunal Regional Colloquium on the SADC Tribunal held at Protea Parktonian Hotel From 12 to 13 March 2013; Johannesburg

2 2 Abbreviations CSOs : Civil Society Organisations EAC : East African Community ECOWAS : Economic Community of West African States MDGs : Millennium Development Goals SADC HSG : SADC Heads of States and Governments SADC LA : SADC Lawyers Associations SADC CNGO : SADC Council of Non Governmental Organisations SATUCC : Southern African Trade Union Coordination Council

3 3 Table of Contents Abbreviations... 2 Acknowledgements Introduction Background Objectives Methodology Expected outcomes Summary of the colloquium sessions MARCH 2013: DAY SESSION 1: Opening Session Session 2: Establishing independent and Effective Regional Courts: Lessons Learnt from the East African Community and the Economic Community of West African States (ECOWAS) Session 3: Lessons learnt in utilizing African Mechanisms to address the SADC Tribunal Conundrum Session 4: the SADC Tribunal as Proposed by the 32 nd Summit-Implications for human Rights, the Rule of Law and Access to Justice for SADC and the African Continent March 2013: Day Session 5: Perceptions and Reality-Stakeholder Perspectives on the Role and Purpose of the SADC Tribunal in the Region and Implications for the Future of the SADC Tribunal Positions of and steps taken by stakeholder organizations in the region regarding the suspension of and curtailment of the jurisdiction of the SADC Tribunal Plenary Group Presentations Way forward and Consensus Building ANNEX Communiqué... 26

4 4 Acknowledgements The Southern African Development Community Lawyers Association (SADCLA) and the Southern African Development Community Council of Non- Governmental Organizations (SADC-CNGO) express their gratitude to the various individuals and organizations that contributed towards the successful hosting of the SADC Regional Colloquium on the SADC Tribunal. The two organizations express their gratitude to their executive boards and members, namely the National Non Governmental Organizations (NGO) umbrella organizations and Law Societies and Bar Associations in the fifteen SADC member states. SADC-CNGO and SADC-LA would like to thank their partners, the Norwegian Embassy and the Ford Foundation- Office for Southern Africa for providing the financial support that enabled the two organizations to hold the Colloquium. The two organizations thank also the rapporteurs Mr. Josue Diwambuena and Mr. Junior Kabange for compiling this report. Last, but not least, the two organizations thank their staff for the hard work and commitment displayed in making the Colloquium a success Boichoko Ditlhake Mrs. Makanatsa Makonese Executive Director, SADC-CNGO Executive Secretary- SADC LA

5 5 1. Introduction The SADC Lawyers Association and the SADC council of NGOs, in a collaborative partnership, organized a colloquium on the 12 th and13 th of March 2013 at the Protea Parktonian hotel in Johannesburg to discuss the SADC Tribunal. The Colloquium was part of the overall efforts of civil society aimed at providing space for legal practitioners, researchers, government officials, representatives of labor associations and civil society to reflect on the current situation pertaining to the SADC Tribunal. The theme of the Colloquium Whither the SADC Tribunal? was aimed at highlighting the state of the Tribunal, and encourage critical discussion and examination of ways to extricate the Tribunal out of this state. This report is a synthesis of the deliberations and discussions that took place during the two-day Colloquium. The first part briefly provides a background to the establishment and subsequent suspension of the SADC Tribunal, the objectives of the Colloquium and the methodology that was employed in hosting the colloquium whilst the second part describes the proceedings of the colloquium.

6 Background The SADC Tribunal was instituted in 1992 by member states of SADC in terms of Article 9 of the SADC Treaty for the purpose of ensure[ing] adherence to and the proper interpretation of the provisions of the SADC treaty and subsidiary instruments and to adjudicate upon such disputes as may be referred to it. The motivation for the establishment of such an institution was the need to reinforce democratic governance, human rights, the rule of law as well as adherence to the principle of separation of powers within the region. It is important to mention that the establishment of the Tribunal was seen by various stakeholders including SADC Citizens as a key element in the consolidation of the rule of law, human rights and enhanced access to justice for SADC citizens through the availing of legal recourse for human rights violations at a regional judicial institution. However, despite this progress, the SADC Heads of States and Government Summit held on the 18 th August 2010 took a step backward and suspended the SADC Tribunal pending the review of its role, responsibilities and terms of reference by an independent consultant. This decision followed representations by Zimbabwe which argued that the Tribunal was improperly constituted, as proper ratification procedures had not been followed before the establishment of the Tribunal. It must however be noted that Zimbabwe only raised this issue after the Tribunal had issued judgments on that country s land reform programme which Zimbabwe did not agree with. Despite efforts by civil society in SADC to demand the reinstatement of the SADC Tribunal with its original mandate, the 32 nd SADC Summit held in Maputo in August 2012 decided to reduce the SADC Tribunal to an interstate court; thereby effectively preventing citizens access to the court. This decision was seen as a major set-back to the region s pursuit of the rule of law and human rights enforcement for many reasons; inter alia: The violation of the SADC citizens right to access to justice and effective remedies. The violation of the internationally recognized principles on the independence of the judiciary and the doctrine of the separation of powers

