BEFORE THE AFRICAN COMMISSION
(HELD AT BANJUL, THE GAMBIA)
Communication 409/12
In the matter between:
LUKE MUNYANDU TEMBANI - First applicant
BENJAMIN JOHN FREETH - Second applicant
and
ANGOLA - First respondent
BOTSWANA - Second respondent
CONGO - Third respondent
LESOTHO - Fourth respondent
MALAWI - Fifth respondent
MAURITIUS - Sixth respondent
MOZAMBIQUE - Seventh respondent
NAMIBIA - Eighth respondent
SEYCHELLES - Ninth respondent
SOUTH AFRICA - Tenth respondent
SWAZILAND - Eleventh respondent
TANZANIA - Twelfth respondent
ZAMBIA - Thirteenth respondent
ZIMBABWE - Fourteenth respondent
APPLICANTS' SUBMISSIONS ON THE MERITS
A. Introduction
1. These submissions are presented on behalf of the applicants. In them we deal with the merits of the communication, in compliance with the Secretary of this Commission's directive of 16 November 2012.
2. In summary, this communication requires the Commission to consider the legality of the initially temporary suspension, and now permanent ouster, of the SADC Tribunal's jurisdiction. For reasons more fully set out below, we submit that the suspension and permanent ouster is unlawful, because[1]
(1) it violates binding provisions of inter alia the African Charter, the SADC Treaty and the International Covenant on Civil and Political Rights by
(a) infringing the right of access to court;
(b) interfering with the independence, competence and institutional integrity of the SADC Tribunal;
(c) terminating existing proceedings and vested remedies;
(d) violating the rule of law; and
(e) trespassing on the doctrine of separation of powers;
(2) it is procedurally irregular, because it constitutes an interference with the existence and function of an essential Treaty organ (established by the SADC Treaty) by mere executive decree, not by any amendment of the Treaty;
(3) it constitutes an irrational and arbitrary exercise of executive power for which no valid rationale exists; and
(4) it is in bad faith and motivated by extraneous considerations: instead of acting on the SADC Tribunal's referral of the recalcitrant State member in order to support the SADC Tribunal and enforce its rulings, the Summit in the result has defied the Tribunal and effectively created impugnity for the defaulting State as regards the rulings of SADC's highest adjudicative institution.
3. In what follows, we deal with each of these grounds separately, after first setting out the procedural and factual background. As will be seen, the material facts giving rise to this communication are not only uncontested, they are also derived from official SADC documents. They are accordingly to be treated as common cause.
B. Procedural and factual background
4. In drawn-out domestic litigation,[2] and thereafter extensive proceedings before the SADC Tribunal,[3] the applicants have contested
(a) firstly, the ouster of domestic courts' jurisdiction to hear cases concerning the racially-motivated expropriation of property, without compensation, by Zimbabwe;[4]and
(b) secondly, the validity of ouster-clauses entitling State-owned financial institutions to execute on agricultural land through self-help, denying an aggrieved party all access to court.[5]
5. The SADC Tribunal upheld both challenges to the ouster of Zimbabwe's domestic courts' jurisdiction. However, this proved to be only the beginning of the applicants' struggle for access to courts.
(1) Repudiation of Tribunal's rulings and suspension of Tribunal
6. The Tribunal's decisions against Zimbabwe have been repudiated by Zimbabwe. This led to successful referral proceedings before the SADC Tribunal, whereby Zimbabwe's contemptuous disregard for the Tribunal's rulings was referred by the Tribunal to the SADC Summit (the executive arm of SADC) to impose an appropriate sanction on Zimbabwe. But the Summit consistently failed to do so. Instead, it suspended the SADC Tribunal: first by a decision of 16-17 August 2010,[6] thereafter by a decision of 20 March 2011,[7] and most recently by a decision of August 2012.[8] (We refer to these three decisions collectively as "the impugned decisions".)
7. These decisions were made despite an independent international investigation, triggered by the Summit, into the Tribunal and its jurisdiction; the investigation (by a Cambridge international law expert) confirmed that both the jurisdiction and functioning of the Tribunal were on a principled, sound finding.
8. Thus, paradoxically, the applicants' success before the Tribunal led to the Tribunal's own jurisdiction (to rule on the validity of inter alia ouster clauses) being ousted by the SADC Summit. But the Summit went further: it also terminated the Tribunal's jurisdiction to consider any other claims by individuals, as the text of its most recent decision (to which we revert below) shows.
9. As a result, the first applicant and the second applicant's now-deceased father in law instituted proceedings before the SADC Tribunal to rule on the validity of the SADC Summit's termination of the Tribunal's jurisdiction. However, the application could not be enrolled for hearing, because the decisions complained of rendered it impossible to empanel a quorate Tribunal. In practical terms, the Summit had ensured that the Tribunal cannot further function.
(2) Lodging of communication
10. For this reason, the current applicants instituted this communication on 22 July 2011.[9] They did so not only in their own interest, but also in the interest of other litigants,[10] including employees and appointees of SADC and the justices of the SADC Tribunal, whose employment were terminated as an express corollary of the Tribunal's suspension.[11]
11. Subsequent to the institution of the communication (over a year and a half ago), two further developments came to light. For the sake of completeness, we briefly set out these below. Neither aspect raises an issue which can give rise to any factual dispute.
(3) Termination of Tribunal's jurisdiction
12. The first of these developments has already been recorded in our submissions in response to Tanzania's solitary, failed, opposition to the admissibility of this communication. It relates to the subsequent decision - over thirteen months after the current communication was lodged - by the SADC Summit to perpetuate the situation complained of, in short, defeating "every individual['s] ... right to have his cause heard".[12]
13. This the Summit purportedly did by supplanting the Tribunal's suspension with a permanent ouster of its jurisdiction in relation to complaints brought by individuals. Again the Summit acted in this fashion by mere executive decree; no amendment to the SADC Treaty (or even the Protocol, which forms an integral part of the Treaty and thus enjoys SADC constitutional status) was effected to authorise this. The conclusive proof of the permanent ouster has been attached to our submissions in response to Tanzania. We attach it again (marked "A"), for ease of reference.
14. It is clear that the latter executive decree is simply a perpetuation of the conduct complained of in this communication. Accordingly it forms an integral, consummating part of what is now a continuous cause of action. If the Commission upholds the complaint formulated in the terms of the communication (as framed before the latter-day executive decree), it follows a fortiori that the even grosser violation of the right of access to court (and the associated bases on which the communication rests) must suffer the same fate: it too should be declared unlawful.
15. Indeed, the continuous nature of the violation is demonstrated by the recent request to the African Court on Human and Peoples' Rights brought by the Pan-African Lawyers Union ("PALU") and the Southern African Litigation Centre ("SALC").[13] It is this request which raises the second issue which we note in order to complete the procedural and factual background in which the present communication is to be considered.
(4) Request for advisory opinion
16. PALU and the SALC's request for an advisory opinion was lodged only very recently, on 23 November 2012. This most recent development came about only long after the Commission irrevocably resolved to be seized of the current communication (lodged on 22 July 2011) at its 11th Extra-Ordinary Session (which took place from 21 February to 1 March 2012), and even after the Commission ruled the communication admissible at its 52nd Ordinary Session (during 2 to 22 October 2012).
17. From PALU and the SALC's request for an advisory opinion it is clear that the cause of complaint is the very subject-matter of the current communication. The request is brought "under Article 4 of the Protocol to the African Charter on Human and Peoples' Rights on the Establishment of the African Court on Human and Peoples' Rights"[14] and "Rule 68 of the Rules of the African Court on Human and Peoples' Rights".[15] However, the request does not refer to the current communication or the fact that the Commission is seized with it. It accordingly also does not note that the Commission has already declared this communication admissible.
