Human Rights, SADC and the SADC Tribunal1

By Tazorora TG Musarurwa LLB, LLM2

Introduction
Human rights have become an integral part of our daily lives that it is rather impossible to find a single person who cannot tell you something about what they think human rights are. They have also become such a topical subject that it is no longer plausible to simply dismiss them as a Western phenomenon that has no business in Africa. The history of the Southern African region, like most parts of Africa, has been a call for human rights. In pre-colonial times, the majority of people were denied basic political rights such as those pertaining to voting and fair trials. Black people’s movements were restricted by laws. In South Africa, the infamous Group Areas Act of 1950 divided the nation into areas by race and denied people of colour from building homes or establishing businesses in certain areas that were designated as ‘white areas’. The region has also witnessed civil wars where the rules of war have taken a back seat and thousands of innocent civilians have been massacred by either of the sides fighting those wars. Furthermore, women have been subjected to a subservient role in their own lives and continue to be subject to the whims and caprices of their male counterparts. There is without doubt an endless list of human rights abuses that have been inflicted on people within this region historically and that we continue to suffer up to this very day. In spite of these considerations it is important to ponder whether SADC had a human rights agenda when it was established or at any point thereafter. Is SADC not simply a body meant to increase trade within the region and make it easier for its citizens to travel amongst the member states? If this be the case, then the Tribunal should surely be just a dispute resolution body meant to adjudicate upon some technical disputes that may arise within this integration process. With all the above in mind, this short paper looks at what place human rights have within SADC’s agenda and whether the Tribunal has any business involving itself in the human rights terrain.

The SADC Treaty
When the ten founding member states met in Windhoek, Namibia in 1992 to establish SADC by signing the SADC Treaty, they made it clear that human rights were part of the integration agenda.3 This is acknowledged by the preamble which states in part that
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The views expressed in this paper do not necessarily reflect those of the Tribunal. The author writes in his personal capacity. Legal Professional Assistant SADC Tribunal (Registered legal practitioner, Zimbabwe).

“MINDFUL of the need to involve the people of the Region centrally in the process of
development and integration, particularly through the guarantee of democratic rights, observance of human rights and the rule of law (my emphasis)

Article 49(c) further provides that member states shall act in accordance with the principles of ‘human rights, democracy and the rule of law’. The SADC Treaty does not go further to expand on these principles of human rights. However, if one is to consider the SADC protocols individually and in toto, a human rights track can certainly be discerned. For instance, SADC has protocols on Corruption, Combating Illicit Drugs, Education and Training, Fisheries, Forestry, Gender and Development amongst others.4 A close look at most of these SADC protocols shows that they actually reflect commitments that are in UN human rights instruments. For example there is a UN Convention Against Corruption that espouses the same principles as the Protocol Against Corruption. One can also draw parallels between the UN Convention on Economic, Social and Cultural Rights and the Protocol on Education and Training and the Protocol on Culture, Information and Sports. The UN Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) may also be compared with the new Protocol on Gender and Development. From the foregoing it is difficult to shy away from the fact that there is indeed a human rights agenda that is reflected within SADC law. It is, however, unfortunate that most of these protocols have not been ratified by some member states.

The Campbell case

The case of Mike Campbell & Others v Zimbabwe5 has undoubtedly brought the Tribunal more in to the public sphere. In this case the applicants sought an interdict from the Tribunal against Zimbabwe which had marked their farms for compulsory acquisition. In essence they were challenging Zimbabwe’s land reform programme and laws arguing that they violated principles of the SADC Treaty. Agents for Zimbabwe argued that the Tribunal had no jurisdiction to entertain the matter as the SADC Treaty only had human rights as principles but did not have the actual standards upon which Member States’ conduct could be measured by. They further

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SADC was founded by Angola, Botswana, Lesotho, Malawi, Mozambique, Namibia Swaziland, Tanzania, Zambia and Zimbabwe. See Ruppel and Bangmwabo, ‘The SADC Tribunal: A legal analysis of its mandate and role in regional integration’ Monitoring Regional Integration in Southern Africa Yearbook Vol 8 2008 213. SADC (T) Case No. 2/2007.

