Southern African Development. Community Tribunal. About the. SADC Tribunal

Transcription

1 Southern African Development Community Tribunal About the SADC Tribunal

2 Ensuring regional integration by bringing justice to the SADC I

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4 SADC Tribunal CONTENTS MESSAGE BY THE PRESIDENT... v SUMMARY... vii PART ONE INTRODUCTION... 1 THE PROTOCOL OCOL AND ESTABLISHMENT OF THE TRIBUNAL... 1 A. History of establishment and legal basis... 1 B. Members of the Tribunal... 2 C. Regular Members of the Tribunal... 2 D. The Administration of the Tribunal... 3 MANDATE TE AND JURISDICTION OF THE TRIBUNAL... 5 A. Principal objectives of the Tribunal... 5 B. Scope and basis of the Tribunal ribunal s s jurisdiction... 5 RULES OF PROCEDURE AND EVIDENCE... 5 A. Applicable law... 5 B. Rules of procedure... 6 C. Nature of decisions Advisory Default Interim Contents of decisions Enforcement of judgments... 7 PART TWO INTERNATIONAL TIONAL AND REGIONAL COOPERATION... 8 Links created with regional and international bodies... 8 VOLUNT UNTARY CONTRIBUTIONS AND MAJOR DONATIONS TIONS... 8 PART THREE SUMMARY OF CASES FILED WITH THE TRIBUNAL... 9 A. Case Report for Matters Filed in the SADC Tribunal in B. Case Report for Matters Filed in the SADC Tribunal in PART FOUR MAIN PROBLEMS AND CHALLENGES Concluding Remarks III

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6 MESSAGE BY THE PRESIDENT The establishment and development of a regional Tribunal of this nature is not a simple task, but for those of us who have been and are involved in it, it is a labour of love and a responsibility which we accept with humility and deep sense of obligation to the people of this Region. This booklet has been prepared to give its readers an insight into the Tribunal, what it does and how it is administered and to thus share our optimism about our future. H.E.E.. Dr Luis Antonio Mondlane PRESIDENT. V

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8 SUMMARY The Southern African Development Community Tribunal is established under Article 9 (1) of the Treaty of SADC as the judicial arm of SADC. The SADC Tribunal is charged with the responsibility to ensure adherence to and the proper interpretation of the provisions of the Treaty and subsidiary instruments and to adjudicate upon such disputes as may be referred to it. Since its operationalization, the Tribunal has received a remarkable number of cases and apart from adjudication has been involved in other administrative matters. The Summit of Heads of State and Government which is the Supreme Policy Institution of SADC pursuant to Article 4 (4) of the Protocol on Tribunal appointed the Members of the Tribunal during its Summit held in Gaborone, Botswana on 18 th August The inauguration of the Tribunal and the swearing in of the Members took place on the 18th of November 2005 in Windhoek, Namibia. This marked a very important chapter in the SADC region. Regarding staffing of the Tribunal, on 1 st October, 2006 two regional staff namely the Librarian and Finance and Administration Officer together with four local staff from Namibia namely the Personal Assistant, the Administration Clerk, the Driver and Court Orderly reported for Work at the Tribunal. On 21 st November, 2006 the Registrar of the Tribunal was sworn in at a swearing in ceremony in Windhoek, Namibia presided over by the President of the Tribunal His Excellency Dr Luis Antonio Mondlane. On 1 st December, 2006 the Registrar officially reported for duties. This marked an earnest commencement of activities of the Tribunal. The subsequent recruitment of two more local staff namely the court clerk and driver/messenger in April and June 2007 respectively fully complemented the skeletal staff of the Tribunal. January 18 th, 2007 is a dark day in the History of the SADC Tribunal. The Tribunal House caught fire and the entire court room, court equipment and several staff offices were completely destroyed by the inferno. It is however pleasing to state that the Host Government the Republic of Namibia has reconstructed the Tribunal to its original state. A Task Team was mandated by Council of Ministers in 2006 to establish the Organizational Structure of the Tribunal and the Terms and Conditions of Service for the Members of the Tribunal and Staff of the Tribunal. The Team which comprised Mr Dennis Khama (Namibia), Mr Molete Mosae (Lesotho) and Mr Hendrix Tonde (SADC Secreatariat) was integrated by the Registrar in March, The recommendations made by the Task Team have been substantially approved by Council of Ministers in August On 26 th April, 2007 the Tribunal conducted the first stakeholders Workshop on the Role of the SADC Tribunal in Regional Integration. The Workshop was funded by Friedrich Ebert Stiftung of Germany. It was officially opened by the Hon. Chief Justice of Namibia, Mr Justice Peter Shivute. VII

