Commonwealth bars slam SADC on Tribunal decision


ZIMBABWE – COMMONWEALTH bar associations have slammed the decision of leaders of the 14-nation Southern African Development Community (Sadc) to extend the suspension of the Sadc tribunal after pressure from Zimbabwe.

The regional court of appeal, suspended in 2010 after ruling against President Robert Mugabe’s land reform programme, was expected to be revived at the Sadc summit in Mozambique last month. But Sadc leaders maintained the suspension of the Namibia-based court amid reports Zimbabwe insisted that the court’s powers be further whittled down.

Sadc heads of State recommended that the court’s human rights jurisdiction be removed – meaning the court when it will be finally revived will only be seized with inter-state disputes not human rights matters.

The Commonwealth Lawyers Association (CLA), the Commonwealth Legal Education Association (CLEA) and the Commonwealth Magistrates’ and Judges’ Association (CMJA) said they were concerned about the recent decision to negotiate a new Protocol on the Sadc Tribunal and limit the mandate of the Tribunal to interpretation of the Sadc Treaty and Protocols relating to disputes between member states.

“The CLA, CLEA and CMJA recall that individuals had a clear right of access to the Tribunal as set out in the original Protocol and notes that all previous cases heard by the Tribunal have been brought by individuals,” they said in a joint statement.

“The CLA, CLEA and CMJA further note that this decision appears counter to the outcome of the independent review initiated by Sadc and submitted in March 2011 which affirmed the jurisdiction of the Tribunal and its legal authority. In May 2011, the Sadc Committee of Ministers of Justice/Attorneys General was further mandated to review the operation of the Tribunal and submit a final report in August 2012.”

Zimbabwe was suspended from the Commonwealth in 2002 after election observers found that the presidential elections which returned Mugabe to power were seriously flawed.The troika decided to suspended Zimbabwe from the councils of the Commonwealth, which effectively barred the country from any of its meetings and later suspended its membership completely.

The CLA, CLEA and CMJA said the failure of the Sadc summit to reinstate the Tribunal in its original form, together with the decision to renegotiate the mandate, raises difficult questions as to the institutional balance and separation of powers within the various structures of Sadc itself as well as wider questions of commitment to the principles of democracy, human rights and the rule of law, including the independence of the judiciary, as set out in the Sadc Treaty itself.

“The CLA, CLEA and CMJA call upon the Sadc to reinstate the Tribunal in its original form noting that it is an important mechanism for the promotion, protection and full realisation of human rights within
Southern Africa and also provides the citizens of the Sadc region with access to justice and effective legal remedies independent of national judicial systems.”

The tribunal in 2008 ruled in favour of 78 white farmers fighting against the seizure of their land by Mugabe’s government, and ordered Zimbabwe to uphold the tribunal’s order to return confiscated land and
compensate farmers for lost property.

Zimbabwe’s government refused to comply with the Sadc tribunal’s rulings, while local courts declined to register the tribunal’s decision, saying it violated the country’s constitution.

This is the second year the Sadc leaders has failed to revive the tribunal after Harare raised objections.
Rights activists said the regional leaders’ decision to countenance Zimbabwe’s proposal to curtail the powers of the court further showed that the southern African leaders were taking a soft stance on the
88-year-old leader.

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