Southern African Development Community Tribunal Research Articles

THE SUSPENSION OF THE SADC TRIBUNAL

1. Introduction In August 2012 the Summit of the Heads of State and Government of the Southern African Development Community (SADC) held in Maputo, Mozambique, decided to suspend from operation one of key institutions the SADC Tribunal. As the resolution stated: 24. Summit considered the Report of the Committee of Ministers of Justice/Attorneys General and the observations by the Council of Ministers and resolved that a new Protocol on the Tribunal should be negotiated and that mandate should be confined to interpretation of the SADC Treaty and Protocols relating to disputes between Member This unprecedented action followed several months of tit for tat particularly between the Tribunal and Zimbabwe mostly over white commercial farms' invasions by so-called war veterans. The essence of this decision simply is to oust the jurisdiction of the Tribunal from entertaining alleged human rights violations at the instance of individual victims such as the white commercial farmers from Zimbabwe who besieged the Tribunal complaining about the Zimbabwe government's land grab policy. It made this quite clear with the injunction that its mandate should be confined to interpretation of the SADC Treaty and protocols relating disputes between Member States. This is a cowardly response to the victory by Zimbabwe white farmers at the Tribunal based on a law the SADC Member States' themselves adopted apparently for the good of the region. Civil society tried to fight this draconian decision with all means at their disposal but the Summit would hear none of it. Combining their efforts, the Southern African Litigation Centre, the SADC Lawyers Association as well as the International Commission of Jurists (ICJ) Africa Office, among others, held a series of meetings and workshops to express their displeasure and rejection of the Summit decision. When they were not heard, civil society decided to take the matter to the African Court on Human and Peoples' Rights for Advisory Opinion on the decision of the SADC Summit. The Opinion is still being awaited. However, following this instruction, the SADC Secretariat convened a meeting of SADC Ministers of Justice Troika in late February 2013. A meeting of the Council of Ministers took place the following week. Surprisingly, the Ministers' meetings were very contentious. Debate was polarised. Their views on the Tribunal were divided. It was not easy for the ministers to reach consensus. Consequently, the Council of Ministers requested that a full meeting of Ministers of Justice meet to prepare the draft Terms of Reference (TORs) for their extended mandate on the review of the Protocol on the Tribunal. The Ministers of Justice are expected to meet some time in June 2013, prior to the next Summit. For now, as far as the Tribunal staff matters are concerned, it appears that the status quo will remain. 2. History The SADC Tribunal is one of the youngest regional courts. But it was an innovation for SADC leaders to agree not only to commit themselves to regional integration but towards respect for the human rights of their citizens. The SADC Treaty explicitly commits SADC Member States to respect human rights, rule of law and good governance which is a first natural priority in most countries. Consequently, the Treaty establishes the SADC Tribunal among organs with the objective to enforce the treaty obligations among member Article 9 (g) of the SADC Treaty as read with Article 16 of the Treaty establishes the SADC Tribunal. Pursuant to Article 16 of the Treaty, the mandate of the Tribunal is to ensure adherence to the proper interpretation of the provisions of the Treaty and subsidiary instruments, and to adjudicate upon such disputes as may be referred to the Tribunal. The Tribunal may also tender advisory opinions upon request by Summit or Council of Ministers. Its decisions are final and binding. …

The evolution of regional wildlife conservation, environmental protection and anti-poaching law in the Southern African development community

Environmental laws in Africa have their roots in the political economy of colonialism. This article examines the evolution of wildlife crime and conservation institutional framework in the Southern African Development Community (SADC) region. SADC countries have ratified multilateral environmental agreements and embraced Transboundary Conservation Areas. However, SADC states are hesitant to ratify treaties that make inroads into their sovereignty. Classification of poaching as a transnational organised crime is essential in effectively combating this crime. Policy recommendation on the effective use of wildlife instruments is made. It is recommended that the SADC Tribunal be resuscitated with jurisdiction over transnational environmental issues.

A Call for Public Participation in the Treaty-making Process in South Africa: What can South Africa Learn from the Kingdom of Thailand?

