SPEECH BY JEREMY GAUNTLETT SC TO THE MIDDLE TEMPLE SOUTH AFRICA CONFERENCE, SEPTEMBER 23 2012
A COURT TOO FAR?
REGIONAL COURTS IN SOUTHERN AFRICA AND EUROPE
There are three ways to view the advent of international courts - ‘Community law', as some style it - in Europe and Southern Africa.
The first is suggested by the title for this session: a noble dream (in the phrase Nicola Lacey has so tellingly used in her biography of HLA Hart), but one which wakes to disillusion, or dysfunction, or both.
The second is Lacey's antithesis: nightmare. There are two variants of this.
The first is that projected in Southern Africa by Zimbabwe, and other countries which (as I shall describe) have flocked to its standard. This nightmare asserts that decisions of the region's international law court stand to trump its domestic courts, and worse: the ultimate effect of an international court with final jurisdiction over separate nation-states is to destroy their autonomy, as inevitably it dislodges the constitutional cornerstone of each. That is because (the nightmare is elaborate) the price paid is the loss of parliamentary sovereignty and the simultaneous subordination of the nation-state's own highest law and own highest court.
It is only two decades since Sir William Wade proposed a requiem in modern constitutional law for terms like prerogative and sovereignty. But what today's discussion highlights is that they are resurgent. Their adherents (certainly in Southern Africa) include those who stand to lose most from their demise, or at least attenuation. Their scholarship is necessarily nostalgic. They explicitly hark back to these words of Dicey:
"The principle of parliamentary sovereignty means neither more nor less than this, namely, that Parliament thus defined, has, under the English constitution, the right to make or unmake any law whatever, and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament".[1]
Of course for the developed notion of the rule of law, the first proposition is now anathema - as well as anachronism. Parliament, under the justiciable constitutions of countries in my region, is in principle not free ‘to make or unmake any law whatever', in the sense Dicey intimates. But it is the second proposition on which the focus today should fall: that there is no sense in which a domestic law can be trumped.
In Southern Africa, in quite a dramatic way in recent weeks, the nightmare has won through in a second form and the dream dispelled. Last month the Summit of the Southern African Development Community (SADC) took place in Maputo. The Summit - a treaty organ comprising the heads of state of the 14 members of SADC - issued a communiqué announcing that it intended dismantling the current SADC Tribunal. This the sequel to the Summit's suspension of the Tribunal last year.
In its place will be put a new Tribunal, permitting no individuals access. The Tribunal will be stripped of its current jurisdiction which allows that. It will become an adjudicator of inter-state disputes. In the past 20 years these have comprised a dispute first between South Africa and Namibia, then Angola and Namibia, over the emergence of sandbanks in the estuaries of the meandering rivers which mark both borders; a similar squabble between Botswana and Namibia over a less evanescent but equally minute island in the middle of a similar river-border; and now a dispute whether by colonial treaty Malawi truly owns Lake Malawi (not one yet evinced by the phlegmatic inhabitants of the latter).
No international human rights issues in any of these instances. No access to the SADC Tribunal by any individual in any member state, in any of these circumstances. Those who drew the colonial borders in Bismarck's music room on the Wilhelmstrasse at the Congress of Berlin in 1848 would view such a body with equanimity, familiarity and even pride. Plus ca change....
The road to this terminus in Maputo for regional human rights and international law needs explanation.
Did the setting up of the SADC institutions mimic those for the EU, the visitor will first ask? Not quite. Lord Steyn describes the effect of the United Kingdom entering into the European Community in 1973 as achieving a divided concept of legal sovereignty:
"The European Communities Act 1972 is a truly fundamental law. Community law is a higher legal order than domestic law and within its sphere the Luxembourg court is the supreme judicial authority in our country. That was vividly illustrated in 1991 by the second Factortame case.[2] There was a clash between community law and a later Act of the United Kingdom Parliament. The House of Lords granted an injunction to forbid a minister from obeying an Act of Parliament. The Act was disapplied. This decision sent seismic shockwaves through our legal system".[3]
As we shall see, the seismic waves for SADC came after much the same period, and in much the same way, but with different and catastrophic results.
On 17 August 1992, the heads of state of the 14 members of SADC[4] signed the SADC treaty. This itself provided (in Article 16 read with Article 9(1)(g)) for the setting up of the Tribunal. All the member states signed and ratified it.
