House of justice has been pulled down

2012-09-27 00:00

LAST month, the Summit of the Southern African Development Community (SADC) took place in Maputo. The Summit — a treaty organ comprising the heads of state of the 14 members of SADC — issued a communiqué announcing that it intended dismantling the current SADC Tribunal. This is the sequel to the summit’s suspension of the tribunal last year.

In its place will be put a new tribunal, permitting no individuals access. The tribunal will be stripped of its current jurisdiction which allows that. It will become an adjudicator of inter-state disputes. In the past 20 years, these have comprised a dispute first between South Africa and Namibia, then Angola and Namibia, over the emergence of sandbanks in the estuaries of the meandering rivers which mark both borders; a similar squabble between Botswana and Namibia over a less evanescent but equally minute island in the middle of a similar river border; and now a dispute whether by colonial treaty Malawi truly owns Lake Malawi (not one yet evinced by the phlegmatic inhabitants of the latter).

No international human rights issues in any of these instances. No access to the SADC Tribunal by any individual in any member state, in any of these circumstances.

The road to this terminus in Maputo for regional human rights and international law needs explanation.

On August 17, 1992, the heads of state of the 14 members of SADC signed the SADC Treaty. This provided for the setting up of the tribunal. All the member states signed and ratified it.

Crucially for the dispute which followed, the treaty also provided that the composition, powers, functions, procedures and other related matters governing the tribunal shall be as prescribed in a protocol. Later, Article 16 was amended to make it clear that this protocol, the Protocol on the SADC Tribunal, was an integral part of the original treaty, requiring no further ratification.

Zimbabwe — although itself appointing a judge as a member of the tribunal and repeatedly appearing before it, until awards were made against it — has come to challenge the tribunal and its awards as a nullity, on the basis that it itself has not ratified the Protocol on the Tribunal.

Zimbabwe’s legal contentions have been resoundingly rejected, most notably by an independent legal review commissioned by SADC and carried out by Cambridge’s Dr Bartells. But through a campaign of incremental mobilisation of support for its antipathy for the tribunal, it has brought home to other leaders in the region the implications of tribunal rulings being made progressively against them. The result is the Maputo communiqué by the summit, stripping the tribunal of its human rights jurisdiction.

The summit took place on the day of the deaths at the Marikana mine in South Africa, which has served to bury the news and avert the deserved international outcry.

The preceding 18 months had first seen SADC’s Council of Ministers — its ministers of justice and attorneys-general — at Zimbabwe’s prodding in effect suspend the operation of the tribunal, at least as regards taking new cases. But that was not enough for Zimbabwe, because cases against it had already been lodged and were up for listing. The initial compromise was the commissioning of the independent review by Bartells, to which I have referred. This reported in overwhelmingly favourable terms, as regards the tribunal’s jurisdiction (particularly its international human rights jurisdiction in respect of all individuals in SADC states) and functioning.

This was clearly not the desired answer, at least as far as Zimbabwe was concerned. The Council of Ministers, nonetheless, did not recommend to summit the abolition of the crucial human rights jurisdiction. Yet the summit overruled the council, and that is why this result came to pass in Maputo. Why?

I venture two answers. This is realpolitik. It must have been explained to a country such as Botswana that its manner of treatment of the San people would be set to be challenged, soon, before the tribunal.

Botswana’s own courts have upheld its government’s actions. It is open to question whether those actions would pass muster in terms of Botswana’s human rights obligations under the treaty. Or take Malawi, which, like Uganda (not a SADC member), entrenched criminal law provisions and discrimination enforced, often brutally, against gay people. Or Rwanda. Or South Africa itself, justly proud of a flagship constitution, but with a recurrent nostalgia for old ways of controlling the media and the legal profession, or subjecting rural women, bearing the greatest burdens of poverty and marginalisation, to a regime of customary law and traditional courts. These are just a few illustrative examples.

All power, said George Orwell paraphrasing Lord Acton, is delightful: absolute power is absolutely delightful. Where countries function under own constitutions, with own courts, selected by own processes, why would leaders want to subject themselves to any further and less manageable constraint?

The second answer is more rooted in legal reasoning. Lord Steyn has suggested that the European Communities Act 1972 “is a truly fundamental law”: Community law “is a higher legal order than domestic law and within its sphere the Luxembourg Court is the supreme judicial authority in our country”. For me, in relation to SADC, it is not.

You see, it is said, for this mess of international potage you have sold out on sovereignty. That you cannot do: the member state’s constitution is the highest law. If it permits involuntary polygamy or circumcision at customary law, or active discrimination against or prosecution of homosexuals, or for that matter, genocide, there can in logic be no higher recourse.

Why Lord Steyn’s hierarchy is false for SADC is this. The treaty and protocol create no appellate court. Their first premise is the exhaustion of any remedy in domestic law before the domestic court. Their second premise entails the inquiry whether the international-law obligation created for a member state in favour of individuals resident within it gives another remedy. That is not at the level of municipal law. It is not immediately exigible in the domestic court. It arises only on award by the tribunal.

At this critical juncture, the SADC Treaty learnt from the long litany of failures in enforcing international law obligations. How is the international-law pronouncement by the tribunal at its seat in Windhoek to make an iota of practical difference in Chinhoyi or Lilongwe or the Kgalagadi Pans?

The treaty firstly makes the protocol an integral part of the treaty itself (defeating in anticipation a drawing back by a member state, as Zimbabwe has done, from ratification of the protocol). It secondly creates a mechanism (in Article 32 of the protocol) for the registration in member states of awards, as if they were ordinary foreign judgments.

And so the international law award is not left to languish. It is domesticated. Its breach gives rise not only to the prospect of international sanctions against the member state by the summit, but also to the consequences which defiance of any domestic court order should attract, in any country where the domestic courts are truly courts and their judges truly judges.

This is not to make the SADC Tribunal “the highest judicial authority”. It is a different judicial authority. Its jurisdiction only exists in international law. But it asserts and enforces a different competence, one to which each member state bent its knee, pre-emptively and for the life of its membership of the community of states, on its ratification of the treaty.

This is, of course, the particular nightmare of the rogue state. It may take great care, as Zimbabwe has done, to amendments to its Lancaster House Constitution of 1980, and to the Bill of Rights itself. Both to emasculate it and then to prohibit court challenges to the emasculation. The rogue state may be even more fastidious in its selection of its own judges.

Hence the road to Maputo. A great triumph for our region’s rogue state. A great setback for the rule of law, and for international human rights. The SADC Treaty, the Protocol on the Tribunal and the SADC Tribunal are all eviscerated. Impunity is entrenched.

The tribunal is overwhelmingly supported by donor aid, particularly from the member states of the EU. I would suggest that this conference express itself on what has happened in Maputo, and call for the suspension of all funding of the tribunal, and other organs of SADC, until once again individuals are able to access it.

Only then might community law promise anything for a region of deep inequality, and uneven and only partial constitutionalism. The tribunal, as a consequence of the summit’s decision at Maputo to reject the council’s recommendation, is a travesty.

— Politicsweb.

Jeremy Gauntlett is a member of the Cape and Johannesburg Bars, and of Brick Court Chambers, London. This is an extract from a speech given by him to the Middle Temple South Africa Conference.

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