On 2 August 2002 South Africa signed the Southern African Development Community (SADC) Protocol on Tribunal and the Rules of Procedure Thereof, thus effectively recognising and accepting the jurisdiction of the SADC Tribunal. Among the cases received by the SADC Tribunal was a complaint involving allegations of human rights violations by the government of Zimbabwe. It ruled that the government of Zimbabwe had violated human rights. Consequently, Zimbabwe mounted a politico-legal challenge against the existence of the Tribunal. This resulted in the review of the role and functions of the Tribunal in 2011 which resulted in the Tribunal being barred from receiving new cases or proceeding with the cases that were already before it. Furthermore, on 18 August 2014, the SADC Summit adopted and signed the 2014 Protocol on the Tribunal in the SADC which disturbingly limits personal jurisdiction by denying individual access to the envisaged Tribunal, thus reducing it to an inter-state judicial forum. This article critically looks at the decision of 18 August 2014, specifically the legal implications of the Republic of South Africa’s signing of the 2014 Protocol outside the permissible procedure contained in article 37 of the SADC Protocol on the Tribunal. It proposes that South Africa should correct this democratic deficit by introducing public participation in treaty-making processes in order to prevent a future situation where the executive unilaterally withdraws from an international treaty that is meant to protect human rights at a regional level. To achieve this, this article makes a comparative study between South Africa and the Kingdom of Thailand to learn of any best practices from the latter.

The Legacy of the SADC Tribunal in International Investment Law

The now defunct Tribunal of the Southern African Development Community (SADC) was called upon a few times to decide cases related to the protection of (foreign) property rights during its short lifespan of less than five years. The most controversial of these cases was Mike Campbell (Pvt) Limited and others versus the Republic of Zimbabwe (the Campbell case), which led to the eventual suspension of the Tribunal. At the heart of the case was the legality of a postcolonial land reform program and the classic tension in international investment law between the promotion of public interest and the protection of individual property rights. The Tribunal stirred controversy by condemning the land reform program without due regard to its underlying public policy rationale. Much of the scholarly writing on the Campbell saga has focused on Zimbabwe’s hostile reaction and the impact of the Tribunal’s demise on the protection of human rights in the region. Relatively little attention has been given to its implications for the SADC investment protection regime. This chapter sets out to examine the investment jurisprudence and legacy of the Tribunal focusing on the Campbell decision. This landmark decision is largely similar to the decisions of the two arbitral tribunals established under the auspices of the International Centre for Settlement of Investment Disputes (ICSID) to try essentially the same subject matter. All three tribunals ruled against Zimbabwe’s expropriation of white-owned commercial farms using different legal bases. While the SADC Tribunal drew upon international human rights treaties and instruments, the ICSID tribunals relied on Bilateral Investment Treaties (BITs). The divergent legal bases provide an interesting context for reflection on the convergence of international human rights and investment law on the protection of property rights. The interplay between these two international law regimes has received increasing attention in academic literature over the last few years. This chapter contributes to this emerging literature by analysing the investment case law of a de facto human rights court.

Braamfontein encroaching? An internationalist reading of the South African Constitutional Court judgment on the SADC Tribunal

On 11 December 2018, the Constitutional Court of South Africa ruled that the President’s signature to the 2014 Protocol concerning the Southern African Development Community (SADC) Tribunal, which limits the authority of the SADC Tribunal, must be withdrawn. As the Court ventured outside the bounds of domestic law in the case, this paper reads those arguments of the Court grounded in international law from an international law perspective. In doing so, we explore the implications, contributions, and dangers that such jurisprudence might entail for general international law, and the SADC legal regime. We ask a number of questions. Is this a domestic court encroaching on international law? What are the consequences of such a move from an international law perspective? And, what does this imply for the future of the SADC Tribunal, and the functioning of this international organisation in general? Through this internationalist reading of the case, we demonstrate how the Constitutional Court’s use of international law has endangered its own decision, as its positions are not defendable within the discipline of public international law. Therefore, while we agree with the overall outcome of the case, we argue that the Constitutional Court has strewn its own path with unnecessary obstacles and traps.