9 From May 19 th -30 th 2007 all the Regular Members and the Registrar went on a Study Tour of comparable institutions. They visited the following institutions: 1. Hague Conference on Private International Law (The Hague-Netherlands) 2. The International Criminal Tribunal for Former Yugoslavia (ICTY) the Hague-Netherlands. 3. The International Court of Justice (ICJ)-Hague, Netherlands. 4. The European Court of Justice (ECJ)-Luxembourg City-Luxembourg. 5. The European Court of Human Rights (ECHR) Strasbourg City-France. From 1 st - 13 th July, 2007 the President and the Registrar participated in Commonwealth Meetings of Justices and Registrars of Final/Regional Appellate Courts in Luxembourg City, Luxembourg, the Hague, Netherlands and London the United Kingdom. Also in attendance were the Following Institutions; the Economic Community for West African States Court of Justice, the Common Market for East and Southern African Court of Justice, the Caribbean Court of Justice, The High Court of Australia, The Supreme Court of Canada and the Commonwealth Secretariat. During these meetings, the delegation visited the following Institutions; the International Court of Justice (ICJ), the International Criminal Tribunal for Former Yugoslavia (ICTY), the House of Lords and the Judicial Committee of the Privy Council. Equipped with the knowledge and experience that was acquired during these study tours, Members and the Registrar forged ahead in order to see to it that the Tribunal was a reality. August 27 th, 2007 was a Historical moment for the SADC Tribunal. The first case was registered at the Tribunal by a Malawian citizen against the SADC Secretariat. The case is registered as matter No. SADC (T) 1 of 2007 between Mr Ernest Francis Mtingwi and SADC Secretariat. This case seems to have opened the doors to the Tribunal as several cases have been filed with it. In October 2007, the Tribunal received a grant from the Open Society Initiative for Southern Africa. The objective of this grant was to assist the Tribunal in the following areas: To publicise the existence of the Tribunal in the region; To ensure that the Legal fraternity is aware and use the Tribunal to redress people s real problems; To enhance the Tribunal s institutional capacity; To assist the Tribunal to have a strategic plan; To assist the Tribunal to come up with a website and a logo. The Tribunal therefore has started executing its mandate in terms of Article 16 (1) of the Treaty of SADC. As SADC moves forward to achieve its objectives, the Tribunal shall play a very pivotal role in this integration agenda. VIII