7 7 The violation of the basic tenets of human rights and the rule of law as contained in Article 4 (C) of the SADC Treaty It was an antithesis to the SADC Strategic Indicative Plan for the Organ on Politics, Defence and Security (SIPO) and the consolidation of peace and good governance in the region. It is against this background that SADC-CNGO and SADC-LA convened the Colloquium to bring together civil society, lawyers, the judiciary, governments and experts to reflect, rethink and strategize on short, medium and long term solutions to overcome the challenges faced by the SADC Tribunal and the whole of the facing SADC region in this regard Objectives The specific objectives of the colloquium were as follows: To bring together civil society leaders, activists, practitioners and intellectuals to reflect on and interrogate strategies for an effective way forward to enhance access to justice for SADC citizens To examine past and ongoing SADC Tribunal initiatives and determine mechanisms for coordinating and strengthening these as well as articulating effective, common approaches and goals and To identify available means, capacities and strategies to sustain the initiative to save the Tribunal Methodology In order to achieve the above- mentioned objectives of the colloquium, the organizers used the following approaches and participatory processes: Experience based presentations by representatives of various organizations and networks that have been at the forefront of the civil society campaign and by experts who are close to the decisions of the SADC Summit on the issue Facilitated plenary discussions Working groups to critically analyse the contributing factors leading to decisions of the various SADC Summits and the efficacy of the reactions by civil society to those decisions.

8 Expected outcomes The colloquium was expected to: Develop a clear and common understanding and appreciation of the issues (legal, political and strategic) leading to the suspension of the SADC Tribunal and the subsequent decision by the SADC Summit to make the Tribunal an interstate court Agree on clear, achievable and strategic objectives and activities /plan of action to take the campaign to save the SADC Tribunal forward Identify critical financial resources and expertise to take the initiative forward; and Set up a civil society coordination, monitoring and evaluation mechanism for the initiative. 2. Summary of the colloquium sessions MARCH 2013: DAY SESSION 1: Opening Session The opening session was launched on the 12 th of March 2013 around 9 AM and chaired by the Hon. Judge Thomas Sibusiso Masuku of Swaziland. Through two illustrative cases from Swaziland, he demonstrated a principle which says where there is a right, there must be a remedy. He concluded his introduction by calling upon participants to try as much as they could to come up with relevant resolutions concerning the SADC Tribunal issue. The Honourable Judge then gave the floor to the Executive Director of the SADC Council of NGOs, Mr. Boichoko Dithlake for the welcome remarks. Mr. Dithlake began by inviting the participants to take some steps back in order to appreciate the challenges ahead. In this context, he recalled what the experience during the apartheid period was and how Nelson Mandela and the African National Congress fought for freedom. He also recalled the struggle that led to the establishment of the Pan African Parliament. All this was aimed at encouraging participants at the colloquium and the organizations they represented to continue challenging the decision taken by the SADC Heads of State and Government to initially suspend the SADC Tribunal and the subsequent decision to make the Tribunal an interstate court. He pointed out that there were many challenges that the SADC region was facing, including

