Introduction
The Southern African Development Cooperation (SADC) Tribunal is established under Article 9 of the Consolidated Text of the Treaty of the SADC (SADC Treaty). The Tribunal was launched in 2005 with powers and a mandate to interpret the SADC Treaty and Member States’ laws. The Tribunal enjoyed a human rights mandate by handling cases filed before it by individuals and civil society organisations (CSOs), subject to Article 15(2) of the SADC Tribunal Protocol. This blog article focuses on the causes and effects of abolishing the human rights mandate in the SADC Tribunal.
The promotion of human rights, in the SADC Tribunal was in line with the provisions of the SADC Treaty and SADC Charter of Fundamental Social Rights of 2003.[1] The SADC Tribunal also enforced human rights by invoking the provisions of the African Charter on Human and Peoples’ Rights of 1981, and the International Covenant on Civil and Political Rights of 1966. Some of the remarkable decisions of the Tribunal include Barry Gondo and 8 Others v. The Republic of Zimbabwe, (2008) SADC (T) 05/2008, and the Mike Campbell (Pvt) Ltd v. The Republic of Zimbabwe, (2007) SADC (T) 2/2007. In the two cases, the Tribunal held that Articles 4(c) and 6(1) of the SADC Treaty create an obligation on member states to respect, protect, and promote human rights, democracy, and the rule of law.[2]
The Abolishment of the SADC Tribunal’s Human Rights Mandate
In the early 2000s, the Zimbabwean government established land nationalisation programs by confiscating land owned by white settlers. In the case of Mike Campbell (Pvt) Ltd and Others v. The Republic of Zimbabwe, (2007) SADC (T) 2/2007, the SADC Tribunal held that the Zimbabwean Government racially discriminated against the white farmers whose lands had been confiscated under the land reform program. The decision was to the displeasure of Zimbabwe. As such, Zimbabwe influenced SADC to suspend the Tribunal, or else it will withdraw from SADC. Consequently, the Tribunal was suspended in 2010.[3] The Tribunal resumed in 2014 after adopting a SADC Tribunal Protocol, which removed the powers of the Tribunal to adjudicate and the Tribunal’s powers to adjudicate cases filed by individuals against the Member States.[4] Therefore, only member states can currently access the court by Article 15(1) of the SADC Tribunal Protocol of 2000.
Criticisms on the Withdrawal of Human Rights Mandate of the Tribunal
The abolishment of the human rights mandate of the SADC Tribunal faced criticisms from human rights activists. In the case of Tanganyika Law Society v. The Ministry of Foreign Affairs and International Cooperation and the AG of Tanzania (2014) Misc. Civ. Cause No. 23, the Tanganyika Law Society challenged the decision of the Government of Tanzania in banning the SADC Tribunal. Consequently, the Tanzanian High Court condemned Tanzania’s silence regarding the suspension of the SADC Tribunal.[5] Also, in the case of the Law Society of South Africa and Others v. The President of the Republic of South Africa and Others, (2019 (3) SA 30 (CC), the Bar association of South Africa challenged the banning of the SADC Tribunal as well as the President of South Africa’s participation in suspending the SADC Tribunal.
The Effects of the Abolishment of Human Rights Jurisdiction of the Tribunal
Several effects can be observed in the SADC region, especially in the absence of human rights jurisdiction in the SADC Tribunal. Some of the impacts or challenges are discussed hereunder:
- The Departure from the Traditional Role of Regional Economic Community (REC): A REC needs to have a judicial body that can control and balance the sovereignty of member states regarding the protection of human rights.[6] This is because by belonging to a REC, states surrender part of their sovereignty to meet the goals of the community. The absence of a human rights mandate in the SADC Tribunal hinders the promotion of democracy and human rights protection in the SADC region through the framework of the SADC. This is because individuals, CSOs, and non-governmental organisations (NGOs) cannot approach the tribunal and seek redress for human rights violations. Therefore, the SADC region lacks a platform that oversees how the member states protect and promote human rights.