10 INTRODUCTION Part One The SADC Tribunal, the principal judicial Organ of the SADC, established under Article 9 (1) of the Treaty of SADC, consists of not less than ten (10) Members appointed from Nationals of Member States. Each SADC Member State may nominate one (1) candidate having the qualifications required for appointment to the highest judicial office in its territory or persons who are jurists of recognized competence. In accordance with Article 4 (3) of the Protocol on Tribunal, Members of the Tribunal are selected by the Council from the list of candidates nominated by Member States. The Members are appointed by the SADC Summit. During the 2007/2008 financial year the Tribunal focused on the following activities: 1. Finalize a study on Organizational Structure and Terms and Conditions of the Members and Staff of the Tribunal. 2. Continue implementing the interim Terms and Conditions of the Tribunal. 3. Manage office operations. 4. Put in place the processes in order to hear cases that are brought to the Tribunal. THE PROTOCOL OCOL AND ESTABLISHMENT OF THE TRIBUNAL A. History y of establishment and legal basis The SADC Treaty Article 9(1) (g) provides for the establishment of a Tribunal for the Regional body. In principle therefore the Tribunal was established in 1992 by Article 9 of the SADC Treaty as one of the institutions of SADC. Practically, the Tribunal was constituted in terms of the Protocol to the SADC Treaty wherein Article 2 says that the Tribunal of the Community (hereinafter referred to as the Tribunal ), is hereby constituted in terms of Article 16 of the Treaty and shall function in accordance with the provisions of the Treaty and this Protocol. Pursuant to this legal basis, the Summit of Heads of State and Government which is the Supreme Policy Institution of SADC pursuant to Article 4 (4) of the Protocol on Tribunal appointed the Members of the Tribunal during its Summit of Heads of State or Government held in Gaborone, Botswana on 18 th August The inauguration of the Tribunal and the swearing in of the Members took place on 18 th November 2005 in Windhoek, Namibia. The Registrar of the Tribunal was appointed by the Tribunal pursuant to Article 12 of the Protocol on Tribunal. To ensure the independence of the Tribunal, Article 17 (2) of the SADC Treaty provides that in performance of their duties, the Members of the Tribunal shall be committed to the international character of SADC and shall not seek or receive instructions from any Member States, or from any authority external to SADC. 1

11 B. Members of the Tribunal The SADC Heads of State and Government at its meeting held in Gaborone, Botswana on 18th August, 2005, appointed the following Honourable Members of the Tribunal. The Hon.. Dr Rigoberto Kambovo of Angola The Hon.. Dr Onkemetse B.T.Tshosa of Botswana The Hon.. Justice Isaac Jamu Mtambo SC of Malawi The Hon.. Justice Ariranga Govindasamy Pillay of Mauritius The Hon.. Justice Dr Luis Antonio Mondlane of Mozambique The Hon.. Justice Petrus T.. Damaseb of Namibia The Hon.. Justice Stanley B.. Maphalala of Swaziland The Hon.. Justice Frederick B.. Werema of Tanzania The Hon.. Justice F.M.M.. Chomba of Zambia; and The Hon.. Justice Antonia Guvava of Zimbabwe The Tribunal has power to elect its own President for a term of three (3) years, and currently Honourable Justice Dr Luis Antonio Mondlane is its President. In terms of Article 3(2) of the Protocol on Tribunal, the 2005 Summit designated five (5) of the Members of the Tribunal as regular Members who shall sit regularly on the Tribunal as follows: The Hon.. Dr Rigoberto Kambovo (Angola) The Hon.. Dr Onkemetse B.T.Tshosa (Botswana) The Hon.. Justice Isaac Jamu Mtambo SC (Malawi) The Hon.. Justice Ariranga Govindasamy Pillay (Mauritius) The Hon.. Justice Dr Luis Antonio Mondlane (Mozambique) C. The President resident,, Regular Members and the Registrar Members and the Registrar of the Tribunal. From left to right: front row, H.E. Dr Rigoberto Kambovo (Angola), H.E. Justice Ariranga Govindasamy Pillay (Mauritius), H.E. Justice Dr Luis Antonio Mondlane (Mozambique), H.E Justice Isaac Jamu Mtambo, SC (Malawi). From left to right:back row, H.E. Dr Onkemetse B. Tsosha (Botswana), The Hon. Justice Mankhambira C.C. Mkandawire the Registrar (Malawi) 2