9 9 the lack of an independent regional tribunal which went against the rationale that prevailed at the establishment of the SADC. He encouraged members of civil society to continue fighting against the decision of the 32 nd SADC Heads of State and Government Summit to reduce the SADC Tribunal to an interstate court. In this respect, he emphasized the need to have a collective commitment across the SADC region which he said, required a strong civil society, able to mobilise citizens and empower them to make political leaders accountable. As a strategy, Mr. Ditlhake proposed the the development of new and more efficient ways of negotiating with political leaders and of raising the masses to understand the current challenges facing the SADC Tribunal. In this respect, he emphasized the need to have a collective commitment across the SADC region which inter alia requires a strong and active civil society, capable of mobilizing citizens of the region and empower them to make their political leaders accountable. He therefore informed the participants that an awareness campaign had been planned and would be launched at the beginning of April with the intention of collecting five (5) million signatures from citizens of the region as a sign of their disapproval of the 32 nd Summit decision which restricted access to the SADC Tribunal by individuals. In his concluding remarks, he emphasized that the enjoyment of justice rested on the respect of separation of powers, accountability and the rule of law which could never come from the vision of our rulers but rather from the endeavor of the civil society and citizens of the region. Following the welcoming remarks the floor was given to the Deputy Minister of Justice and Legal Affairs of the Republic of Zimbabwe, Hon. Obert Gutu for the opening remarks. Despite the fact that the decision to suspend the SADC Tribunal emanated from Zimbabwe s refusal to comply with the Tribunal s decisions the Hon. Deputy Minister reasserted the principle that When citizens have exhausted all national remedies at their disposal, they must be allowed to appeal to a supra national judicial body such as the SADC Tribunal. Hon. Obert Gutu conceded that the decision to reduce the SADC Tribunal to an interstate court was a step backwards as it circumscribed the meaning of human rights. Therefore, he urged participants to deeply reflect on the current situation affecting the SADC Tribunal and to come up with effective propositions for the way forward.

10 10 The President of the SADC Lawyers Association, Mrs. Kondwa Sakala-Chibiya was the last speaker of the session. She was introduced by the session chair to provide a vote of thanks. The SADC-LA President took the opportunity to welcome panelists and all participants. She expressed her appreciation to the participants for attending the colloquium as their efforts would contribute towards the struggle for the advancement of human rights in the region as well as the establishment of a strong, independent and effective regional judiciary body. She highlighted that the lawyers in the region would not support the SADC Tribunal in the form proposed by the 32 nd SADC Summit as such an institution could not effectively serve the needs of SADC citizens. Mrs. Chibiya thanked the Honourable Deputy of Minister of Justice and Legal Affairs of Zimbabwe for taking time off his busy schedule to attend the colloquium and for providing the opening remarks at the colloquium. After her vote of thanks, Hon. Justice Masuku closed the session and invited participants for a group photograph.

11 Session 2: Establishing independent and Effective Regional Courts: Lessons Learnt from the East African Community and the Economic Community of West African States (ECOWAS) The second session was moderated by Mr. Arnold Tsunga, the Director of the Africa Regional Programme of the International Commission of Jurists. After expressing his gratitude to the co -hosts of the colloquium, he introduced the first panelist, Professor Dr. John Eudes Ruhangisa, the Registrar of the East African Court of Justice. Prof. Ruhangisa started his speech by highlighting that the motivation behind the establishment of the East African Community was to foster cooperation and development among member states. He then informed the audience that he was part of the process that led to the establishment of the East African Court of Justice. In a comparative perspective, he observed that there was a similarity of problems between the two (2) regional organisations, namely SADC Tribunal and the EA Court; and therefore, there was something for SADC to learn from the EAC. For instance, he mentioned that the issue of sovereignty of member states always made it difficult for supranational bodies to function effectively. He also highlighted some features of the East African Community which were not found in the SADC region, such as the superiority that the community law enjoys above the national law. This was especially with regards to the enforcement of judgments of the EAC Court. In addition, he reflected on external and internal factors which affect the effectiveness of a Regional Court. Prof. Ruhangisa spoke about some internal factors such as experience, competence, skills, integrity, independence and impartiality of judges and transparency in the appointment of judges that play an important role in the pursuit of effectiveness of a regional court. He also pointed out other external factors such as the need for political support and the lack of enforcement of courts decisions which is generally interpreted as an expression of lack of political support from organs that established the courts. He pointed out that accessibility to the court is central to the existence of a regional court. He indicated that unlike SADC, the East African Community had set no restrictions on access to the East African Court by citizens of the community, be it in the form of court fees or any other condition. The Court can be accessed freely by the citizens of the region. Nevertheless, he observed that the geographical location naturally limits accessibility of the Court.