18. What the PALU and the SALC's request does demonstrate, however, is the pressing need for the violations complained of in the current communication to be dealt with definitively. We submit that the Charter's clear provisions make it incumbent on the Commission in circumstances like the present to consider the communication,[16] and to do so without undue delay. On the other hand, the Court's advisory jurisdiction is discretionary.[17] Moreover, the Court's discretionary jurisdiction may only be exercised "provided the subject matter of the opinion is not related to a matter being examined by the Commission".[18] In this case the subject matter of the requested opinion is identical to the matter being examined by the Commission. Thus the request for an advisory opinion from the Court cannot constitute a basis for deferring the Commission's own deliberations on a prior communication to it.
19. We accordingly submit that whereas PALU and the SALC's request to the Court serves to demonstrate the importance of the communication being considered, it does not in any way detract from the importance of the Commission itself considering the communication. In the light of the Commission having "established itself firmly as the primary human rights body on the African continent",[19] we ask that the communication be considered on its merits pursuant to the Commission's final and binding decision on seizure and admissibility, and that this be done at the Commission's earliest convenience.
C. The complaint
20. As mentioned, the applicants complain that the impugned decisions violate numerous provisions of international law, are irregular, irrational and arbitrary, and motivated by extraneous considerations. Each of these causes of action is dealt with separately below, because they constitute separate and independent causes of action. They nevertheless overlap and mutually reinforce one another,[20] as the authorities referred to below demonstrate.
(1) Illegality of the impugned decisions for violating international law
21. The impugned decisions violate numerous provisions and principles of international law. We set out the most important of these under five separate subheadings.
(a) Violation of the right of access to court
22. The right of access to court is protected in numerous international-law instruments.[21] This is because, as this Commission has stressed, the right to access courts "is essential for the protection of fundamental human rights and freedom", and "every person whose rights or freedoms are violated is entitled to have an effective remedy".[22]
23. In this communication the applicants in particular invoke and rely upon Articles 7 and 26 of the African Charter. On numerous previous occasions the Commission has held that "ouster clauses ... violate Articles 7 and 26 of the Charter".[23]
24. In Civil Liberties Organisation / Nigeria it was stated:
"The ousting of jurisdiction of the courts of Nigeria over any decree enacted in the past ten years, and those to be subsequently enacted, constitutes an attack of incalculable proportions on Article 7. The complaint refers to a few examples of decrees which violate human rights but which are now beyond review by the courts. An attack of this sort on the jurisdiction of the courts is especially invidious, because while it is a violation of human rights in itself, it permits other violations of rights to go unredressed."[24]
25. The Commission went on to explain the interrelated nature of the rights entrenched by Articles 7 and 26:
"Article 26 of the African Charter reiterates the right enshrined in Article 7 but is even more explicit about States Parties' obligations to: ‘guarantee the independence of the Courts and ... allow the establishment and improvement of appropriate national institutions entrusted with the promotion and protection of the rights and freedoms guaranteed by the present Charter.' While Article 7 focuses on the individual's right to be heard, Article 26 speaks of the institutions which are essential to give meaning and content to that right. This Article clearly envisions the protection of the courts which have traditionally been the bastion of protection of the individual's rights against the abuses of state power."[25]
26. Foreclosing access to the SADC Tribunal to individuals is accordingly a clear violation of Article 7 and Article 26 of the African Charter, and repudiates the decisions of this Commission on these provisions. This violation is compounded by the further manifestations of Charter violations to which it leads, identified separately below.
(b) Violation of the independence, competence and institutional integrity of the SADC Tribunal
27. Not only the right to access courts but also the independence of the judiciary is, the Commission consistently confirmed, violated by ouster clauses.[26]For instance, in Lawyers for Human Rights / Swaziland the Commission held
"The acts of ... ousting the jurisdiction of the courts on certain matters in themselves do not only constitute a violation of the right to fair trial as guaranteed in Article 7 of the Charter, but also tend to undermine the independence of the judiciary."[27]
28. The Commission accordingly concluded that "the doctrine of separation of power [was] undermine[d] and ... abuse[d]."[28] (We revert to this separate basis on which the decisions are impugned below.)
29. A similar conclusion was reached in Sir Dawda K. Jawara / The Gambia:
"By ousting the competence of the ordinary courts to handle human rights cases, and ignoring court judgements, the Gambian military government demonstrated clearly that the courts were not independent. This is a violation of Article 26 of the Charter."[29]
30. Other comparable authorities have reached the same conclusion. For instance, in Oló Bahamonde v Equatorial Guinea the Human Rights Committee observed:
"that the notion of equality before the courts and tribunals encompasses the very access to the courts, and that a situation in which an individual's attempts to seize the competent jurisdictions of his or her grievances are systematically frustrated runs counter to the guarantees of article 14(1). ... The Committee considers that a situation where the functions and competences of the judiciary and the executive are not clearly distinguishable or where the latter is able to control or direct the former is incompatible with the notion of an independent and impartial tribunal within the meaning of article 14(1) of the Covenant."[30]
31. Moreover, a yet further violation of the Summit's duty not to violate the independence and institutional integrity of the Tribunal is manifested in the manner in which the Tribunal's members were treated.[31] As the Commission held in Lawyers for Human Rights / Swaziland
"Article 26 of the Charter provides that states parties shall have the duty to guarantee the independence of the courts. Article 1 of the UN Basic Principles on the Independence of the Judiciary states that ‘[t]he independence of the judiciary shall be guaranteed by the state and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of judiciary'. Article 11 of the same Principles states that ‘[t]he term of office of judges, their independence, [and] security ... shall be adequately secured by law'. Article 18 provides that ‘[j]udges shall be subject to suspension or removal only for reasons of incapacity or behaviour that renders them unfit to discharge their duties'. Article 30 of the International Bar Association (IBA)'s Minimum Standards of Judicial Independence also guarantees that ‘[a] judge shall not be subject to removal unless, by reason of a criminal act or through gross or repeated neglect or physical or mental incapacity he/she has shown himself/herself manifestly unfit to hold the position of judge' [article 30], and article 1(b) states that ‘[p]ersonal independence means that the terms and conditions of judicial service are adequately secured so as to ensure that individual judges are not subject to executive control'."[32]
32. The facts set out by the four justices concerned clearly constitute a violation of the court's members' independence.[33] The facts further demonstrate the Summit's drastic departure from the Commission's Resolution on the Respect and the Strengthening on the Independence of the Judiciary,[34] in which it "called upon all state parties to the Charter to ... refrain from taking any action which may threaten directly or indirectly the independence and the security of judges and magistrates." This, too, constitutes an independent violation of Article 26 of the African Charter.[35]
(c) Retrospective termination of extant proceedings and deprivation of accrued remedies
33. As the communication demonstrates,[36] the initial suspension did not expressly terminate extant proceedings before the SADC Tribunal. Nevertheless, this was the de facto result, because the Tribunal was no longer quorate and could accordingly not convene to hear cases.[37] It was the second decision which contrived explicitly to abolish existing causes instituted before the Tribunal (e.g. claims for revalorisation,[38] and for compensation),[39] and remedial hearings necessitated by Zimbabwe's failure to comply with the Tribunal's rulings.[40] As the Tribunal's Registrar's most recent letter of 16 October 2012 confirms (a copy of which is attach, marked "B"), the Summit's decisions mean that the Tribunal cannot hear either new cases or existing cases instituted prior to the purported suspension.
34. The termination of an extant claim is an independent and serious violation of inter alia Articles 3(2) and 7(1) of the African Charter,[41] Article 2(3) of the International Covenant on Civil and Political Rights,[42] and Article 27 of the Vienna Declaration and Programme of Action.[43]
35. It was condemned by the Commission at the previous occasion when the same State purported to achieve a similar result in its own domestic law. InZimbabwean Human Rights NGO Forum v Zimbabwe the Commission stated:
"In light of the above, the African Commission holds that by enacting Decree No. 1 of 2000 which foreclosed access to any remedy that might be available to the victims to vindicate their rights, and without putting in place alternative adequate legislative or institutional mechanisms to ensure that perpetrators of the alleged atrocities were punished, and victims of the violations duly compensated or given other avenues to seek effective remedy, the Respondent State did not only prevent the victims from seeking redress, but also encouraged impunity, and thus reneged on its obligation in violation of Articles 1 and 7(1) of the African Charter."[44]
36. In the present case the attempt to foreclose access to the Tribunal should a fortiori be declared unlawful, because in casu not only Zimbabweans are now deprived of a remedy and forum in which to vindicate their human rights[45] - all citizens of SADC are rendered without effective relief for violations of international and SADC law.