Who are judicial decisions meant for? The ‘global community of law’ in Southern Africa

Rationalist models of judicial decision-making expect courts to defend their institutional integrity in politically sensitive cases. This article presents two African case studies of courts not doing so. They have elicited predictable backlash from executives and placed their institutions in avoidable danger. I argue that judges’ desire for esteem from emerging global judicial networks can explain this otherwise puzzling behaviour. These new networks become particularly salient in human rights cases. This conclusion partially supports Anne-Marie Slaughter’s controversial claims about the significance of ‘the global community of law’ but also identifies risks this poses for courts’ domestic authority. The argument is made with reference to two recent and well-known decisions by the High Court of Botswana and the Southern African Development Community Tribunal. The first case, Sesana (2006), dealt with the vexed question of indigenous rights in Africa. The second case, Campbell (2008), concerned the compensation of expropriated commercial farmers from Zimbabwe.

The Short Happy Life of the SADC Tribunal: the Perils of Regional Integration in Southern Africa

AbstractUnder the Treaty Establishing the Southern African Development Community (the Treaty) one of the institutions of the Southern African Development Community (SADC) was the Southern African Development Community Tribunal (the Tribunal). The Tribunal was established as the sole judicial organ of SADC. The Tribunal was established as part of the reorganisation of regional integration efforts within Southern Africa. The global atmosphere prevailing at the time the Tribunal was established, together with the lofty statements in the SADC’s founding instruments, suggest that there was a regional commitment to the ideals of human rights, rule of law and democracy among SADC member States. The Tribunal’s life, however, was short-lived. This paper analyses the prospects and lessons for regional integration within the SADC region from the perspective of the disbanding of the Tribunal and attempts to decipher the implications of the disbanding for regional integration in Southern Africa.

The Direct Applicability of SADC Community Law in South Africa and Zimbabwe: A Call for Supranationality and the Uniform Application of SADC Community Law

The Southern African Development Community Tribunal (SADC Tribunal) became operational in 1992 and delivered several judgments against Zimbabwe. Some of those decisions are yet to be enforced. The attempt to enforce them contributed to the demise of the SADC Tribunal. The tension between community law and domestic law, international law and national law, and community law and international law is as old as the hills. The monist and dualist theories of international law assist in attempting to clarify the nature of the relationship between international law and municipal law. However, there is no guidance when it comes to community law and national law. This paper will explore on how SADC Community law can be applied uniformly by South Africa and Zimbabwe including all other SADC member states. This will be done through decided cases with specific reference to South Africa and Zimbabwe. In order to learn best practices from other jurisdictions, the paper will to the extent relevant, make reference to the East African Court of Justice, the European Union (EU) and the European Court of Justice (ECJ). The discourse will conclude by making a proposal for the adoption of a revised Protocol on the SADC Tribunal that will assist in clarifying the nature of the relationship between SADC Community law and national laws of SADC member states.

The Case of Government of the Republic of Zimbabwe v Louis Karel Fick: A First Step towards developing a Doctrine on the Status of International Judgments within the Domestic Legal Order

The Fick case which was decided by the Constitutional Court on 27 June 2013 was the first time since its inception that the Constitutional Court was confronted with the status of a binding international decision within the domestic legal order. It concerned a binding decision by the (now suspended) Southern African Development Community (SADC) Tribunal against Zimbabwe, which was also enforceable in South Africa. A key issue before the Court was whether or not the South African statutory rules of civil procedure for the enforcement of foreign judgments also covered judgments of international courts and tribunals (as anticipated by Article 32(1) of the Protocol on the SADC Tribunal). As none of the relevant statutory legislation was applicable in this instance, the common law remained the only possible avenue through which the SADC Tribunal’s decision could be enforced in South Africa.
 
 At the time of the decision, the common law on the enforcement of civil judgments had developed only to a point where it provided for the execution of judgments made by domestic courts of a foreign state (ie decisions of other national courts). The Court was therefore confronted with whether or not an international decision in the form of a cost order of the SADC Tribunal amounted to a “foreign judgment” as recognized by the South African common law. The Court answered this question in the affirmative by relying on those clauses in the Constitution that committed South Africa to the rule of law, as well as its obligations under international law, and to an international-law friendly interpretation of domestic law.
 
 Although the decision is to be welcomed and applied the law correctly to the facts of the case, it does raise the issue of the wisdom of equating international judgments with foreign judgments on a more general scale. This relates to the fact that it is generally accepted in most jurisdictions that the recognition and enforcement of a “foreign judgment” can be denied where it would result in a violation of domestic public policy. The public policy exception does not, however, fit well in a regime based on public international law, which does not permit States to use their domestic law as an excuse for not implementing their international obligations.