12 12 Through an illustrative example from the EAC jurisprudence, he explained how members of a regional court may encounter intimidation attempts from heads of state and government. This was in the case of Any ongn yongo vs Kenya where after the ruling of the EA Court, heads of state and government sought to find reasons for the dismissal of judges in the Community Treaty. In conclusion, he emphasized the role that civil society must play in supporting the community and the regional court. Following Prof. Ruhangisa s presentation, His Excellency, the Chief Registrar of the ECOWAS Court of Justice, Mr. Tony Anene- Maidoh, took the stage. He started by giving an overview on the rationale for the establishment of the ECOWAS Court of Justice. He stated that the motive was to create a court whose responsibilities were to resolve the disputes regarding the interpretation and application of the provisions of the Treaty among member states. He mentioned that although the Court was confined to an interstate court at the beginning, its jurisdiction had been extended to include individual access through the adoption of a supplementary Protocol in January This was to give citizens access to the court especially with regards to human rights issues. Indeed, in respect of human rights, he noted that the mandate given to the ECOWAS Court of Justice was fluid and indeterminate and as such it represented a bigger opportunity to uplift these fundamental rights because judges were entrusted to apply the African Charter on Human and People s Rights and any other human right instrument. In addition, he stated that the ECOWAS court had some organisational features that the SADC Tribunal may borrow. These are, for example, exhaustion of local remedies not being a precondition to approach the ECOWAS court, the involvement of a small judiciary council and the chief justices of member states to guarantee the independence and transparency of the appointment process of judges and finally the precedence of the regional court decisions vis-a-vis the domestic ones. He concluded by saying that the 32 nd SADC summit decision to reduce the SADC Tribunal to a mere interstate court was a backward step compared to what transpired at the ECOWAS Court of Justice where the initial decision to make the Court an interstate one was overturned by a subsequent and more progressive decision to make the court accessible by individuals. Recalling the role that civil society had played in the extension of the mandate of the ECOWAS Court, he urged civil society within the SADC Region to keep on fighting against the decision on the curtailment of the SADC Tribunal jurisdiction.

13 13 At the conclusion of Hon Maidoh s presentation, the floor was opened for plenary discussions Plenary Discussion 1 During the plenary discussions, some of the questions raised were: Whether a lack of common understanding of what justice is within the SADC region was responsible for the situation that the Tribunal found itself in. Were there any other formal mechanisms that civil society could use to engage with regional leaders in addition to litigation and advocacy? Finally, how to get the political support needed to enforce decisions of the regional court In response to the questions raised above, Prof. Ruhangisa emphasized the need to educate and assist citizens to understand what justice is. With regard to the second question, he stated that in the East African Region, there was a formal recognition of a platform for NGOs to discuss with the EAC institutions. Concerning the issue of lack of political support, he adopted the view that what is important is not to rely on politicians promises in cases involving the government, but rather to rely on lobbying as an effective strategy. In addition, Hon. Tony Anene Maidoh added a concrete example on the engagement of the CSOs in the ECOWAS community in which the CSOs came together in a meeting from which they generated the 2012 Abuja Declaration Session 3: Lessons learnt in utilizing African Mechanisms to address the SADC Tribunal Conundrum The Hon. Chief Justice of the Republic of Tanzania, Mr. Mohamed Chande Othman, who chaired this session, opened the session by highlighting the importance of this colloquium and questioned whether the 32 nd SADC Summit decision to reduce the SADC Tribunal to an interstate court was an informed decision by the leaders of the region. Immediately after, he gave the floor to the Executive Director of the Southern African Litigation Centre, Ms. Nicole Fritz. The latter shared with the participants the various steps taken by her organization regarding the suspension of the SADC Tribunal. She mentioned that the Southern African Litigation Centre had worked closely with the SADC Lawyers Association as well as with a number of

14 14 other civil society organizations in the region in attempts to secure the revival of the SADC Tribunal. In this respect, she informed the meeting that in 2011, they visited many countries in SADC and engaged Ministers of Justice and Attorneys General on the SADC Tribunal issue. Furthermore, she mentioned that through the Pan African Lawyers Union and SALC, a request was made to the African Court on Human and People s Rights to provide an advisory opinion on the legality of the SADC Tribunal suspension and attendant legal issues. She concluded by saying that although the advisory opinions are not legally binding upon states, the aim is to engage further the governments of the region once the legal opinion has been rendered. Thereafter, the floor was given to Mr. Willie Spies, a Lawyer and Afriforum Legal Representative, who reflected on the enforcement of the SADC Tribunal judgments. Through illustrative cases on the violation of human rights of farmers in Zimbabwe, he regretted that the SADC Tribunal decisions condemning the Zimbabwean government were considered as nonsense and of no consequence by President Robert Mugabe; and failed to be enforced. He explained all the processes in the Freeth and Campbell cases, from the granting of interim relief by the SADC Tribunal to the communication lodged before the African Commission on Human and People s Rights. Mr. Spies concluded by saying that that there was potential in the African Commission to enforce the SADC Tribunal decisions. Thereafter, Hon. Mohamed Chande Othman opened the floor for plenary discussions Plenary Discussion 2 This plenary discussion was marked by a suggestion to engage with judges and the courts in SADC rather than with politicians. It was also suggested that SADC CSOs should closely follow the evolution of both the advisory opinion requested from the African Court and the communication before the African Commission in order to use any positive outcome as a legal ground to fight the SADC HSG decision and reinstate the SADC Tribunal.