Crucially for the dispute which followed, the Treaty also provided (Article 16(2)) that the composition, powers, functions, procedures and other related matters governing the Tribunal shall be as prescribed in a protocol. Later Article 16 was amended to make it clear that this protocol, the Protocol on the SADC Tribunal, was an integral part of the original Treaty, requiring no further ratification.
The amendment, all commentators to my knowledge (bar those writing in recent aid of Zimbabwe) accept, was purely declaratory, effecting no substantive change. Zimbabwe - although itself appointing a judge as a member of the Tribunal and repeatedly appearing before it, until awards were made against it - has come to challenge the Tribunal and its awards as a nullity, on the basis that it itself has not ratified the Protocol on the Tribunal.
Zimbabwe's legal contentions have been resoundingly rejected, most notably by an independent legal review commissioned by SADC and carried out by Cambridge's Dr Bartells. But through a campaign of incremental mobilisation of support for its antipathy for the Tribunal, it has brought home to other leaders in the region the implications of Tribunal rulings being made progressively against them. The result is the Maputo communiqué by the Summit, stripping the Tribunal of its human rights jurisdiction.
Let me give you three examples of the kind of work the SADC Tribunal has done in the short period of three years in which it effectively functioned. They serve to explain what turned Zimbabwe from a member state supporting the Tribunal to one asserting that it is a chimera and its rulings mere vapour.
The first concerns a man called Luke Tembani, the first black Zimbabwean ever to obtain freehold title to agricultural land in that country. He did that in 1980, at independence. He built up a considerable and successful farming enterprise, employing many, and with enough of a sense of community as to build a school on his farm providing education for over 300 children in the district. His misfortune was to borrow some money from Zimbabwe's Land Bank.
He was troubled, but not initially, when the onset of hyperinflation from 2000 saw monthly statements in which the interest on his debt achieved absurd proportions. Shortly the interest exceeded the (considerable) market capital value of his thriving farm. He tried to negotiate, but the Land Bank's calculator was inexorable. (Behind the calculator, it seems, there was a roving eye which had fallen on his farm). What was invoked against him was a statutory provision very similar to the one which has been struck down by the South African Constitutional Court.
The offensive provision was that the Land Bank was given the power by statute to determine in its backrooms an amount said to be owing, and then have this certified as a judgment debt. Under such measures, the courts are completely bypassed. Invoking the right to access to courts protected under the SADC Treaty, it was possible to obtain an order from the Tribunal that the provision was inconsistent with Zimbabwe's Treaty obligations.
A second case concerned a Zimbabwean human rights non-governmental organisation, which painstakingly assembled a group of over 40 litigants. They had succeeded in obtaining final judgments for damages from Zimbabwean courts, but the judgments were simply ignored by the government of Zimbabwe. The claims arose from assaults, and even torture, by members of the security forces of Zimbabwe.
The government sought to justify its failure to honour the judgments by invoking before the Tribunal the contention that Zimbabwe lacked the means to meet them. The Tribunal would have no truck with this. It granted an order holding the government of Zimbabwe in this respect too to be in breach of its obligations under the Treaty to provide access to justice for its citizens. The Tribunal ordered the government of Zimbabwe not only to honour its own judgments; it set in place a mechanism to have the awards revalorised so as to address the delay and the ravages of inflation.
The third instance is the best known, the ‘Campbell case'. It concerned first one, then ultimately 78, commercial farmers. They were Zimbabwean citizens, nearly all having obtained their farms on the open market after independence in 1980, many of them doing so on "certificates of no interest" by the Zimbabwean government. In 2005 amendment 17 to the Constitution of Zimbabwe was adopted.
It effected a radical change to the property clause in the Bill of Rights authorising the government Zimbabwe by ministerial decree to gazette such land as it wished to pass by that simple act from the private owner to the State for further distribution as it wished. It contained for good measure an ouster clause: any challenge to the provision or any act of execution under it was ousted from adjudication by any court. (Disturbingly, exactly that provision has in recent weeks been transferred to the new draft constitution for Zimbabwe. Like the Bourbon kings, Zimbabwe's constitution-writers have learnt nothing and forgotten nothing.)
The case takes its name from the lead farmer, Michael Campbell.[5] Halfway through the rather drawn-out proceedings, he and his wife - both in their late 70's - and his son-in-law were abducted from their farm. They were beaten to such an extent that the son-in-law nearly lost his eye while Michael Campbell himself sustained head injuries from which last year he died. Into the mouth of his wife was placed a burning ember and she was required to sign a waiver of a claim then proceeding before the Tribunal.