Of State Immunity, Phantom Waivers and Dark Continents: The Curious Case of Zimbabwe v Mr. Fick

Following the Constitutional Court of South Africa’s (CCSA) ruling in the case of Zimbabwe v Fick and Others (the Fick case), it is now in doubt whether South Africa adheres to the restrictive State immunity doctrine. In the Fick case, the CCSA dismissed Zimbabwe’s plea of State immunity on the erroneous basis that Southern African Development Community (SADC) States had expressly waived their immunity over the registration and enforcement of judgments issued by the SADC Tribunal. The CCSA also created a new law enabling South Africa to register and enforce judgments issued by international courts against foreign States, irrespective of whether the disputes concerned acta jure imperii or acta jure gestionis. This article argues that the CCSA’s ruling and its consideration of the issue of foreign State immunity are flawed and constitute a threat to (i) the security of foreign States’ property, interests and investments in South Africa; (ii) intra-SADC trade relations; (iii) the effective resolution of disputes arising under SADC’s investment law and the SADC Protocol on Finance and Investment; and (iv) the development of coherent principles on SADC law on State immunity.

Sub-Regional Courts in Africa: Litigating the Hybrid Right to Freedom of Movement

Human rights attorneys and civil society groups in Africa have recently focused their advocacy efforts on sub-regional courts associated with economic integration communities in East, West and Southern Africa. The East African Court of Justice (EACJ), the Court of Justice of the Economic Community of West African States (ECOWAS), and the Tribunal of the Southern African Development Community (SADC) have received few suits challenging trade restrictions and other barriers to sub-regional integration. Instead, and surprisingly, the courts’ dockets are dominated by complaints alleging violations of international human rights law.This article offers the first analysis of EACJ, ECOWAS Court and SADC Tribunal decisions concerning the free movement of persons. Freedom of movement is a hybrid legal right. It is protected in the African Charter on Human and Peoples’ Rights and in other human rights instruments, but it is also a central pillar of all regional integration systems. Free movement case law thus offers a revealing lens through which to examine how African sub-regional courts decide which litigants have access to justice, interpret international legal norms, and fashion the remedies awarded to successful complainants.

No longer in suspense: Clarifying the Human Rights Jurisdiction of the SADC Tribunal

The Southern African Development Community Tribunal's (SADC Tribunal) decision in the matter of Mike Campbell (Pvt) Ltd v Republic of Zimbabwe 2008 SADCT 2 (28 November 2008) demonstrated its ability to utilise the principles contained in the Treaty of the Southern African Development Community when it ruled that it had the power and competency to adjudicate over a human rights case. The aforesaid decision was hailed by many scholars as a progressive judgment in the SADC region that would promote the rule of law and ensure that member states respected their treaty obligations in their own territories. Unfortunately, the same judgment resulted in the suspension of the SADC Tribunal in 2010 because it had purportedly acted beyond its mandate when it adjudicated over a case concerning a human rights dispute. This article investigates whether the SADC Tribunal had jurisdiction to deal with cases involving allegations of human rights violations. In addressing this question, this article will discuss the powers (implied and tacit) of international organisations as understood within international law. In addition, the study will ascertain how the International Court of Justice and the International Criminal Tribunal for the former Yugoslavia have dealt with cases that involved disputes concerning a tribunal or an international organisation that was said to have acted beyond its mandate. The study will also make reference to the East African Court of Justice and the Economic Community of West African States Court of Justice as they have also dealt with implied powers when they were confronted with cases concerning human rights abuses. Certain decisions of the SADC Summit of Heads of States or Government (Summit) and the Council of Ministers whose roles include the control of functions and/or overseeing the functioning of the SADC will also be referred to in this study.