37. This is further supported by the Human Rights Committee's finding in relation to Article 14(1) of the International Covenant on Civil and Political Rights. The Committee found that "it would be objectionable and in violation of the right to access to court if a State party would by law discontinue cases that are pending before the courts".[46] Stated differently, "the forced discontinuance of a person's suit without his/her consent would breach the right to access a court under Article 14(1) [of the International Covenant on Civil and Political Rights]".[47] The same clearly applies under Article 7, read with Article 26 (to which it is closely related),[48] of the African Charter.
38. Ultimately the cumulative effect of ousting courts' jurisdiction, their systemic stultification by the Executive, and even the termination of extant proceedings and abolition of vested remedies inevitably threatens the rule of law itself, as we shall show.
(d) Violation of the rule of law
39. The rule of law is a fundamental doctrine operating both in national[49] and international law.[50] It acts as a safeguard against abuse of executive power,[51] and is an explicit governing principle in the SADC Treaty.[52]
40. The rule of law doctrine has been formulated in different terms,[53]but has been captured concisely by Judge President Mzikamanda - in the specific context of the suspension of the SADC Tribunal - thus:
"The rule of law envisages that everyone is subject to the discipline and sanctity of the law. No one shall set himself above the law no matter what position they occupy in society. Actions of all and sundry must conform to the law. The rule of law is the antithesis of the existence of wide, arbitrary powers in the hands of the executive or the legislature. Society is required to observe the rule of law if it is to be orderly. Rulers have an even greater obligation to observe the rule of law at all times in order to reinforce the rule of law and eliminate the possibility of the emergence of the rule of men. The rule of law is predictable. The rule of men is unpredictable. The mechanism of judicial review ensures that the rule of law is adhered to by all those performing public functions. Executive decisions and legislative enactments which fall outside the framework of the rule of law must be declared invalid if the executive and the legislature must be compelled to observe the rule of law. This will ensure enjoyment by the individual of the rights and liberties guaranteed by the constitution. Thus an independent judiciary is a critical element to the rule of law."[54]
41. Similarly another senior judge of Southern Africa - the now-retired third Chief Justice since Zimbabwe's independence, Mr Justice Gubbay - explained (also with reference to the position in Zimbabwe and the SADC region):
"The rule of law ... is a celebration of individual rights and liberties, and all the values of a constitutional democracy, characterized by the absence of unregulated executive or legislative power. [A constitutional democracy] is a society in which the rule of law is observed, through the mechanism of judicial review."[55]
42. Thus access to courts, and courts' supervisory power over the executive, is an essential ingredient of the rule of law. This the SADC Tribunal itself confirmed:
"It is settled law that the concept of the rule of law embraces at least two fundamental rights, namely, the right of access to the courts and the right to a fair hearing before an individual is deprived of rights, interests or legitimate expectations".[56]
43. The Tribunal also held that the rule of law doctrine includes inter alia the right to have an effective remedy, the right of access to an independent and impartial court or tribunal and the right to equality before the law and equal protection of the law.[57] These findings are well-supported by trite authorities.
44. The suspension and termination of the Tribunal is accordingly per se a violation of the rule of law, because it (i) precludes court supervision by the judicial arm of SADC over the Executive, (ii) ousts access to court, (iii) removes a remedy before an independent and impartial court, and (iv) withholds the law's protection of individuals against States. That this ouster was self-servingly perpetrated by the Executive is clearly compounding. That it follows on the disregard by Zimbabwe first of its national courts' orders[58] (before the ouster of their jurisdiction) and then the orders of the SADC Tribunal (after the ouster was ruled a violation of the rule of law) is yet further compounding.
45. The gross violation of the rule of law complained of in this communication requires the Commission's urgent and decisive action - lest what Judge President Mzikamanda cautions against ("big-man rule ... rendering the judiciary ineffective or compliant" and presenting a challenge to "constitutionalism in Southern Africa ... epitomized by the suspension of the SADC Tribunal which is the judicial organ of SADC, at the behest of Zimbabwe")[59] become endemic, "both at regional and national level."[60] Or lest the ouster of domestic courts' jurisdiction in Zimbabwe - which led to the Tribunal's condemnation, and which in turn led to the ouster of the Tribunal's ouster instead of Zimbabwe's expulsion from SADC - be condoned. This ouster has
"been roundly, and aptly, condemned as being without modern parallel in any constitutional democracy worthy of its name. They set Zimbabwe apart from all member states of SADC, the British Commonwealth and the African Union, which function as constitutional democracies. They violate Zimbabwe's international law obligations, most immediately through its membership of the African Union. They entail the abrogation of constitutionalism and elevate the fiat of the executive and legislature over the entrenched core provisions of the Constitution. They certify the existence of a totalitarian state."[61]
46. Left unchecked by the only extant forum with jurisdiction (this Commission),[62] the totalitarianism must necessarily metastasise, as Judge President Mzikamanda warned:
"Recently the operations of the SADC Tribunal were suspended by Summit, the political organ of SADC. The suspension of the SADC Tribunal, the judicial organ of the regional grouping, is quite telling. Among other things, it demonstrates how disregard for the rule of law at national level can manifest itself at the regional level through influential members of the regional grouping."[63]
47. Similarly the African Bar Associations and Rule of Law Institutions have expressed concern in its 2009 Arusha Communique that "some African countries have depicted a tendency to undermine judicial authority at both the domestic and regional levels".[64] The Communique warns, as did Mr Justice Mzikamanda, of a "contagion-effect throughout the continent."[65] The Communique also identified the attempt to interfere with the SADC Tribunal's jurisdiction as a continuation of Zimbabwe's "dismantl[ing] [of its own] Supreme Court and High Court when they were seen as issuing decisions which the Government disliked".[66] It further identified the interference as "an assault on the principle of separation of powers".[67]
48. It is in this light that we now turn to the final basis on which we submit the impugned decisions violate specific provisions of international law, before dealing with the three additional main challenges to the impugned decisions.
(e) Violation of the doctrine of separation of powers
49. Evidently the suspension and termination of the Tribunal also violate the equally fundamental doctrine of separation of powers.[68] The doctrine is recognised in all democratic domestic constitutions[69] and in international law.[70] It has also been applied on numerous occasions by the Commission.[71]
50. The doctrine requires that powers be distributed between different spheres of government (typically the executive, legislature and judiciary). It serves to prevent that one organ of government exercise the competence of another organ, or that powers are concentrated.[72] It enables courts to fulfil their fundamental role: to "stand between the subject and any attempted encroachment on his liberty by the Executive, alert to see that any coercive action is justified in law."[73]
51. The principle necessarily presupposes that a judiciary exists to which the adjudication of disputes is entrusted.[74] The objective is "to prevent arbitrary or tyrannical rule and to protect the governed."[75] "The main raison d'être of the principle of separation of powers is to ensure that no organ of government becomes too powerful and abuses its power."[76]
52. This principle is fundamental also to the SADC Treaty, which operates as the constitution for SADC.[77] This is demonstrated by Article 4,[78] Article 6,[79] Article 9(1)(g),[80] Article 16,[81] and Article 32.[82] As the SADC Treaty itself recognises, without a Tribunal, the Executive's power is left unchecked. An unchecked Executive is thus a violation of the very structure of the SADC Treaty. But it is also contrary to the Commission's caselaw.[83] Any such result is indeed a recipe for anarchy.