Whether she did so is uncertain, because at some stage of her beatings, she lapsed into unconsciousness and the government of Zimbabwe in any event seems to have thought better of tendering it in evidence. Despite this, the litigation continued. Members of the family appeared, one in a wheelchair and with his head bandaged. The merits stage of the argument was reached. The government of Zimbabwe's legal team, which had procured a number of postponements, tried for one more.
The next senior judge, Dr Alberto Luis Mondlane - scion of a famous Mozambican revolutionary family - said, very quietly, in response to the application: "We are trying to build a house of justice in this region". The Tribunal (presided over by the Chief Justice of Mauritius) directed that the case continue. The Zimbabwean High Commissioner in Windhoek directed the legal team to withdraw. The court sat in silence as they did so, thereafter continuing with the proceedings.
A month or two later the Tribunal delivered an award which is available on the SADC Tribunal's website.[6] It sustained the attack on the land seizure measure on all three bases argued. It held that the measures were arbitrary and affronted the rule of law, in the purported ouster of access to the courts. It held secondly that the measures were arbitrary in providing for a mere seizure, with no justiciable measure of compensation at all.
And thirdly, it held that the measures constituted discrimination in conflict with the requirements of the Treaty. This was because, although the race of those affected was never mentioned in the privative instruments, the seizure was only from people who happened to be white, and not because they were absentee or bad farmers, or because their landholdings were by some measure excessive, or by any other impartial criterion.
Concomitantly the measures benefitted only a class of political chefs, as they are known in Central Africa: the well-connected, the WaBenzi as East Africans express it in Swahili, by reference to the desired mode of transport. And so it happened that a courtroom containing predominantly white litigants who had said privately that they did not expect justice in Africa, but still hoped against reason for it, found it at the dispassionate and adept hands of a team of senior black judges from across the region.[7]
The government of Zimbabwe at first ignored the Tribunal's award. Then successively the Minister of Justice and President attacked it. They were followed, unusually, by the Deputy Chief Justice of Zimbabwe taking the occasion of the official opening of the courts in 2009 - a ceremonial occasion usually confined to ritualistic exhortations to judicial officers to work harder and practitioners to speak and charge less - to deny the jurisdiction of the Tribunal.
This to an audience of magistrates and judges, and in the knowledge that the issue was likely to come not only to them but to him, too, in due course. It may be noted that every member of Zimbabwe's Supreme Court (following the departure last year of the last survivor of the Gubbay court, Wilson Sandura, who to his credit refused the offer) has accepted at least one confiscated farm from the government (with an all-terrain car in addition to the de rigeur Mercedes), yet continues to sit in land cases.
The Protocol on the Tribunal provides for the registration of its awards by domestic courts, so as to make them executable under local law. We proceeded with such an application. The allocated High Court judge (Patel J) just happened to be a former Attorney-General of Zimbabwe and thus a member of Cabinet, who as a member of the executive had been directly engaged in Zimbabwe's dealings with SADC on jurisdictional issues.
He considered this ambidexterity not to disqualify him. He disallowed the (usually very pro forma) interlocutory application for our ad hoc recognition as counsel in Zimbabwe for the purposes of the case - although such application had been granted to us many times in other matters before. Able Zimbabwean counsel however stepped into the breach, and delivered the argument which had been prepared. Interestingly, Patel J rejected the contention by the Zimbabwean government that the Tribunal had no jurisdiction over it.
Less surprisingly he dismissed the application for registration in Zimbabwe. He contrived to do so on the grounds that that would be "contrary to public policy" - because it would contradict what the domestic law and courts had authorised.[8] That, of course, is Kafkaesque: the whole point of going to the International Tribunal was that the laws and court orders of the country had authorised that which was in conflict with Zimbabwe's international law obligation.
We pressed on. To the consternation of the government of Zimbabwe, we applied for registration of the Tribunal award in the High Court in Pretoria. The Zimbabwe government has assets in South Africa against which the costs order made by the Tribunal - given the conduct of Zimbabwe before it - could be executed. The Protocol authorises enforcement in all member states. Again, the government of Zimbabwe resorted to withdrawal from those proceedings too. But we said that it was too late, because it had already entered opposition, without any associated step of a special plea regarding jurisdiction, and by so doing, had consented to jurisdiction in South Africa.
In any event, we showed that in terms of Article 32 of the Protocol, jurisdiction existed to obtain such an order against any member state of SADC in another. The High Court upheld us. We proceeded to attach Zimbabwean government property in South Africa. Regrettably, the one executable asset for which we had hoped, an aircraft registered directly in the name of the government of Zimbabwe and on a state visit to the Jimmy Choo shop in Sandton, is yet to materialise.