The case of government <i>of the republic of Zimbabwe v Louis Karel Fick</i>: A first step towards developing a doctrine on the status of international judgments within the domestic legal order

The Fick case which was decided by the Constitutional Court on 27 June 2013 was the first time since its inception that the Constitutional Court was confronted with the status of a binding international decision within the domestic legal order. It concerned a binding decision by the (now suspended) Southern African Development Community (SADC) Tribunal against Zimbabwe, which was also enforceable in South Africa. A key issue before the Court was whether or not the South African statutory rules of civil procedure for the enforcement of foreign judgments also covered judgments of international courts and tribunals (as anticipated by Article 32(1) of the Protocol on the SADC Tribunal). As none of the relevant statutory legislation was applicable in this instance, the common law remained the only possible avenue through which the SADC Tribunal’s decision could be enforced in South Africa. At the time of the decision, the common law on the enforcement of civil judgments had developed only to a point where it provided for the execution of judgments made by domestic courts of a foreign state (ie decisions of other national courts). The Court was therefore confronted with whether or not an international decision in the form of a cost order of the SADC Tribunal amounted to a “foreign judgment” as recognized by the South African common law. The Court answered this question in the affirmative by relying on those clauses in the Constitution that committed South Africa to the rule of law, as well as its obligations under international law, and to an international-law friendly interpretation of domestic law. Although the decision is to be welcomed and applied the law correctly to the facts of the case, it does raise the issue of the wisdom of equating international judgments with foreign judgments on a more general scale. This relates to the fact that it is generally accepted in most jurisdictions that the recognition and enforcement of a “foreign judgment” can be denied where it would result in a violation of domestic public policy. The public policy exception does not, however, fit well in a regime based on public international law, which does not permit States to use their domestic law as an excuse for not implementing their international obligations.

The Contribution of Campbell v. Zimbabwe to the Foreign Investment Law on Expropriations

Since 2000, the Zimbabwean government has expropriated a string of white-owned commercial lands. In March 2008, in a consolidated case (Mike Campbell (Pvt) Ltd and Others v. Zimbabwe), 79 applicants filed an application with the Southern African Development Community Tribunal (SADC Tribunal) to challenge the legality of the acquisition of certain agricultural lands by the Zimbabwean government. On 28 November 2008, the Tribunal ruled that the expropriations of agricultural lands by the Zimbabwean government were illegal because they were based on racial discrimination and did not compensate the applicants. This paper seeks to understand the contribution that the Campbell case brings to the law on foreign direct investment, especially the principle that expropriations must not be discriminatory. Investment law generally prohibits discriminatory expropriations or nationalizations on the basis of race, with the notable exception of post-colonial expropriations carried out to end the economic domination of the nationals of the former colonial power. By declaring that the expropriations of white-owned agricultural lands in Zimbabwe were illegal because they amounted to racial discrimination, the SADC Tribunal in Campbell appears to develop the investment law jurisprudence on expropriations by creating an exception to the exception. Accordingly, the question that this paper addresses centers on the extent to which a country can expropriate property as part of a general government program to correct present economic inequalities brought about by a colonial past. After an exposition of the applicable laws and an explanation of the contribution of Campbell, the paper discusses whether the SADC Tribunal rightly decided the Campbell case and, if not, how the case could and should have been decided.

The Disbanding of the SADC Tribunal: A Cautionary Tale

In 2011 the heads of state of the Southern African Development Community (SADC) disbanded the SADC Tribunal after the regional court held that the Zimbabwean government's land seizures violated the rule of law. The disbandment reflects SADC's hierarchy of values, in terms of which the organization's formal commitment to human rights and a regional legal order is subordinate to the political imperatives of regime solidarity and respect for sovereignty. The Tribunal saga demonstrates that the jurisdiction of regional courts derives not simply from their official mandates but from an interplay between domestic and regional law and politics.

The Rise and Fall of the Tribunal of the Southern African Development Community: Implications for Dispute Settlement in Southern Africa

The article explores the impact of Zimbabwe’s land reform policies since the turn of the century on the Southern African Development Community (SADC), notably its central issue instrument for dispute settlement, namely the SADC Tribunal. In the landmark ruling of Campbell and Others v Zimbabwe the SADC Tribunal found the expropriation of agricultural land without compensation to be discriminatory and in violation of the SADC Treaty. While the Decision was rejected by Zimbabwe it was successfully implemented in South Africa, resulting inter alia in the attachment of Zimbabwean property situated in Cape Town. However, the Campbell Decision met with extensive political resistance throughout the SADC region which ultimately lead to the SADC Tribunal’s suspension in 2012. The article analyses in particular the jurisdiction of the SADC Tribunal to entertain human rights disputes; whether the Tribunal was legally constituted; as well as the manner of enforcement of the Tribunal’s decisions in the domestic legal orders of member States. In addition the article reflects on the consequences of the suspension of the SADC Tribunal for dispute settlement in Southern Africa.

