SADC leaders unlawfully undermine regional tribunal, say legal groups

| Friday November 12, 2010 00:00

The opinion contends that SADC leaders - particularly at the last Heads of State Summit in Windhoek - have deliberately undermined the Tribunal by violating regional laws and acting unconstitutionally.

'SADC leaders have unlawfully ensured that the Tribunal - a critical legal institution - can no longer function, leaving citizens without legal remedy at the regional level,' said Nicole Fritz, Director of the Southern Africa Litigation Centre. 'Instead of abiding by SADC laws, our leaders have willingly and unanimously violated them - and violated our right to access justice as well.'

According to the legal opinion, SADC leaders have acted unlawfully by effectively suspending the Tribunal - by making sure that it is not properly constituted and so cannot operate. SADC laws require that the Tribunal be comprised of no fewer than10 judges but the leaders have violated these laws - by failing to renew the terms of those judges eligible for reappointment or to appoint new judges to fill any vacancies so that the Tribunal no longer has enough judges to hear new cases.

The seven national, regional and international legal organisations that endorsed the opinion also believe that SADC leaders have acted beyond their constitutionally given powers and violated judicial independence and the right to effective legal remedy.

'We are also very concerned that the decision to sabotage the Tribunal was taken in bad faith - to appease Zimbabwe and to ensure that it did not have to comply with a series of rulings related to land seizures,' said Fritz. 'Once again, our leaders have shown that they do not take decisions based on what's good for their people - but what's best for them and the elite in power across the region.'

However, the legal NGOs argue that SADC's leaders can remedy the illegality of their recent decisions and resucitate the Tribunal by:

lCalling for an immediate extraordinary Summit to review and remedy the decisions taken in Windhoek;lRenewing the terms of those Tribunal judges eligible for reappointment or appointing sufficient new judges to ensure the proper functioning of the Tribunal;

lRespecting - in accordance with international law - the independence of the judiciary by upholding the right of Tribunal members to security of tenure and independence; and,

lEnsuring SADC citizens have access to justice and an effective remedy at regional level.

'Even outside the legal context, the repercussions of this decision are grave', said Fritz. 'SADC asks that its regional integration project be taken seriously and yet at so critical a point in time effectively disbands an institution which is vital to this project.'