15 Session 4: the SADC Tribunal as Proposed by the 32 nd Summit-Implications for human Rights, the Rule of Law and Access to Justice for SADC and the African Continent After lunch, the President of the Law Association of Zambia, Mr. James Banda chaired the last session of the day. The floor was given to Professor Michelo Hansungule, from the University of Pretoria Centre for Human Rights. Professor Hansungule started by giving general comments on some issues already addressed in previous presentations. In this respect, he emphasized that political will goes beyond signatures and ratifications of protocols, requiring that issues such as the implementation of the SADC Tribunal decisions are taken seriously. He also emphasised the necessity for CSOs to engage with SADC Ministers of Justice and fight for what they believe is right. Coming down to his paper, he started his presentation by recalling the experiences within the inter-american and the European Human Rights Systems.

16 16 He observed that though initially both systems were the result of a political process at their genesis, the enforcement machineries established by their respective conventions and protocols managed to take into account human rights as the years went by. This was to underline the idea that though the process to establish a court is often political at first, it should not prevent this institution from working independently and delivering efficient decisions to uplift human rights. He further observed that there were many other viable options for citizens of the region beside the SADC Tribunal, such as the enforcement mechanisms set up in the United Nations system, the African Charter on Human Rights and People s Rights and the COMESA Treaty which all promote the protection of human rights. He however warned that the existence of these options must not be taken as a reason to consider that the case of the SADC Tribunal was lost. On the issue of access by individual to judicial and other bodies, he observed that the African Commission offers the most open locus standi rules on the continent Plenary session 3 During the plenary session, participants made the following interventions: Whether the experiences of other continental systems were relevant to Africans Whether there was value in having several regional courts when there was already one continental court, i.e., the African Court on Human and People s Rights? Answering the first question, Prof. Hansungule pointed out that experiences of other continents were relevant for Africa in the context of human rights. He pointed out for instance the fact that African supranational courts could learn from the effective enforcement of judgments delivered by the European Court. Regarding the second question, His answer was that all these regional courts make a practical sense to the people, because they are closer to victims compared to one continental court which is far away from victims and which might become overwhelmed if it has to deal with all cases coming from the whole continent without a regional filtering process.

17 March 2013: Day Session 5: Perceptions and Reality-Stakeholder Perspectives on the Role and Purpose of the SADC Tribunal in the Region and Implications for the Future of the SADC Tribunal The Session Director, Mrs. Maureen Kondowe opened up the session and invited one of the rapporteurs of the colloquium, Mr. Junior Kabange to give an overview of the activities conducted on the first day. After the recap, Mrs. Kondowe gave the floor to Mr. Onalethata Kambai, a Private Attorney from Botswana. Mr. Kambai started by highlighting important aspects that have to be considered when talking about the curtailment of the SADC Tribunal. He then recalled the motivation behind the establishment of the Tribunal which was to strengthen democratic governance, human rights, the rule of law and adherence to the principles of separation of powers within the region. In this regard, he clarified the difference between the rule of law and the rule by law. He observed that the former (rule of law) implies that power must be exercised in respect of fundamental principles entrenched in the law, including human rights; whereas the latter (rule by law) suggests that power may be exercised anyhow as long as it is done in accordance with law, regardless of the legitimacy of the law which may even be in violation of human rights. For instance, in relation to the rule by law, in South Africa, during Apartheid, there were some laws that were enacted to legitimize the oppression of certain people. He pointed out that the decision on the curtailment of the SADC Tribunal was also an example of the rule by law. He mentioned some important attributes which the SADC Tribunal should have as an international court. In this regard, he suggested that should the reinstatement of the Tribunal take place, factors such as a credible system of accreditation of lawyers should be in place, judges should be appointed on a full time rather than part-time basis, member states should sufficiently fund the Tribunal and the issue of sovereignty should be properly understood in the context of the operations of regional courts. Lastly, he called for a formal cooperation among regional courts in order to facilitate the enforcement of laws across regions and to share experiences. Mr. Glen Farred, Programme Manager - Poverty and Development at the SADC CNGO was the next presenter. He began by giving an overview of the