The Admissibility of Subregional Courts’ Decisions before the African Commission or African Court

Some courts of Regional Economic Communities deal with human rights and they base their decisions on the African Charter on Human and Peoples’ Rights. Other subregional courts have directly or indirectly considered human rights matters. However, it is not clear whether the cases decided by subregional courts are admissible before the African Commission on Human and Peoples’ Rights or the African Court on Human and Peoples’ Rights. Focusing on the Economic Community of West African States Court of Justice, the East African Court of Justice, and the Southern African Development Community Tribunal, I argue that the African Commission or the African Court should not admit cases decided by subregional courts. First, accepting such cases would overburden the African Commission and the African Court. Second, the decisions of subregional courts are final according to the treaties establishing them. Third, states should not be tried twice by international institutions for the same violation. Fourth, decisions of subregional courts have res judicata effect. Fifth, subregional courts are envisaged under Article 56(7) of the African Charter. Finally, the African Court or the African Commission can interpret the text of the African Charter to preclude the admissibility ofcases decided by subregional courts.Key words: Admissibility, African Commission, African Court, subregional courts, res judicata

The Death of the Southern African Development Community Tribunal's Human Rights Jurisdiction

The Southern African Development Community (SADC) is a regional economic community in southern Africa consisting of fifteen Member States1 with a stated aim of creating a ‘Free Trade Area’ among its Members. SADC’s Tribunal (‘the Tribunal') in Windhoek had the capacity, until the summer of 2010, to hear individual applications from the SADC Member States on human rights matters. The Tribunal was meant to act in cases where an individual’s human rights were not being protected by the legal system in their home state and they had exhausted all available legal remedies. In the most high profile case to come before the Tribunal, Zimbabwean farmers were able to apply for an order preventing state forces proceeding with the removal of farm land under a government land redistribution programme that was being executed against mainly white landowners, depriving them of their property without compensation.

What Should a Re-constituted Southern African Development Community (SADC) Tribunal Be Mindful of to Succeed?

The Southern African Development Community (SADC) is a sub-regional international organisation comprised of 15 transitional States that have embraced the principle of the rule of law as a basic norm of their constitutional arrangements. Their biggest challenge presently is to undo the provocative and salient legacy of social, economic and psychological apartheid on their territories for almost a century, without disrupting their developmental endeavours. This article examines the question of what role if any the SADC Tribunal envisaged under Article 9 of the constitutive SADC Treaty might play to facilitate successful transitions from apartheid to egalitarian rule. It shows that a multiplicity of dialectics abound that do not allow for easy answers, much to the frustration of both the cultural relativists and their rivals, the universalists, regarding human rights protection. The article recommends meaningful pedagogical engagement of the challenges confronting the SADC sub-region as a direct consequence of almost a century of apartheid – the worst form of governance known to man in recent times. This should inform national, sub-regional and regional dynamics in the pursuit of SADC goals and aspirations. SADC Human Rights Courts and Tribunals are encouraged to develop a “due-account jurisprudence” that is congruous with the transitional requirements of their societies just as the German Federal Constitutional Court had done in the aftermath of the fall of the Reich, and also after the re-unification of Germany.

Following the NAFTA Star: SADC land reform and investment protection after the Campbell litigation

This paper analyses the recent Southern African Development Community (SADC) Tribunal Campbell case from a trade and investment protection perspective. In the Campbell case the issue of the forcible expropriation of farm land without compensation by the Zimbabwean government was raised before the Tribunal in a human rights context. By revisiting the dispute and analysing it from an investment protection perspective, the author controversially seeks to advance the thesis that the dispute had more to do with investment protection than the protection of human rights. This is done by isolating the specific issues the SADC Tribunal adjudicated upon and contextualising them in relation to investment protection rather than land and agrarian reform. To drive the point further home, a brief comparative analysis of the pertinent investment provisions of the North American Free Trade Agreement (NAFTA) and SADC is made. From the analysis, important lessons for SADC investment protection are extracted and highlighted. Despite the fact that the NAFTA provisions do not directly apply to SADC disputes, this paper concludes that NAFTA jurisprudence offers useful insights which the SADC can tap into, to the advantage of its nascent jurisprudence on investment protection.