53. For this reason the suspension of the judicial organ of SADC (the Tribunal) by its executive organ (the Summit) has correctly been described as "the fall ... of constitutionalism in Southern Africa" and as "a potentially fatal blow to the rule of law in the region" with a "devastating impact ... on [the] protection of human rights and ... access to justice".[84] The suspension of the Tribunal has also been identified as a particularly troubling manifestation of
"a culture of disregard for the rule of law and constitutionalism with impunity that develops in one member state [which] provides negative lessons for the other member state to follow. The suspension of the SADC Tribunal, a judicial organ of the region, at the behest of Zimbabwe who refused to comply with rulings and orders of the Tribunal stand out as an example of the regional influence referred to here."[85]
54. Moreover, the impugned decision is a violation of the doctrine of separation of powers also for a further, independent, reason. It purports to reverse the Tribunal's final and binding decision on its jurisdiction under the Treaty[86] (which is the exclusive competence of the Tribunal).[87] This violation is further compounded by the fact that the Summit purported to do this without amending the Treaty and the Protocol,[88] which forms an integral part of the Treaty. Although it is closely related to the violation of the doctrine of separation of powers, we deal with this patent irregularity separately below, because it constitutes a separate vitiating ground of attack against the impugned decision.
(2) Procedural irregularity of impugned decisions
55. Despite the fact that the Tribunal forms an integral part of the SADC system,[89] created by the Treaty itself (to uphold the rule of law and to check the executive),[90] the Summit resorted to dispense with the Tribunal by executive decree. Thus the Tribunal's jurisdiction was not curtailed by amendment to SADC's governing Treaty. It was perpetrated by executive fiat.
56. Article 36 of SADC Treaty requires a special majority for amending the Treaty.[91] This obviously serves to ensconce the essential organs of SADC established by section 9 of the SADC Treaty. It is not lawful for one organ of SADC to purport to suspend or interfere with the jurisdiction of another organ, least of all if the interference is by the executive organ with the judicial organ - because it is the function of the latter to check the powers of the former. The Summit's self-serving, extra-legal and ultra vires[92] attempt to immunise itself from judicial supervision is accordingly particularly problematic.
57. As the Summit itself acknowledged in May 2011,[93] the legal framework had to be amended before the SADC Tribunal's jurisdiction or powers could in any way be altered. Yet the Summit suspended the Tribunal before any legal basis existed authorising this. To date there has still been no legal basis to authorise the impugned decisions. The Summit thus acted extra-legally and ultra vires - to its knowledge.[94]
58. Both national and international courts have consistently declared similar attempts invalid.
59. For instance, in Harris v Minister of the Interior the South African Appellate Division declared invalid an attempt to manipulate entrenched clauses in the South African Act. The attempt concerned the disenfranchisement of certain voters on the ground of their race. Harris accordingly also concerned a race-motivated measure, as is the case with the ouster of domestic courts' jurisdiction in order to facilitate racially-discriminatory expropriations in Zimbabwe - which ultimately resulted in the purported ouster of the SADC Tribunal's jurisdiction too.
60. The Appellate Division invalidated the measure because it did not comply with the procedural requirements entrenching a constitutional preordination.[95]Based on the same approach, the government's subsequent attempt to supplant the ordinary courts of the land by a "High Court of Parliament" was likewise annulled by the Appellate Division in Minister of the Interior v Harris.[96]
61. A similar approach was adopted by the Supreme Court of Zimbabwe (sitting as Constitutional Court) in Biti v The Minister of Justice, Legal and Parliamentary Affairs.[97] The judgment confirms that even a legislative body is not authorised to dispense with legally-prescribed procedures for the sake of political expedience.[98]The Court referred to numerous supporting authorities.[99]
62. The same principle has been applied by this Commission in Civil Liberties Organisation / Nigeria:
"Given that Nigeria ratified the African Charter in 1983, it is presently a convention in force in Nigeria. If Nigeria wished to withdraw its ratification, it would have to undertake an international process involving notice, which it has not done. Nigeria cannot negate the effects of its ratification of the Charter through domestic action. Nigeria remains under the obligation to guarantee the rights of Article 7 to all of its citizens."[100]
63. Thus the only lawful approach to adopt by a State wishing to repudiate its treaty obligations is to withdraw from the treaty. Similarly, the only lawful approach for an executive wishing to cut itself loose from judicial supervision imposed by treaty is to amend the treaty (unless, of course, this constitutes a violation of a substantive right, like access to court).[101] The Summit was accordingly not authorised to interfere with the Tribunal's jurisdiction by executive decree. Because it purported to do so, "any citizen adversely affected by any decree, order or action of any official or body, which is not properly authorised by the [treaty], is entitled to the protection of the courts."[102]
64. Furthermore, the purported suspension of the Tribunal was also embarked upon without any notification to President of the Tribunal, or even to any other member,[103] or any other affected party.[104] It has been described by the Tribunal members as "a bolt out of the blue", and a "decision which was taken behind the back of the [Tribunal] members [concerned]" for which "[n]o reason was given".[105] This constitutes a second, independent, basis on which the impugned decisions are irregular: the suspension violates the fundamental requirement of procedural fairness, contrary to the requirements of the SADC Treaty.[106]
(3) Irrationality and arbitrariness of impugned decisions
65. Despite the conclusion of the independent expert that the Tribunal's decisions were competent and requires to be complied with, the Summit suspended the Tribunal.[107] This was done notwithstanding Summit's initial contended rationale for suspending the Tribunal in May 2011: to review its terms of reference. When the review was completed and the resulting expert report recommended measures to strengthen the Tribunal's powers, the converse was done: the Tribunal's jurisdiction was ousted indefinitely.
66. This is compounded by the Summit's 180-degree departure from the recommendations by the Ministers of Justice/Attorneys-General. They had recommended in April 2011 that the legal framework in which the Tribunal operate be improved.[108] Instead, the Tribunal's operation has - by the Summit's decree - suffered deterioration and practical obliteration. It cannot even continue hearing the quantum (computation of damages) part of the Campbell case, as envisaged in that judgment; or declare unlawful the continued defiance of its orders by recalcitrant States; or order interim relief pending the Summit's consideration of appropriate sanctions, while individuals protected by the judgment on the merits are still being prosecuted by Zimbabwe before its courts (whose criminal jurisdiction to try Campbelllitigants was not ousted; only their jurisdiction to review State conduct were).
67. At no stage did the Summit provide any reasons for the impugned decisions, or for rejecting the recommendation of the independent expert as endorsed by the Minister of Justice/Attorneys-General. Even in response to this Communication some one and a half years ago, there has still been no rational basis suggested for the impugned decisions. The failure to do so is understandable: no valid reason exists. The Tribunal's work has consistently been commended and encouraged,[109] and no proper basis exists for its suspension.
68. It is therefore unsurprising that this arbitrary outcome has been described in critical terms by virtually every commentator writing on the issue. For instance, one commentator has observed
"when the SADC Tribunal complained to Summit that one of their members, Zimbabwe, was not respecting and complying with the orders of the court, Summit decided to punish the complainant by suspending its operations, and to reward the non-complying party by doing nothing about the order of the court."[110]
69. Other analysts have described the SADC Summit's resolution as an "abrupt u-turn, with the SADC heads of State deciding ... to bar the regional tribunal from further work" despite the expert report which reflected favourably on the Tribunal's work and the Ministers of Justice supporting the report's thrust.[111]
70. A third commentator has noted that
"[o]ne would have hoped that the Summit would welcome the occasion to assert and reaffirm the Tribunal's mandate by calling for the enforcement of its decisions. Instead, the Summit effectively suspended the Tribunal."[112]
71. These observations of themself demonstrate the arbitrary nature of the impugned decision: instead of achieving the purpose of Article 32(5), i.e. imposing an appropriate sanction on Zimbabwe, the Tribunal (whose work was commended) was effectively expelled as SADC organ.