18 18 establishment of the SADC-CNGO whose main purpose is to be an interface between civil society and member states to advance the aims of SADC. Coming to his presentation, Mr. Farred elaborated on the issue of the SADC Tribunal from a socio- economic and development perspective. In this regard, he spoke about the relationship between development and human rights. He reiterated that fundamental rights that have implications for development such as access to education, access to clean water and access to food for children should be regarded as justiciable. Unfortunately, in respect of the Millennium Development Goals (MDGs), he mentioned that out of all countries in Sub Saharan Africa, only Botswana was likely to achieve the defined objectives by He concluded by saying that the current debate on the SADC Tribunal must go beyond pure legal perspectives and also embrace the issue of how to include a socio-economic content in the SADC Treaty. In this respect, he pointed out the need to renegotiate the social contract between SADC citizens and heads of state and government. Thereafter, the floor was given to the last panelist of the session, Mr. Last Tarabuku, a member of the Zimbabwe Congress of Trade Unions, representing the SATUCC, to give the position of his organization regarding the current situation of the SADC Tribunal. He began by commenting on the presentation by Mr. Spies from a labour perspective and rhetorically asked what became of the three hundred thousand (300000) workers who were previously employed by white commercial farmers in Zimbabwe. Coming to his presentation, he mentioned that his organization was opposed to the decision to reduce the Tribunal to an interstate court as they believed that the Tribunal should be accessible to both states and individuals. In conclusion, he emphasized the need to look at human rights issues from a labour perspective such as issues related to decent working conditions, social security etc.

19 Positions of and steps taken by stakeholder organizations in the region regarding the suspension of and curtailment of the jurisdiction of the SADC Tribunal SADC LA The SADC LA Executive Secretary Mrs. Makanatsa Makonese recalled that the decision to suspend the SADC Tribunal was taken in Windhoek, Namibia in August 2010 during the Summit of SADC Heads of State and Government. The suspension was supposed to be for a period of six months pending a review of the roles, responsibilities and terms of reference of the Tribunal. She indicated that whilst the suspension of the Tribunal was motivated by bad faith on the part of Zimbabwe and the SADC leaders, SADC LA did not see anything fundamentally wrong with the review of the operations of the court since that is a normal process in the operations of courts, both national and international. In this respect but also to ensure public participation in the review process, SADC LA, Southern African Litigation Centre and the International Commission of Jurists organized various activities in order to contribute to the review process. For instance, a regional colloquium similar to the current one was organized in January 2011 and another one in July 2011 where lawyers; judges of the region as well as the private consultants hired by SADC were invited to reflect on and provide some inputs for the review process. Meetings were also organized with the SADC Secretariat, particularly with the SADC Legal Unit in order to present the recommendations of the colloquium. It is important to mention that some of these recommendations were taken into consideration in the drafting of the Draft Protocol amending the Protocol on the SADC Tribunal by Ministers of Justice, Attorneys Generals and senior legal officers from the region which was submitted to the 2011 SADC Summit but unfortunately, this summit did not adopt these recommendations as they did not meet their expectations and they ordered the Ministers of Justice and Attorneys General to continue with the review process and submit the report at the 2012 summit. Following the decision of the 2011 Summit, SADC LA and its partners organized meetings with various governments in the region, especially with Ministers of Justice and Attorneys General to advocate for the lifting of the suspension of the SADC Tribunal and to ensure that upon being re-opened, the SADC Tribunal would retain its original mandate,. Some of the Government officials agreed

20 20 with some of the SADC LA recommendations, including the need to reinstate the SADC Tribunal with its original jurisdiction. Surprisingly, the 32 nd SADC Summit of Heads of State and Government in 2012 did not reinstate the Tribunal as expected but rather decided to curtail the SADC Tribunal by only giving it inter-state jurisdiction. Finally, SADC LA reminded the participants of the case before the African Court which was lodged by the Pan African Lawyers Union and the Southern African Litigation Centre requesting for an advisory opinion on the legality of the decision to suspend the Tribunal Zimbabwe Lawyers for Human Rights Ms. Irene Petras highlighted that the major lesson learnt in the advocacy work around the SADC Tribunal was the need for original, cohesive and massive engagement of civil society and the importance of linkages among civil society to break down and understand the issue in order to tackle the issue effectively Plenary Discussion 4 After these presentations, Mrs. Kondowe opened the plenary discussion during which three main ideas were developed. Firstly, the idea that there was need to improve strategies to involve lawyers at the domestic level in the lobbying to obtain the reinstatement of the SADC Tribunal Secondly, the idea that strategies must be implemented in order to find ways of providing the citizens of the region with knowledge, understanding and information regarding the rule of law; and Thirdly, the idea that it is imperative that the discussions on the SADC Tribunal should go beyond lawyers bodies and include different sectors of society that have an interest in the reinstatement of the Tribunal Plenary Group Presentations After the tea break, delegates were divided into three (3) small facilitated groups in order to deal with sub issues related to the suspension of and curtailment of the jurisdiction of the Tribunal and thereafter they presented their resolutions as follows:

21 Group 3 This group looked at the potential reasons that may have led to the suspension of the Tribunal, the achievements and challenges of the Tribunal and the strength and weaknesses of the strategies that had been employed thus far for its reinstatement. The group s discussions concluded that: The Tribunal s mandate was presumably a threat to the regimes in power There was a belief that the SADC Tribunal jeopardized the sovereignty of member states There was a clash between the socio-political dynamics and the legal obligations of various countries. There was a dichotomous understanding of the purpose of the Tribunal between political leaders and citizens of the SADC region One of the lobbying countries (Zimbabwe) was the first to be required to enforce a decision of the Tribunal and therefore fought hard to avoid enforcement. Concerning the achievements of the Tribunal, the group highlighted the following: The fact that the tribunal itself came to existence The Tribunal granted many rulings giving citizens the opportunity to have their human rights enforced. As challenges, they highlighted the following: The fact that the orders of the Tribunal were not effectively enforced The procedures of the Tribunal itself were complicated and unclear The Tribunal s decisions have not been tested in any domestic jurisdiction in terms of enforcement at national level The lack of funding as a threat to the efficient administration of the Tribunal The lack of strong political will to have an effective Tribunal Adverse political interference in the Tribunal s operations Member states undermining the jurisdiction of the Tribunal

22 22 Concerning the weaknesses of the strategies, the group came up with the following: The lack of engagement of all structures in member states at national level, especially lawyers at the national levels The lack of involvement of more lawyers from the SADC region in the case lodged at the African Court in respect of the advisory opinion Recommendations The group underlined the following suggestions: The need for SADC lawyers to be involved at all the processes of the lobbying The need to carry out the lobbying at international levels with strategic organizations and The need to establish an alliance with all interested stakeholders that are formally registered at regional and national levels Group 2 The second group discussed the rationale for the suspension of the Tribunal as well as the new strategies for its reinstatement Regarding the possible motivation for the suspension of the Tribunal, the group highlighted the following: The SADC Heads of State and Government had the perception that the Tribunal was acting against their mandate and as a result of this fear, they reacted in the manner they did. The unwillingness of the Republic of Zimbabwe to comply with the rulings of the Tribunal The massive influence that older leaders have on other Heads of State and Government of the region. Concerning the new strategies to be adopted, the group indicated that: There was need for the lobbying strategies to be revised as previous ones were not effective Civil society should have started with the mobilization of the citizens of the region and perhaps some of the challenges could have been avoided.

23 Recommendations As recommendations, the group suggested that: Should the Tribunal be reinstated, the new Tribunal should have human rights and economic mandate and it should be independent. Civil Society should continue engaging with various governments of the region in order to convince them to reinstate the Tribunal Group 1 This group dealt with the key achievement of the Tribunal as well as its challenges and they highlighted the following in their report back: The Tribunal dealt with 19 cases including cases of human rights violation. Cases from countries such as Lesotho, the Democratic Republic of Congo Zimbabwe and those involving employees of SADC were dealt with. The Tribunal developed regional jurisprudence With regards to challenges, the group underlined the following: o It was difficult to enforce the decisions of the Tribunal o Judges were not permanent employees of the Tribunal o Physical accessibility of the court was a major challenge o There was lack of adequate funding as the Tribunal was funded by member states who were not providing adequate resources o There was a general lack of awareness by SADC citizens about the Tribunal, its mandate as well as its existence Recommendations The group recommended the following activities as some of the strategies to ensure the reinstatement of the colloquium: Civil society should embark on awareness campaigns in order to sensitize citizens of the region about the issue The working conditions of judges once the Tribunal is reinstated should be improved There is need for the Tribunal s decisions to be enforced and Lastly, there is need to improve the accessibility of the Tribunal by creating sub registries across member states in the region.

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25 25 3. Way forward and Consensus Building The participants to the colloquium recommended that: Civil Society, including individuals in the SADC region must work together to ensure that the SADC Tribunal is reinstated as an independent regional court; An alternative Protocol on the SADC Tribunal should be drafted as an advocacy tool to ensure the reinstatement of the SADC Tribunal as a strong regional court and not one with whittled down powers; Civil Society, at both national and regional levels, should improve sensitization, lobbying, advocacy and other efforts, which are adapted to the circumstances in the local jurisdiction Bi-lateral engagement strategies should be employed with the Executive Branches, Parliaments and Judiciaries in the SADC region by a coalition of civil society organizations, led by various groups, which have good rapport with State organs within the national jurisdictions; Civil Society must explore avenues for litigation at the national level to test the accountability of the Heads of State and Government as regards the decision made by the 32nd Summit to make the Tribunal an interstate court; and Resource-mobilization strategies must be implemented to ensure the successful attainment of all of the above strategies.