argued that were the Tribunal to borrow these standards from any other jurisdiction, it would be tantamount to legislating on behalf of member states.6 The Tribunal dismissed these arguments and ruled that it could entertain the matter as Article 21(b) of the Tribunal Protocol allowed it to have regard to “applicable treaties, general principles and rules of public international law” it could look elsewhere where the Treaty was silent. In essence the Tribunal ruled that Zimbabwe’s land reform programme as provided for by S16B(3) of the Constitution of Zimbabwe denied the applicants access to justice, was racially discriminatory and violated international law in its failure to provide for compensation. In so doing it was a violation of the SADC Treaty.

Correctness of the Campbell decision
Whether any decision can be considered to be correct or not will obviously depend on the commentator. Criticisms on the Campbell decision include the argument that the principles which were relied upon by the Tribunal are not legally enforceable obligations. The question therefore is whether the Tribunal should have found the principle of human rights as creating rights and duties between the parties. This argument (propounded by the Government of Zimbabwe) is not without merit as human rights come with much controversy even in situations where they are clearly provided for. As such, in a scenario where the rights are not provided for there is a lack of clarity on what are the obligations of states and what reciprocal rights accrue to citizens in terms of SADC law. It can be argued that this is a classic situation where the law is being made in retrospect. Such a situation is undesirable as law should generally be legislature driven and not judicially driven. However, an equally important consideration is whether the Tribunal should sit back and relax while member states wantonly violate commitments that they made within the SADC Treaty. It can also be argued that the principles of the Treaty are its pillars and destroying such pillars is tantamount to destroying the entire Treaty in itself. It is therefore the duty of the Tribunal to act as a stop-gap measure to ensure that such violations do not occur up until such a time when the member states establish a framework which delineates the parameters of the principles. In the East African Court of Justice, the court was also caught in similar circumstances in the landmark case of James Katabazi and 21 Others v Secretary General of the East African Community and the Attorney General of the Republic of Uganda7. Here the Court conceded that although Article 27 did not give it a specific human rights jurisdiction it would ‘not abdicate from exercising its jurisdiction of interpretation under Article 27(1) merely because the Reference includes allegations of human rights violation.’ As such
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P 23 of the judgment. Unreported suit, Reference No. 1 of 2007, Judgement of the EACJ delivered on 1 November 2007.

the Court found a violation of the principle of rule of law and as such a violation of the EAC Treaty.8 It has been suggested that the East African Court, while waiting for the snail pace expansion of its jurisdiction to include human rights, should subsume those rights that are provided for in the African Charter on Human and Peoples’ Rights. The same argument could be made for the SADC Tribunal as all fifteen members of SADC are also state parties to the African Charter. The Afro-centered nature of the African Charter makes it an ideal basis to create legally enforceable obligations for SADC member states in the absence of a SADC bill of rights.

Conclusion
As human rights are an integral part of national constitutions in all SADC member states, it is difficult to comprehend a scenario where a regional judicial organ would ignore such human rights in its interpretation of the Treaty. In any case, it has been shown that human rights are a core part of SADC business as is reflected by the preamble to the Treaty, the principles of the treaty and the SADC protocols. The Tribunal has done well in following a precedent set by the East African Court of Justice that although not having a specific human rights jurisdiction it could interpret the Treaty in a manner that ensures member states do not violate the principles of the Treaty. SADC member states should now take the lead and develop a human rights protocol. At the end of the day it is citizens that must benefit from regional groupings and leaders should not be seen as fighting against the tide of human rights. Conservative positivists may thus have problems with the approach taken by the Tribunal, but those who believe in a judicially active bench that stands to promote, protect and respect human rights will appreciate the contribution made by the Tribunal to human rights jurisprudence.

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See also Solomon T. Ebobrah ‘Litigating human rights before sub-regional courts in Africa: prospects and challenges’ 17 RADIC (2009) 82. And also Christpher Mbazira ‘The human rights jurisdiction of the East African Court of Justice – The James Katabazi case’ Occasional Paper of the East African Law Society.