72. This necessarily leads to the final, independent, ground on which the impugned decisions are challenged.
(4) Bad faith, improper purpose and extraneous considerations motivated the impugned decisions
73. The only conclusion to be drawn from the above observations - coupled with the lack of a reasoned basis for departing from the unanimous views of the independent expert and the Ministers of Justice/Attorneys-General - is that Summit'svolte face was motivated by extraneous considerations, and that it acted in bad faith.[113] The disparity between the motivations before the Summit by the independent expert and the Ministers of Justice/Attorneys-General (reinforcing and improving the Tribunal) and the impugned decision (suspending and undoing the Tribunal) is so gross that this in itself demonstrates the decisions' arbitrariness and that they were made for ulterior purposes.[114]
74. International commentators have come to the same conclusion. The impugned resolution has been described as "Southern African governments' move to rein in [the SADC] Tribunal" because of its "judgment [against] Zimbabwe", resulting in "a political backlash against [the] SADC Tribunal".[115] Instead of exercising the power under Article 32(5) of the Tribunal on the SADC Tribunal to take appropriate action against the member State in defiance of the Tribunal's findings on the ouster of domestic courts' jurisdiction, the Summit took action against the Tribunal by ousting the Tribunal's jurisdiction.[116]
75. Accordingly the Summit exercised a power conferred to achieve one purpose (sanctioning a defaulting State), to contrive another (creating impunity for current and future States, by ousting the Tribunal's jurisdiction). This is a vitiating irregularity, as is trite law in all member States and the rest of the democratic world.
76. Summit's stratagem of contriving a suspension pending the review of the Tribunal now stands exposed.[117] Before August 2012 the contended purpose for the suspension (the review of the Tribunal) was simply spurious,[118] because the review demonstrably did not require the pari passu suspension.[119] But this "purpose" has now been shown to be subterfuge: the suspension was made indefinite after the review was concluded. Because the review culminated in a report recommending the strengthening of the Tribunal, Summit's decision to weaken the Tribunal clearly bears no relation to the "purpose" of reviewing the function and operation of the SADC Tribunal. If the suspension had any bona fide relationship with the review, the review's outcome would of course have moved the Summit to lift the suspension - and to strengthen the Tribunal, as the report recommended.
77. Accordingly the applicants' charge of bad faith is evidently justified,[120] especially in the absence of any explanation to the contrary as yet (despite these allegations having been made already in March 2011).[121] This failure is compounded by the fact that the applicants have - more than 21 months ago - invited the Summit in the interests of truth and transparency to disclose its reasons for its opaque modus operandi.[122] None has been provided.
78. Accordingly the violation of the African Charter, the SADC Treaty and general principles of international law as pronounced and applied by the Commission has been established on numerous independent and mutually-supporting bases.
(5) No derogation
79. It is of course well-established that the African Charter does not authorise any derogation. "The limitations on the rights and freedoms enshrined in the Charter cannot be justified by emergencies and special circumstances".[123] Accordingly the suspension of the Tribunal is per se unlawful, and it cannot be justified - not even on the basis of an investigation being conducted into its jurisdiction and functioning (even were there to be any truth in this initial affected rationale).
80. But even were any derogation notionally possible, the high threshold requirements applicable in such situations are not met.[124] Limitations which "restrict or reduce the access [to court] left to the individual in such a way or to such an extent that the very essence of the right is impaired" are not authorised by international law.[125] The impugned decisions are thus inherently incapable of being justified as a lawful derogation, because:
(a) They impede individuals' right of access to the Tribunal in toto. The decisions obliterate the very essence of the right, and do so in absolute terms. In terms of the second impugned decision, no case (of whatever nature, whether new or extant, and irrespective of the circumstances) may be heard by the SADC Tribunal; and in terms of the Augusts 2012 decision, no individuals may approach the Tribunal (however desperate their plight might be, and whether or not their access to a domestic court has been ousted - as is the case with the present applicants).
(b) They violate the SADC Treaty's own premise, which "puts people in the community at the centre of its preoccupation and action".[126] The termination of the Tribunal's jurisdiction to hear complaints by individuals is thus a violation of the essence of the Treaty. Terminating the Tribunal's jurisdiction to hear individuals' complaints about human rights violations in particular infringes Article 4(c) and 6(1) of the Treaty, which cannot be justified.
81. Furthermore, as Judge President Mzikamanda observed (with reference to the impugned suspension of the SADC Tribunal), "[r]egional courts, just like national courts, are critical to protecting human rights and the rule of law".[127] Indeed, human right cannot be adequately protected if supra-national bodies' jurisdiction is limited to inter-State disputes. This is demonstrated by the experience with the failed Commission of Mediation, Conciliation and Arbitration.[128]
82. The demonstrable violations of the African Charter, the SADC Treaty and other provisions and principles of international law are accordingly unlawful and incapable of justification.
D. Conclusion and appropriate remedy
83. Because the impugned decisions are "contrary to the essence of justice"[129] in that they purport to oust the Tribunal's jurisdiction in defiance of the rule of law (and by repudiating the authorities set out above), there is "no decision within the meaning of the [law]".[130] Accordingly the impugned decisions are invalid. They should therefore be annulled,[131] and their effect should be remedied. This is to be achieved by granting the relief set out in the notice of communication:
(a) declaring the decisions to violate the African Charter, SADC Treaty and other provisions of international law binding the respondents;
(b) directing the respondents to lift the purported suspension of the SADC Tribunal, and to do all things necessary to restore its jurisdiction and operation;
(c) directing the respondents to give effect to the rulings by the SADC Tribunal; and
(d) implementing the recommendations made in the final report on the review of the role, responsibilities and terms of reference of the SADC Tribunal (dated 6 March 2011).
84. We accordingly ask for an order in terms of the notice of communication, which we submit gives effect to the authorities cited above, and to the Commission'sResolution on the Respect and the Strengthening of the Independence of the Judiciary. This resolution requires inter alia that judiciaries be resourced sufficiently to enable them to fulfil their functions and that executive authorities "refrain from taking any action which may threaten directly or indirectly the independence and security of judges ...".
85. We further submit that it is just and equitable to direct those respondents who elect to actively oppose the communication to pay the costs of the applicants, such costs to include the costs of two instructed counsel and one instructed legal practitioner (which we submit the importance of the matter justifies).
86. In conclusion, we again stress the urgency of these proceedings. One of those directly concerned (Michael William Campbell) has already died - this as a result of the vicious assaults perpetrated on him in the course of the SADC proceedings.[132] So has the first applicant's young daughter.[133] He and other applicants are themselves now elderly, and long-bereft of support, having lost their livelihoods. More simply, and with the widest potential effect across the continent, the termination by the respondent-members of SADC of the adjudicative (and human rights protective) jurisdiction for more than 250 million individuals is inherently urgent. The proceedings thus far - 18 months have been consumed by issues of procedural compliance - accentuate the need now for a swift response by the Commission.
J.J. GAUNTLETT SC
F.B. PELSER
Counsel for the applicants
Chambers
Cape Town, South Africa
24 December 2012
Footnotes:
[1] Record p 9 para 12; Record p 12 para 22.
[2] As the SADC Tribunal observed already in 2009, the first applicant "is an old man of 71 years who has had to bear an intolerable burden, financial, moral and otherwise, for some nine years in fighting against the power and resources of the Respondent, which had successfully and systematically used all kinds of delaying tactics, procedural objections of all kinds..." (Record p 40)
[3] The proceedings have lasted for several years (Record p 16 para 33).
[4] See Record pp 69-129 for the text of the Campbell judgment.
[5] See Record pp 18-42 for the text of the subsequent Tembani judgment.
[6] Record p 164 para 9.3.
[7] Record p 173 para 8.
[8] Attached, marked "A".
[9] Record p 3 line 6.
[10] Record p 15 para 31.
[11] Record p 16 para 32.
[12] Article 7(1) of the African Charter.
[13] "The 18 August 2012 decision further extends the suspension of the operations of the SADC Tribunal indefinitely since the first suspension in August 2010" (para 15 of the request).
