The ICJ has welcomed last Thursday’s judgment of the Pretoria High Court which declares the South Africa’s involvement in shutting down the South African Development Community Tribunal “unlawful, irrational, arbitrary and therefore unconstitutional”.
ICJ’s Africa Director, Arnold Tsunga described the judgment as a “triumph for the rule of law in Southern Africa and an opportunity for governments in the SADC region to commit to immediate restoration of the Tribunal”.
The SADC Tribunal has been inactive since 2012, when SADC Member States suspended its operations and removed individual access to the Tribunal, including in cases involving human rights violations.
The action was widely seen as a backlash for several judgments against Zimbabwe in relation to land programmes implemented during the administration of former President Robert Mugabe.
In a unanimous judgment delivered by High Court Judge President D Mlambo, the Court held that “any act which detracted from the SADC Tribunal’s exercise of its human rights jurisdiction at the instance of individuals, was inconsistent with the SADC Treaty itself and violated the rule of law”.
Describing former President Zuma’s decision to sign the replacement 2014 Protocol of the SADC Tribunal as one such act, the Court held that the rule of law in South Africa’s constitutional dispensation required prior Parliamentary approval for the Executive to lawfully participate in a decision to curb the powers of the Tribunal or withdraw South Africa from its obligations under the SADC Treaty and the Protocol establishing the Tribunal.
“A restoration of the SADC Tribunal to its original character will facilitate individual access to a much needed accountability mechanism and greatly enhance regional confidence in human rights and the rule of law”, said Arnold Tsunga.
In line with articles 14 and 15 of its 2000 Protocol, the SADC Tribunal had exercised supervisory jurisdiction over the human rights commitments of SADC Member State under the SADC Treaty.
The ICJ called on the governments of Southern Africa’s other 14 SADC Member States to take immediate and concrete steps to restore the SADC Tribunal and recommit to rebuilding, staffing and funding it to ensure its effectiveness.
Arnold Tsunga, ICJ Africa Director; t: +27716405926, or +254 746 608 859 ; e: arnold.tsunga(a)icj.org
Solomon Ebobrah, Senior Legal Adviser, ICJ Africa Regional Programme, t: +234 8034927549; e: solomon.ebobrah(a)icj.org