Help revive SADC court, EU told

2012-09-28 00:00

A DECISION by the member states of SADC — including South Africa — to dissolve the region’s court at a meeting in Maputo last month has attracted the attention of the European Union.

The EU helps fund the tribunal, which is the judicial arm of the Southern African Development Community (SADC) and operates in a similar fashion to other international courts of law.

Recently, eminent South African advocate Jeremy Gauntlett SC called on the EU to halt its funding of the tribunal until the body was reinstated in its original form.

The Maputo summit on August 18 effectively banned individuals from approaching the tribunal to resolve cases that cover on a range of issues, among them human rights abuses.

Last year member states agreed to suspend the tribunal until a review of its jurisprudence was completed. No new cases were allowed.

Although SADC said it was ostensibly concerned with the ambit of the tribunal affecting domestic courts, Gauntlett said one of the reasons for its dissolution was undoubtedly political.

Zimbabwe has been an ardent opponent of the tribunal after judges ruled against the government in Harare in some high-profile matters, among them the fiercely contested land grabs that dispossessed white farmers. Zimbabwe refused to recognise the tribunal’s decisions and has lobbied hard to collapse it.

Archbishop Desmond Tutu has also waded into the controversy, criticising SADC. Four judges on the tribunal who were summarily dumped, publicly criticised the decision in June.

According to a letter they sent to the SADC secretariat, the Council of Ministers had already decided a month before at a meeting in Windhoek in May to replace the tribunal.

Since the formal announcement about the tribunal’s fate was made in Maputo, there have been fears expressed that in the absence of a legal platform for individuals to seek redress beyond their domestic courts, democracy and accountability of the member states will come under threat.

A member of the European Parliament, Michael Cashman, who chairs the delegation for relations with South Africa, told The Witness the decision rested entirely with SADC.

But he noted the need for mechanisms to ensure democracy and human rights were upheld — and for that reason, he promised to pursue the issue.

“We need a system which allows individuals to make use of the tribunal, but at the same time ensuring that it is not overloaded with excessive or repetitive demands. It is vital we have mechanisms to hold institutions and states accountable as well as ensuring inter-state respect for and implementation of agreements.”

In the case of SADC, such agreements would refer to the treaty, which acts like a constitution, and the protocol, which governs the tribunal. States party to the treaty are automatically bound by the protocol, and thus the rulings of the tribunal. SADC wants the entire protocol overhauled and the new tribunal to consider disputes between member states only.

Gauntlett, in an article published in yesterday’s Witness, said these disputes in the past had been trivial squabbles.

Cashman, without commenting on Gauntlett’s call for a suspension of funding, vowed to examine the decision more closely.

“As chair representing all external delegations of the European Parliament, I will raise this with the European Commissioner and ascertain any potential negative consequences for the defence and promotion of human rights, which are at the heart, or should be, of every democratic state,” he said.

Ironically, the final dismantling of the tribunal occurred in the immediate aftermath of the Marikana mine shootings. The Department of International Relations referred questions to the Department of Justice, which had not commented by the time of going to press.

• brett.horner@witness.co.za

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