12 D. The Administration of the Tribunal The Registry is the permanent administrative organ of the Tribunal. Since the Tribunal is both a judicial body and a regional institution (with international character), the role of the Registry is both to provide judicial support and to act as an international Secretariat. Thus its work is, on the one hand, judicial and diplomatic, while, on the other, it corresponds to that of a legal, administrative, financial, conference and information department of an international organization. The organization of the Tribunal is on a day to day basis directed by the Registrar who is supervised by the President of the Tribunal. The Registry shall comprise of the Registrar, the Assistant Registrar, and such other staff as are appointed. The Registrar shall be responsible for the day today administration of the Tribunal subject to the overall supervision of the President. In order to kick start the operations of the Tribunal, the following comprised the interim staff of the Registry: The Hon Justice Mankhambira Charles C.. Mkandawire Registrar (Malawi) Ms Susan M.. Moshabesha Libralian (Lesotho) Mr Barudilwe B.. Otimile Finance and Administration Officer (Botswana) Ms Sophie Nikanor Personal Assistant to the Registrar (Namibia) Mr Abert Nghishitende Administration Clerk (Namibia) Mr Dennis Shivangulula Court Clerk (Namibia) Mr David Elieser Driver (Namibia) Miss Matilda Kamati Court Marshall (Namibia) Mr Alpheus Hoveka Driver/Messenger (Namibia) The Registrar with Registry Staff: From left to right:front row, Mr Barudilwe B. Otimile (Botswana), Ms Sophie N. Nikanor (Namibia), Hon. Justice Mankhambira Charles C. Mkandawire (Malawi), Ms Susan M. Moshabesha (Lesotho)From left to right: back row, Mr David Elieser (Namibia), Mr Albert Nghishitende (Namibia), Mr Dennis Shivangulula (Namibia), Metriede Kamati (Namibia) and Mr Alfius Hoveka (Namibia). 3

13 In August 2008, Council approved the Organisational Structure of the Tribunal as recommended by the Task Team. The implementation of this structure shall follow a phased approach with effect from April The job description and evaluation of the establishments of the Tribunal await engagement of a consultant. This will be done in the financial year 2009\10 The Registrar is the regular channel of communication to and from the Tribunal pursuant to Rule 15 of the Rules of Procedure. The Registrar in particular effects all communications, notifications and transmissions of documents required by the Protocol or by the Rules. Apart from the administrative and judicial work, as head of the institution on the ground, the Registrar represents the Tribunal at all State and Diplomatic functions. The SADC Tribunal Organizational Structure 4

14 MANDATE AND JURISDICTION OF THE TRIBUNAL A. Principal objectives of the Tribunal The Tribunal functions in accordance with the provisions of the SADC Treaty and the Protocol to the Treaty establishing the Tribunal. In this light, the primary function of the Tribunal is to ensure adherence to law within the SADC regional block in the interpretation and application of the SADC Treaty and generally to adjudicate on disputes arising within the Community provided they fall under its jurisdiction. The Tribunal will also offer advisory opinions upon all matters which may be referred to it under the Treaty and Protocols, all subsidiary instruments adopted within the framework of the community, acts of Institutions of the Community, and all matters specifically provided for in any other agreements that Member States may conclude amongst themselves or within the Community and which confer jurisdiction on the Tribunal. B. Scope and basis of the Tribunal ribunal s jurisdiction The tribunal has jurisdiction to hear matters on: a) the interpretation and application of the Treaty; b) the interpretation, application or validity of the Protocols, all subsidiary instruments adopted within the framework of the Community, and acts of the institutions of the Community; c) all matters specifically provided for in any other agreements that Member States may conclude among themselves or within the community and which confer jurisdiction on the Tribunal. This jurisdiction is limited to the following: a) The dispute should be between States, and between natural or legal persons and States. b) Any natural or legal person can only bring an action against a State unless he or she or it has exhausted all available remedies or is unable to proceed under the domestic jurisdiction. c) Where a dispute is referred to the Tribunal by any party the consent of other parties to the dispute shall not be required. RULES OF PROCEDURE AND EVIDENCE A. Applicable law The Tribunal applies: a) the SADC Treaty, b) the Protocol on Tribunal and c) other Protocols that form part of the Treaty, d) all subsidiary instruments adopted by the Summit, by the Council or by any other institution or organ of the community pursuant to the Treaty or Protocols, and e) its own community jurisprudence having regard to applicable treaties, general principles and rules of public international law and any rules and principles of the law of Member States. 5