[14] Article 4(1) provides:
"At the request of a Member State of the OAU, the OAU, any of its organs, or any African organization recognized by the OAU, the Court may provide an opinion on any legal matter relating to the Charter or any other relevant human rights instruments,provided that the subject matter of the opinion is not related to a matter being examined by the Commission" (emphasis added).
[15] Rule 68(3) provides:
"The subject matter of the request for advisory opinion shall not relate to an application pending before the Commission."
[16] Article 56 of the Charter provides peremptorily that where the requirements for admissibility are met (as the Commission has already conclusively held is the case), the communication "shall be considered" (emphasis added).
[17] Article 4 of its Protocol provides that "the Court may provide an [advisory] opinion" (emphasis added).
[18] Article 4(1) of the Protocol.
[19] Centre for Human Rights, University of Pretoria Celebrating the African Charter at 30: A Guide to the African Human Rights System (PULP, 2011) at 60.
[20] Purohit and Moore / The Gambia Comm no. 241/01 at para 48.
[21] In accordance with the Commission's established approach, required by Articles 61 and 62 of the African Charter, the applicants rely on all appropriate and relevant international and regional human rights instruments, principles and standards (Purohit and Moore / The Gambia Comm. no. 241/01 at paras 47 and 48). In what follows, we focus on only the most pertinent precedents.
[22] Resolution on the Right to Recourse and Fair Trial, adopted at the Commission's meeting in its Eleventh Ordinary Session, in Tunis Tunisia, from 2 to 9 March 1992.
[23] See e.g. Constitutional Rights Project and Civil Liberties Organisation / NigeriaComm. no. 143/95, 150/96 at para 34 and the rulings on communications there collected. See also International PEN, Constitutional Rights Project, Civil Liberties Organisation and Interights (on behalf of Ken Saro-Wiwa Jnr) / Nigeria Comm. no. 137/94-139/94-154/96-161/97) at paras 74-76, citing numerous decisions on the requirement of exhausting domestic remedies, concluding: "In all of the cases cited above, the Commission found that the ouster clauses ... create a legal situation in which the judiciary can provide no check on the executive branch of government."
[24] Comm. no. 129/94 at para 13.
[25] Civil Liberties Organisation / Nigeria Comm. no. 129/94 at para 14.
[26] See again Constitutional Rights Project and Civil Liberties Organisation / NigeriaComm. no. 143/95, 150/96 at para 34 and the Commission's decisions there collected.
[27] Comm. no. 251/02 at para 54.
[28] Comm. no. 251/02 at para 56.
[29] Comm. nos. 147/95 and 149/96 at para 74.
[30] (2001) AHRLR 21 (HRC 1993) at para 9.4.
[31] The facts in this regard are summarised in a contemporaneous letter by four members of the SADC Tribunal (Record pp 276-284), and expressly incorporated in the communication (Record p 12 para 23).
[32] Comm. no. 251/02 at para 55.
[33] Record pp 276-284.
[34] Adopted at the Commission's 19th ordinary session held from 26 March to 4 April 1996 at Ouagadougou, Burkina Faso.
[35] Lawyers for Human Rights / Swaziland Comm. no. 251/02 at para 58.
[36] Record p 15 para 30.
[37] Record p 150 para 20: it is now impossible for a full bench of the Tribunal to sit.
[38] To which the applicants in the Gondo case before the Tribunal are entitled (Record p 43).
[39] To which the expropriated applicants in the Campbell case are entitled (Record p 69).
[40] Record p 15 para 30; Record p 142 para 2.
[41] Article 3(2) provides: "Every individual shall be entitled to equal protection of the law."
Article 7(1) provides: "Every individual shall have the right to have his cause heard. ..."
[42] Article 2(3) provides:
"Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies when granted."
"Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein or at their limitation to a greater extent than is provided for in the present Covenant."
[43] Article 27 provides:
"Every State should provide an effective framework of remedies to redress human rights grievances or violations. The administration of justice, including law enforcement and prosecutorial agencies and, especially, an independent judiciary and legal profession in full conformity with applicable standards contained in international human rights instruments, are essential to the full and non-discriminatory realization of human rights and indispensable to the processes of democracy and sustainable development. In this context, institutions concerned with the administration of justice should be properly funded, and an increased level of both technical and financial assistance should be provided by the international community. ..."
[44] (2006) AHRLR 128 (ACHPR 2006) at para 215 (footnotes omitted).
[45] Cf Shay "Fast Track to Collapse: How Zimbabwe's Fast-Track Land Reform Program Violates International Human Rights Protections to Property, Due Process, and Compensation" 2012(27) American University International Review 133 at 170, 171.
[46] Mahuika v New Zealand Comm. no. 547/1993, U.N. Doc. CCPR/C/70/D/547/1993 (2000) at para 9.10.
[47] Joseph et al The International Covenant on Civil and Political Rights: Cases, Materials and Commentary 2nd ed (Oxford University Press, Oxford 2004) at para 14.23, with reference to Mahuika v New Zealand Comm. no. 547/1993, U.N. Doc. CCPR/C/70/D/547/1993 (2000) and citing Joseph "Human Rights Committee: Recent Cases" 2001(1) Human Rights Law Review 83 at 87.
[48] Amnesty International v Sudan (2000) AHRLR 297 (ACHPR 1999) at para 67.
[49] See e.g. Zondi v MEC for Traditional and Local Government Affairs 2005 (3) SA 589 (CC) at para 82, holding that the right of access to court is an aspect of the rule of law and that the rule of law is a foundational value of South Africa's constitutional democracy. On this basis Ngcobo J (as he then was) went on to hold that "in a constitutional democracy founded on the rule of law, disputes between the State and its subjects ... should be adjudicated upon in accordance with law", and declared unconstitutional a provision ousting the jurisdiction of the courts. See too The Republic v Gachoka [1999] 1 EA 254; Bennett v Horseferry Road Magistrates' Court [1993] 2 All ER 474.
[50] See e.g. the Conclusions of the Second Committee of the International Congress of Jurists, New Delhi, India, 1959; the African Conference on the Rule of Law ("The Law of Lagos"); and Katabazi v Secretary General of the East African Community (Ref. no. 1 of 2007) [2007] EACJ 3 (1 November 2007).
[51] Chinsinga et al "Constitutionalism - A Literature Review for the Constitutionalism sub-theme of the Democratic Consolidation in Malawi" NUFU Project (2009).
[52] Article 4(c).
[53] See e.g. Jowell et al De Smith's Judicial Review 6th ed (2007), describing it in the context of ousting courts' jurisdiction thus:
"Legislation which deprives [the judiciary of the function to determine the lawfulness of the acts and decisions and orders of public authorities exercising public functions] is inimical to the principle of the rule of law, which requires citizens to have access to justice."
In Golder v UK (1975) 1 EHRR 524 at para 34 the European Court of Human Rights held that the rule of law cannot be conceived of without the possibility of having access to courts.
[54] "Constitutionalism and the Judiciary: A Perspective from Southern Africa", paper delivered at the Conference for Law Reform Agencies for Eastern and Southern Africa on "The Role of Law Reform in Constitutionalism, Rule of Law and Democratic Governance", Lilongwe, Malawi, 7-11 November 2011.
[55] Gubbay "The Progressive Erosion of the Rule of Law in Independent Zimbabwe" Rule of Law Lecture delivered at Inner Temple (9 December 2009).
[56] Mike Campbell v The Republic of Zimbabwe Case no. SADC (T) 2/2007 (Record p 94).
[57] Gondo v The Republic of Zimbabwe Case no. SADC (T) 05/2008 (Record p 46).
[58] Commercial Farmers Union v Minister of Lands, Agriculture and Resettlement, Zimbabwe 2001 (2) SA 925 (ZS).
[59] Mzikamanda "Constitutionalism and the Judiciary: A Perspective from Southern Africa", paper delivered at the Conference for Law Reform Agencies for Eastern and Southern Africa on "The Role of Law Reform in Constitutionalism, Rule of Law and Democratic Governance", Lilongwe, Malawi, 7-11 November 2011.