26 26 4. ANNEX 4.1 Communiqué 1. The SADC Council of NGOs and the SADC Lawyers Association convened a Regional Colloquium on the SADC Tribunal on 12th and 13th March, 2013 in Johannesburg, South Africa attended by high-ranking government and civil society officials including Chief Justices, Ministers of Justice, Registrars of regional courts, Presidents and representatives of Law Societies in the SADC Region, Retired Judges and Attorneys General from the SADC Region, lawyers, academicians, and Chairpersons, Executive Directors and Chief Executive Officers of key civil society organizations (including trade unions) in the region. 2. The objective of the Colloquium was to reflect, rethink and strategize on short, medium and long-term solutions following the decision of the 32nd Summit of Heads of State of the Southern African Development Community (SADC) held in Maputo, Mozambique in August 2012, which resolved that a new protocol on the Tribunal should be negotiated and that its mandate should be confined to interpretation of the SADC Treaty and Protocols relating to disputes between Member States. 3. Aware of Article 16 of the SADC Treaty, which established the SADC Tribunal as the final arbiter on the interpretation of the provisions of the SADC Treaty and its subsidiary instruments, and to adjudicate upon such disputes as may be referred to it; 4. Concerned about the implication of the decision by the 32nd Summit on the spirit of the SADC Treaty, which provides for a people-centred and pro-poor regional integration and development process for the SADC region; 5. Cognizant of and ascribing to the universality, inviolability and indivisibility of human rights as enshrined in the African Charter on Human and Peoples Rights and the Universal Declaration of Human Rights; The Colloquium: 6. Assessed the efforts hitherto made by the SADC civil society to engage various SADC organs and key government players on the suspension of the SADC Tribunal; 7. Shared experiences from Regional Courts in West Africa and East Africa;

27 27 8. Examined the implications of the 32nd SADC Summit decision; and 9. Considered the perspectives of various stakeholders in the SADC region, including trade unions, SADC Parliamentary Forum, NGOs, judges, and lawyers associations; Then the Colloquium agreed: 10. That the resolution by the 32nd Summit effectively bars SADC citizens (legal and natural) from accessing the Court and therefore, violates Article 16 of the SADC Treaty; 11. That all SADC organs must promote and protect social justice; 12. On the importance and centrality of regional courts in fostering regional integration and development cooperation amongst member states; 13. On the existence of a regional court, which is independent (in its decision making and its management), with competent, adequately remunerated and impartial judges who are persons of integrity; 14. On the fact that regional integration requires cooperation between, and the ceding of certain aspects of sovereignty by, member states; 15. That regional courts must be accessible to all citizens (legal and natural); 16. That the engagement by civil society with SADC organs on the issue of the reinstatement of the SADC Tribunal to its original mandate has not borne fruit to date; and 17. On the need for a different strategy for re-engagement with SADC organs and member states.

28 28 As a way forward, therefore, the Colloquium resolved that 18. Civil Society, including youth and women focus groups, in the SADC region must work together to ensure that the SADC Tribunal is reinstated as an independent regional court; 19. An alternative Protocol on the SADC Tribunal be drafted as an advocacy tool to ensure the reinstatement of the SADC Tribunal as a regional court; 20. Civil Society, at both national and regional levels, must scale up sensitization, lobbying, advocacy and other efforts, which are adopted to the circumstances in the local jurisdiction; 21. Bi-lateral engagement strategies must be employed with the Executive Branches, Parliaments and Judiciaries in the SADC region by a coalition of civil societies, led by group(s), which have good rapport with State organs within the national jurisdictions; 22. Civil Society must explore avenues for litigation at the national level to test the accountability of the Heads of State and Government as regards the decision on the SADC Tribunal made by the 32nd Summit; and 23. Resource-mobilization strategies must be implemented to ensure the successful attainment of all of the above strategies. Issued by the President of the SADC Lawyers Association, Mrs. Kondwa Sakala- Chibiya and the Executive Director of the SADC Council of NGOs, Mr. Boichoko Dithlake, at the Protea Parktonian Hotel in Braamfontein, Johannesburg on Wednesday, 13th March, 2013 as the Official Communique of the SADC Regional Colloquium on the SADC Tribunal.