15 B. Rules of procedure The Rules of the Tribunal are made in terms of Article 23 of the Protocol. These rules of procedure are attached to the Protocol creating the Tribunal and can be found at: C. Nature of decisions In terms of the protocol the decisions of the Tribunal must be in writing and delivered in open court and have to state the reasons on which they are based. These decisions shall be taken by a majority and are final and binding. 1. Advisory The tribunal can give advisory opinions which may be requested by the Summit or by the Council in terms of paragraph 4 of Article 16 of the Treaty. 2. Default The Protocol also empowers the tribunal to give a decision in default. However before giving such decision the Tribunal shall satisfy itself that it has jurisdiction over the dispute and that the claim is well-founded in fact and law. In this light, a party against whom a default decision is made may apply to the Tribunal for the rescission of such decision. The protocol requires the applicant to set out the grounds for such application. 3. Interim In terms of the Protocol the Tribunal or the President may, on good cause, order the suspension of an act challenged before the Tribunal and may take other interim measures as necessary. 4. Contents of decisions In terms of the Rules of Procedure, the decision shall contain, inter alia, the following information: the date on which and the place where it was delivered; the names of Members of the Tribunal who participated in the case; the names of the parties; the names of agents, advisors and representatives of the parties; a summary of the proceedings; the submissions of the parties; a statement of facts; the applicable law; the operative provisions of the decision; the decision in regard to costs; and the number and names of Members constituting the majority of the decision. If the Members write separate opinions every opinion written by any Member in any matter shall be attached to the decision of the Tribunal and one copy of the decision duly signed and sealed, shall be placed in the archives of the Tribunal and other copies shall be transmitted to each of the parties. 6

16 In the same vein the Registrar is bound to send copies of the decision to the SADC Council; and other States entitled to appear before the Tribunal. 5. Enforcement of judgments Generally, decisions of the Tribunal are absolutely binding upon the parties to the dispute in respect of that particular case and enforceable within the territories of the Member States concerned. However a decision by the SADC Tribunal is a foreign judgment in all Member States. On this backdrop, individual Member states have rules regarding the registration and enforcement of foreign judgments. These rules are the ones which determine the enforcement of SADC Tribunal judgments. All Member States are expected to respect the judgments of the Tribunal wherever they are bound. Any failure by a Member State to comply with a decision of the Tribunal may be referred to the Tribunal by any party concerned. The Tribunal cannot rule on the failure of a Member State to respect its judgment, instead the Tribunal only has to establish the existence of the failure to comply, if the Tribunal establishes the existence of such failure, it shall report its finding to the SADC Summit for the Summit to take appropriate action. 7