[60] Ibid.
[61] Gubbay "The Progressive Erosion of the Rule of Law in Independent Zimbabwe" Rule of Law Lecture delivered at Inner Temple (9 December 2009).
[62] As the East African Court of Justice observed (with reference to the African Charter and this Commission's ruling in Constitutional Rights Project and Civil Liberties / Nigeria Comm. no. 143/95, 150/96) in Katabazi v Secretary General of the East African Community (Ref. no. 1 of 2007) [2007] EACJ 3 (1 November 2007): "the role of the judiciary to provide a check on the exercise of the responsibility in order to protect the rule of law cannot be gainsaid". In Constitutional Rights Project and Civil Liberties Organisation / Nigeria at para 33 the Commission warned about the inherent dangers for the protection of human rights should the executive be allowed to operate without being checked by the judiciary.
[63] "Constitutionalism and the Judiciary: A Perspective from Southern Africa", paper delivered at the Conference for Law Reform Agencies for Eastern and Southern Africa on "The Role of Law Reform in Constitutionalism, Rule of Law and Democratic Governance", Lilongwe, Malawi, 7-11 November 2011.
[64] Record p 273 fourth recital.
[65] Record p 274 para 2.
[66] Record p 273 para 2(f).
[67] Record p 274 para 3.
[68] Record p 150 para 19. As Mr Justice Gubbay noted: "A judiciary which is not independent from the executive and legislature renders the checks and balances inherent in the concept of separation of powers ineffective". A fortiori, the abolition of the judiciary is inimical to the separation of powers doctrine.
[69] For a helpful collection by the Zimbabwean Supreme Court of relevant national courts' caselaw, see Biti v The Minister of Justice, Legal and Parliamentary Affairs (2002) AHRLR 266 (ZwSC 2002).
[70] See e.g. the Human Rights Committee's Concluding Observations on Romania (1999) UN doc. CCPR/C/79/Add.111 at para 10, endorsing the doctrine of separation of power as an essential element of Article 14 of the International Covenant on Civil and Political Rights. The Committee expressed its concern over the "interference of the executive" in judicial matters, and recommended the establishment of "a clear demarcation between the competence of the executive and judicial bodies." See too Joseph et al The International Covenant on Civil and Political Rights: Cases, Materials and Commentary 2nd ed (Oxford University Press, Oxford 2004) at para 14.29.
[71] Inter alia in Constitutional Rights Project (in respect of Akamu, Adega) v NigeriaComm. no. 60/91; Constitutional Rights Project (in respect of Lekwot) v Nigeria Comm. no. 87/93; and Lawyers for Human Rights / Swaziland Comm. no. 251/02.
[72] Mzikamanda "Constitutionalism and the Judiciary: A Perspective from Southern Africa", paper delivered at the Conference for Law Reform Agencies for Eastern and Southern Africa on "The Role of Law Reform in Constitutionalism, Rule of Law and Democratic Governance", Lilongwe, Malawi, 7-11 November 2011.
[73] Lord Atkin in Liversidge v Anderson [1941] 3 All ER 338 at 361, confirmed inInland Revenue Commissioners v Rossminster Ltd [1980] 1 All ER 80 at 93.
[74] Ibid.
[75] Ibid.
[76] Lawyers for Human Rights / Swaziland Comm. no. 251/02 at para 56.
[77] Zongwe "An Introduction to the Law of the Southern African Development Community" (February 2011, Globalex).
[78] Article 4 provides:
"SADC and its member States shall act in accordance with the following principles
...
(c) human rights, democracy and the rule of law;
...
(e) peaceful settlement of disputes."
[79] Article 6 provides:
"(1) Member States undertake to adopt adequate measures to promote the achievement of the objectives of SADC, and shall refrain from taking any measure likely to jeopardise the sustenance of its principles, the achievement of its objectives and the implementation of the provisions of this Treaty".
...
(6) Member States shall co-operate with and assist institutions of SADC in the performance of their duties."
[80] Article 9(1)(g) establishes the SADC Tribunal. Its establishment can only be undone by amending the SADC Treaty in compliance with Article 36, and its jurisdiction can only be limited by amending the Protocol on the Tribunal - to the extent that reversing the Tribunal's own final and binding interpretation of its jurisdiction in terms of Article 16 and 32 of the Treaty is legally competent.
[81] Article 16 provides:
"(1) The Tribunal shall be constituted to ensure adherence to and the proper interpretation of the provisions of this Treaty and subsidiary instruments and to adjudicate upon such disputes as may be referred to it.
(2) The composition, powers, functions, procedures and other related matters governing the Tribunal shall be prescribed in a Protocol which shall, notwithstanding the provisions of article 22 of this Treaty, form an integral part of this Treaty.
(3) Members of the Tribunal shall be appointed for a specified period.
(4) The Tribunal shall give advisory opinions on such matters as the Summit or the Council may refer to it.
(5) The decisions of the Tribunal shall be final and binding."
[82] Article 32 provides:
"Any dispute arising from the interpretation or application of this Treaty, the interpretation, application or validity of Protocols or other subsidiary instruments made under this Treaty, which cannot be settled amicably, shall be referred to the Tribunal."
[83] In Civil Liberties Organisation v Nigeria Comm. no. 129/94 (2000) AHRLR 188 (ACHPR 1995) at para 14 the Commission held:
"... [A]rticle [26 of the African Charter] clearly envisions the protection of the courts which have traditionally been the bastion of protection of the individual's rights against the abuses of state power."
See also Constitutional Rights Project, Civil Liberties Organisation and Media Rights Agenda v Nigeria Comm. nos. 140/94, 141/94, 145/95 at para 29, condemning the ousting of courts' jurisdiction on the basis that this "create[s] a situation in which the judiciary can provide no check on the executive branch of the government."
[84] Mzikamanda "Constitutionalism and the Judiciary: A Perspective from Southern Africa", paper delivered at the Conference for Law Reform Agencies for Eastern and Southern Africa on "The Role of Law Reform in Constitutionalism, Rule of Law and Democratic Governance", Lilongwe, Malawi, 7-11 November 2011.
[85] Ibid.
[86] Article 16(1) and (5) of the SADC Treaty.
[87] Article 32 of the SADC Treaty. See also Ndlovu "Campbell v Republic of Zimbabwe: A moment of truth for the SADC Tribunal" 2011(1) SADC Law Journal 63 at 62.
[88] The need for amending the legal instruments before this result can be achieved lawfully has been noted already in May 2011 (Peterson "Southern African Governments Move to Rein in International Tribunal; Passing Judgment on Zimbabwe has Led to Political Backlash Against SADC Tribunal" (available at www. iareporter. com/ articles/ 20110522)). Nevertheless the irregular situation has not even been attempted to be regularised retrospectively.
[89] Ndlovu "Campbell v Republic of Zimbabwe: A moment of truth for the SADC Tribunal" 2011(1) SADC Law Journal 63 at 78.
[90] The legal framework peremptorily prescribes that the Tribunal shall hear all disputes arising from the Treaty and any instrument pursuant to it:
(a) Article 2, read with Article 14 and 15(1), of the Protocol on the Tribunal (which forms an integral part of the Treaty) provides that the tribunal shall function in accordance with the provisions of the Treaty and this Protocol.
(b) Article 16(1) of the Treaty in turn requires peremptorily that the Tribunal "shallbe constituted to ensure adherence to and the proper interpretation of the Treaty ... and subsidiary instruments and to adjudicate upon such disputes as may be referred to it" (emphasis added).
(c) Article 32 of the Treaty also requires peremptorily that "any dispute arising from the interpretation or application of this Treaty, the interpretation, application or validity of Protocols or other subsidiary instruments made under this Treaty, which cannot be settled amicably, shall be referred to the Tribunal" (emphasis added).
[91] Record p 158 para 39.
[92] Record pp 148-151 paras 15-23; Record p 277 lines 28-32.
