Resolution on the SADC Tribunal
The SADC Summit decided at its 30th meeting to review the role, functions and terms of reference of the SADC Tribunal which is the principal judicial body in the SADC sub-region. There is nothing procedurally wrong with the review of the Tribunal as this has happened with other international and regional courts such as the European Court and the International Criminal Court.
Civil society organisations in the SADC region are concerned with the manner in which the decision was taken and the implications of that decision. The decision to review the role of the Tribunal was instigated by the Zimbabwean government’s refusal to comply with the progressive decisions it has handed down and not necessarily by a desire to strengthen its effectiveness. Coupled with the decision to review the Tribunal was the decision not to fill six vacancies on the seat of the court. The Summit’s decisions have serious implications on the independence of the Tribunal, right of access to justice and effective remedies.
In our view the decision of the SADC Summit is ultra vires the SADC Treaty and the SADC Tribunal Protocol. Whenever the terms of office of judges of the SADC Tribunal have expired the Summit shall appoint new judges or reappoint the same judges to ensure that the court has the requisite quorum to continue receiving cases. The SADC Summit’s decision is therefore not in accordance with the constitutive statutes of the Tribunal. The Tribunal is unable to receive new cases and may only deal with partly heard matters as a result of the Summit decision. We are further concerned that this decision is a violation of the independence of the SADC Tribunal as the SADC has arbitrarily and effectively suspended the operation of the SADC Tribunal.
The decision of the SADC Tribunal violates the rights of SADC citizens to access justice at the supra-national level. During the review period citizens will not be able to institute any cases before the SADC Tribunal. Further to that the rights of SADC citizens to an effective remedy is also violated given the unavailability of remedies and lack of independence of the domestic courts in the sub-region.
The NGO Forum urges the African Commission to request the SADC members States To:
Convene an extraordinary summit to reconsider its decision. In particular the SADC Tribunal should be requested to do the following:
Fill the six vacancies at the SADC Tribunal without any further delay in order to allow citizens access to court and seek redress.
Ensure the involvement of civil society and SADC citizens in the review process, the review process should be designed to strengthen the Tribunal and not to weaken its effectiveness.
Done at Banjul, November 9th, 2010