17 INTERNATIONAL TIONAL AND REGIONAL COOPERATION Links created with regional and international bodies Part Two To date, the SADC Tribunal has links with the following institutions: a) The African Court on Human and Peoples Rights in Arusha, Tanzania; b) The COMESA Court of Justice in Khartoum, The Sudan; c) The Commonwealth Lawyers Association in London; d) The Commonwealth Legal Education Association in London; e) The Commonwealth Magistrates and Judges Association in London; f) The Commonwealth Parliamentary Association in London; g) The Commonwealth Secretariat in London; h) The Economic Community for the West African States Court of Justice in Abuja, Nigeria; i) The European Court of Human Rights in Strasbourg, France; j) The European Court of Justice in Luxembourg City, Luxembourg; k) The Hague conference on Private International Law, the Hague, Netherlands; l) The International Court of Justice (ICJ) in the Hague, Netherlands; m) The SADC Lawyers Association, Gaborone, Botswana; n) The East African Court of Justice in Arusha, Tanzania; o) The Caribbean Court of Justice; p) SADC Parliamentary Forum; q) Open Society Initiative In Southern Africa (OSISA). Voluntar oluntary y contributions and major donations The SADC Library has so far received donations in the form of books/documents from various organizations. A list of the donations is shown below. 1. On the 21st of May, 2007, the Tribunal received 14 journals, 20 monographs and 5 books from the Labour Resources and Research Institute of Namibia. 2. On the 23rd of July, 2007, the Tribunal received 14 journals, 15 monographs and 5 books from the SADC Parliamentary Forum. 3. On 10th August, 2007, the Tribunal received 10 Sister Namibia magazines from Buchhandlung bookshop. 4. On 31st of July, 2007, the Tribunal received 20 law books from the European Court of Human Rights (ECHR). 5. On the 5th September, 2007, the Tribunal received 52 books from the Institute for Democracy in South Africa (IDASA). 6. The United Nations Environmental Programme (UNEP) in Nairobi, Kenya has donated various materials on Environmental Law. 8

18 Part Three SUMMARY OF CASES FILED WITH THE TRIBUNAL The Tribunal started hearing cases in December This being the core mandate of the Tribunal, a detailed case management flow chart is tabulated below. a) Cases registered in 2007 = 3 b) Cases registered in 2008 = 14 c) Classification of disputes: i) Disputes between/amongst Member States = 0 ii) Disputes between Natural/Legal persons and Member States = 15 iii) Disputes between employees of SADC and the SADC institution = 2 iv) Referral matters for preliminary ruling = 0 v) Advisory opinion = 0 A. CASE SE REPORT FOR MATTERS FILED IN THE SADC TRIBUNAL IN 2007 B. CASE SE REPORT FOR MATTERS FILED IN THE SADC TRIBUNAL IN

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20 MAIN PROBLEMS AND CHALLENGES Part Four Despite the progress which the Tribunal has made since its establishment, there are several challenges that it encounters. The following are the main ones; a) Access Since the SADC legal instruments permit individuals to submit their disputes after exhausting domestic remedies, this is usually a long process that discourages litigants since the disputes have to follow the queue as all other domestic cases. b) Resources The SADC Tribunal operates on a thin budget. This budget can not sustain the smooth functioning of the court. c) Interaction with Actors Interaction with Judges, Legal Profession, Civil Society and the general public is very vital for the efficient administration of the Tribunal. d) Rules of the Tribunal The Rules of Procedure are not exhaustive. e) Linguistics The SADC Tribunal is a multilingual court. It is therefore encountering problems in translating documents due to difficulties in finding qualified translators with adequate legal knowledge. This causes delays in the administration of justice. f) Logistical issues Members including the President of the Tribunal are based in their respective Member States. This poses a challenge to communicate with them and have matters resolved on an urgency basis. It is also very costly to entertain urgent applications. Concluding Remarks As can be seen from the Report, a lot of activities have taken place since the inauguration of the Tribunal on 18 th November Although the resources both financial and human are thin on the ground, a lot of groundwork has been gained. Now that the organizational structure of the Tribunal has been approved by Council, this shall act as an impetus to accelerate operations of the Tribunal. As the core business of the Tribunal has started, it can safely be said that the objectives of the business plan have been achieved. 11

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22 Kindly sponsored by: SADC TTribunal ribunal P.O. Box O. Ausspannplatz,, Windhoek Ausspannplatz Namibia.. Namibia Tel: ax:: Fax tribunal.org Angola z Botswana z LLesotho esotho z Madagascar z Malawi z Mauritius z Mocambique z Namibia Republique Democratique du Congo z Seychelles z South Africa z Swaziland United R epublic of TTanzania anzania z Zambia z Zimbabwe Republic