[93] Record p 172 para 7, mandating "the Ministers of Justice/Attorneys-General to initiate the process aimed at amending the relevant SADC legal instruments".
[94] It goes without saying that even had any earnest attempt been made to regularise the impugned decision by amending SADC law (with retrospective effect, of course, to the extent that this would be lawful), this attempt would nevertheless still be assailable on all the other bases on which the applicants rely. Moreover, as the Commission has confirmed on numerous occasions, any statutory instrument (or amendment) purporting to authorise conduct which is prima facie in violation of the African Charter must be demonstrated to be Charter compliant by the State(s) concerned. The Summit's failure to introduce belatedly any measure purporting to seek to authorise an abrogation of the rule of law is accordingly an obvious acknowledgement of the impossibility of acquitting itself of this formidable burden.
[95] 1952 (2) SA 428 (A).
[96] 1952 (4) SA 769 (A).
[97] (2002) AHRLR 266 (ZwSC 2002).
[98] Id at para 23.
[99] Id at para 33, citing Attorney-General of New South Wales v Trethowan [1932] AC 526 (PC, Australia); Bribery Commissioners v Ranasinghe [1965] AC 172, [1963] 2 All ER 785 (PC, Ceylon); R v Mecure [1988] 1 SCR 234 (Supreme Court of Canada); and Re Manitoba Language Rights [1985] 1 SCR 721 (Supreme Court of Canada).
We would add, in the current context, Kesavananda Bharati v State of Kerala AIR 1973 SC 1461, and cases applying it. In Kesavananda Bharati the Supreme Court of India adopted the basic structures doctrine to deal with situations like the current one. The Court held that even though the Indian parliament had wide powers, it did not have the power to destroy or emasculate the basic elements or fundamental features of the constitution. It accordingly declared the attempt to do so unlawful. Applied to the current context, it is clear that the Tribunal is a fundamental feature of the SADC Treaty, which (as mentioned) serves as a constitution for SADC. Its destruction or evisceration is therefore objectionable.
[100] Comm. no. 129/94 at para 12.
[101] To date this has not been done. Despite the Summit's acknowledgement of the need to amend the legal framework (as is demonstrated by the Summit mandating "the Ministers of Justice/Attorneys-General to initiate the process aimed at amending the relevant SADC legal instruments": Record p 172 para 7), no amendment exists which purports to authorise the Summit to sever SADC's judicial arm. This is because the amendments contemplated and recommended by the Ministers are amendments seeking to give effect to the expert report's recommendations (Record pp 264-270). As mentioned, these recommendations are aimed at strengthening the Tribunal, not at abolishing or suspending the Tribunal.
[102] National Assembly v De Lille 1999 (4) SA 863 (SCA) at para 14, per Mahomed CJ.
[103] Record p 12 para 23.
[104] Record p 157 para 39.
[105] Record p 280 lines 19-23.
[106] Article 23 of the SADC Treaty.
[107] Record p 13 para 24.
[108] Record p 13 para 25.
[109] It has been described as "exemplary" (Gathii "The Under-appreciated Jurisprudence of Africa's Regional Trade Judiciaries" 2010(12) Oregon Review of International Law 245 at 282; "conform[ing] to international standards" (Shay "Fast Track to Collapse: How Zimbabwe's Fast-Track Land Reform Program Violates International Human Rights Protections to Property, Due Process, and Compensation" 2012(27) American University International Review 133 at 136); and "competent", "well-articulated" and to be "applaud[ed]" (Ndlovu "Campbell v Republic of Zimbabwe: A moment of truth for the SADC Tribunal" 2011(1) SADC Law Journal 63 at 79).
[110] Mzikamanda "Constitutionalism and the Judiciary: A Perspective from Southern Africa", paper delivered at the Conference for Law Reform Agencies for Eastern and Southern Africa on "The Role of Law Reform in Constitutionalism, Rule of Law and Democratic Governance", Lilongwe, Malawi, 7-11 November 2011.
[111] Peterson "Southern African Governments Move to Rein in International Tribunal; Passing Judgment on Zimbabwe has Led to Political Backlash Against SADC Tribunal" (available at www. iareporter. com/ articles /20110522).
[112] Ndlovu "Campbell v Republic of Zimbabwe: A moment of truth for the SADC Tribunal" 2011(1) SADC Law Journal 63 at 78.
[113] Record p 13 para 26. See too Record p 11 para 21, where the first applicant, Mr Luke Tembani, concludes:
"Instead of enabling the Tribunal and giving effect to its judgments, member States have sided with the violator, granting it effective immunity from the Tribunal's orders and allowing it to continue the measures held by the Tribunal to be in violation of international law with impunity."
[114] Record p 13 para 26.
[115] Peterson "Southern African Governments Move to Rein in International Tribunal; Passing Judgment on Zimbabwe has Led to Political Backlash Against SADC Tribunal" (available at www. iareporter. com/ articles /20110522).
[116] As the President of the Tribunal and three other senior members explained the situation (Record p 282 lines 5-9):
"a stratagem has always been devised to defer [the Summit's] consideration of [appropriate action against Zimbabwe for its non-compliance with the judgments of the Tribunal]. ... this time the new drastic action taken on political grounds which at a stroke does away with the intractable problem of taking action against Zimbabwe: the complete dissolution of the Tribunal in its present form".
[117] Record p 153 para 27; Record p 154 para 30.
[118] As four senior members of the SADC Tribunal demonstrated already at that stage, the decision was made in bad faith (Record p 278ff).
[119] Record p 151 para 24.
[120] Record pp 152-154 paras 25-30.
[121] Amnesty International, Comité Loosli Bachelard, Lawyers Committee for Human Rights, Association of Members of the Episcopal Conference of East Africa / Sudan Comm. nos. 48/90, 50/91, 52/91, 89/93 at para 52:
"According to the Commission's long-standing practice, in cases of human rights violations, the burden of proof rests on the government (See, ACHPR/59/91, ACHPR/60/91, ACHPR/64/91, ACHPR/87/93 ACHPR/101/93). If the government provides no evidence contradict an allegation of human rights allegation made against it, the Commission will take it as proven, or at the least probable or plausible."
See too Centre for Free Speech / Nigeria Comm. no. 206/97 at para 17 and the communications there referred to. The same approach is of course adopted also by similar bodies, e.g. the Human Rights Committee (see e.g. John Campbell v Jamaica(307/88) at para 6.3: "In the absence of any information from the State party, the Committee bases its decision on the facts provided by the author".)
[122] Record p 153 para 29.
[123] Media Rights Agenda v Nigeria supra at paras 68-69.
[124] Legal Resources Foundation v Zambia Comm. no. 211/98 (2001) AHRLR 84 (ACHPR 2001) at para 70:
"The Charter must be interpreted holistically and all clauses must reinforce each other. The purpose or effect of any limitation must also be examined, as the limitation of the right cannot be used to subvert rights already enjoyed. Justification, therefore, cannot be derived solely from popular will, as this cannot be used to limit the responsibilities of states parties in terms of the Charter."
[125] As the European Court of Human Rights confirmed in Philis v Greece (1991) at para 91.
[126] Zongwe "An Introduction to the Law of the Southern African Development Community" (February 2011, Globalex).
[127] Mzikamanda "Constitutionalism and the Judiciary: A Perspective from Southern Africa", paper delivered at the Conference for Law Reform Agencies for Eastern and Southern Africa on "The Role of Law Reform in Constitutionalism, Rule of Law and Democratic Governance", Lilongwe, Malawi, 7-11 November 2011.
[128] Cf Viljoen "Realisation of Human Rights in Africa through Inter-Governmental Institutions" (LLD Thesis, UP 1997) at 165.
[129] Attorney-General v Ryan [1980] AC 718 at 730, quoting Spackman v Plumstead District Board of Works (1885) 10 App. Cas. 229, 240.
[130] Ibid.
[131] As in Civil Liberties Organisation v Nigeria Comm. no. 101/93.
[132] Record p 6 para 3.
[133] Record p 16 para 33.
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