- The Minimisation of the Scope of Human Rights Protection in the SADC Region: The co-existence of regional courts and tribunals is important since it offers individuals multiple avenues to seek the protection of their basic rights and fundamental freedoms.[7] With the absence of a regional human rights protective body in the SADC region, the citizens of the member states have been granted a minimal scope for human rights protection.[8] Consequently, aside from national courts and courts under the framework of the African Union, individuals cannot seek and receive the protection of their rights through the SADC framework. This situation is contrary to the situations of human rights protection in other regional blocs. For example, in the East African Community, the citizens can enforce their rights before the East African Court of Justice. Also, in the Economic Community of the West African States (ECOWAS), individuals can enforce their rights before the ECOWAS Court of Justice.
- Willful Disregard of Human Rights Protection in the SADC Integration Agenda: The majority of RECs tend to formulate laws and institutions that govern human rights. The protection of human rights is one of the purposes behind the formation of the SADC, and this is reflected in the SADC Treaty. The SADC Treaty provides the fundamental principles behind the formation of the SADC. Article 4(4) of the SADC Treaty provides that the respect and protection of human rights is one of the fundamental principles of SADC.[9] That is why the SADC Charter of Fundamental Social Rights was adopted.[10] The removal of human rights jurisdiction in the SADC Tribunal led to an indirect isolation of human rights protection from the SADC integration agenda.[11] This is due to the absence of regional mechanisms that monitor and oversee the protection of human rights in respect of the acts and omissions of the member States.[12]
Concluding Thoughts
The SADC region must revamp the SADC Tribunal and restore the human rights mandate of the Tribunal. Because doing so will grant the nationals of the member states extra avenues to enforce their rights. There is a need for SADC to draw some reasons from the Economic Community for West African States (ECOWAS) on how the ECOWAS Court of Justice and from the East African Community (EAC) on how the East African Court of Justice (EACJ) have been important tools in the protection of human rights agendas of the two communities.
[1] Solomon Eborah, ‘Tackling Threats to the Existence of the SADC Tribunal: A Critique of Perilously Ambiguous Provisions in the SADC Treaty and the Protocol on the SADC Tribunal’ (2010) 4 Malawi Law Journal 199.
[2] Phiwokuhle N. Ndlovu, ‘Campbell v Republic of Zimbabwe: A Moment of Truth for the SADC Tribunal’ (2011) 1 SADC Law Journal 63.
[3] Oliver C. Ruppel, ‘The case of Mike Campbell and the Paralysation of the SADC Tribunal’ in Emmanuel T. Laryea and others (eds) International economic law voices of Africa, Siber Ink (2012).
[4] Frederick Cowell, ‘The Death of the Southern African Development Community Tribunal’s Human Rights Jurisdiction’ (2013) 13 HRLRev 153.
[5] International Commission of Jurists, ‘Tanzanian High Court Condemns Unlawful Stripping of SADC Tribunal’s Powers Rendering the Rule of Law a “Pipe Dream”’ (International Commission of Jurists, 5 June 2019) https://www.icj.org/country/tanzania/#:~:text=The%20ICJ%20welcomes%20the%20recent,in%20the%20Southern%20African%20region, accessed 1 February 2025.
[6] Dinah Shelton, ‘Performance of Regional Human Rights Courts’ in Theresa Squatrito and others (eds), The Performance of International Courts and Tribunals: Studies on International Courts and Tribunals, Cambridge University Press (2018).
[7] Tapiwa Shumba, ‘Rising from Its Ruins? The Southern African Development Community (SADC) Tribunal’ (2022) 26 Law, Democracy, and Development 287.
[8] Jonas Obonye, ‘Neutering the SADC Tribunal by Blocking Individual Access to the Tribunal’ (2013) 2 International Human Rights Law Review 294.
[9] Erika de Wet, ‘The Rise and Fall of the Tribunal of the Southern African Development Community: Implications for Dispute Settlement in Southern Africa’ (2013) 28 ICSID Rev 45.
[10] Zolomphi Nkowani “When Elephants Dance, The SADC Charter of Fundamental Social Rights, A Beacon of Hope or Confusion Compounded?’ (2007) 33(1) Commonwealth Law Bulletin 41.
[11] Oliver C. Ruppel and Francois Xavier Bangamwabo, ‘The Mandate of the SADC Tribunal and Its Role for Regional Integration’ in Adrian Bösl and others (eds) Yearbook for Regional Integration, TRALAC (2008).
[12] Mark Chingono and Steve Nakana, ‘The challenges of regional integration in Southern Africa’ (2009) 3(10) African Journal of Political Science and International Relations 396.