An appeal by Zimbabwe against the Pretoria High Court order enforcing the award in South Africa was heard two weeks ago in the Supreme Court of Appeal in Bloemfontein. The outcome is awaited, and accordingly I should not say anything further about that.
We return to Maputo, last month, to the heads of state gathered at the SADC Summit. Their conclave took place on the day of the deaths at the Marikana mine in South Africa, which has served to bury the news and avert the deserved international outcry.
The preceding 18 months had first seen SADC's Council of Ministers - its ministers of justice and attorneys-general - at Zimbabwe's prodding in effect suspend the operation of the Tribunal, at least as regards taking new cases. But that was not enough for Zimbabwe, because cases against it had already been lodged and were up for listing. The initial compromise was the commissioning of the independent review by Dr Bartells, to which I have referred. This reported in overwhelmingly favourable terms, as regards the Tribunal's jurisdiction (particularly its international human rights jurisdiction in respect of all individuals in SADC states) and functioning.
This was clearly not the desired answer, at least so far as Zimbabwe was concerned. The Council of Ministers, nonetheless, did not recommend to Summit the abolition of the crucial human rights jurisdiction. Yet the Summit overruled the Council, and that is why this result came to pass in Maputo. Why?
I venture two answers. One owes more to The Prince than a fraying allegiance to Dicey. This is realpolitik. It must have been explained to a country such as Botswana (or perhaps the other shoe dropped) that its manner of treatment of the San people - thanks to the rather discredited writings of Sir Lourens van der Post still better known by the rather derogatory term, ‘Bushmen of the Kalahari' - would be set to be challenged, soon, before the Tribunal.
Botswana's own courts have upheld its government's actions; it is open to question whether those actions would pass muster in terms of Botswana's human rights obligations under the Treaty. Or take Malawi: like Uganda (not a SADC member) entrenched criminal law provisions and discrimination enforced, often brutally, against gay people. Or Rwanda. Or South Africa itself, justly proud of a flagship constitution, but with a recurrent nostalgia for old ways of controlling the media and the legal profession, or subjecting rural women, bearing the greatest burdens of poverty and marginalisation, to a regime of customary law and traditional courts. These are just a few illustrative examples.
All power, George Orwell paraphrasing Lord Acton, is delightful: absolute power is absolutely delightful. Where countries function under own constitutions, with own courts, selected by own processes, why would leaders want to subject themselves to any further and less manageable constraint? What part of this, Machiavelli would ask, do we not follow?
The second answer is more rooted in legal reasoning. Lord Steyn has suggested that the European Communities Act 1972 ‘is a truly fundamental law': Community law ‘is a higher legal order than domestic law and within its sphere the Luxembourg court is the supreme judicial authority in our country'.[9] Perhaps Tim Dutton will indicate whether he thinks that is accurate. For me, in relation to SADC, it is not - and indeed is a false argument seized upon to rally opposition to the Tribunal.
You see, it is said, for this mess of international potage you have sold out (sellout is the ultimate term of opprobrium in the region) on sovereignty. That you cannot do: the member state's constitution is the highest law. If it permits involuntary polygamy or circumcision at customary law, or active discrimination against or prosecution of homosexuals, or for that matter, genocide, there can in logic be no higher recourse.
Why Lord Steyn's hierarchy is false for SADC is this. The Treaty and Protocol create no appellate court. Their first premise is the exhaustion of any remedy in domestic law before the domestic court. Their second premise entails the inquiry whether the international-law obligation created for a member state in favour of individuals resident within it gives another remedy. That is not at the level of municipal law. It is not immediately exigible in the domestic court. It arises only on award by the Tribunal.
At this critical juncture the SADC Treaty learnt from the long litany of failures in enforcing international law obligations. How is the international-law pronouncement by the Tribunal at its seat in Windhoek to make an iota of practical difference in Chinhoyi or Lilongwe or the Kgalagadi Pans?
The Treaty firstly makes the Protocol an integral part of the Treaty itself (defeating in anticipation a drawing back by a member state, as Zimbabwe has done, from ratification of the Protocol). It secondly creates a mechanism (in Article 32 of the Protocol) for the registration in member states of awards, as if they were ordinary foreign judgments.
And so the international law award is not left to languish. It is domesticated. Its breach gives rise not only to the prospect of international sanctions against the member state by the Summit (which Art 33 of the Treaty read with Art 32 of the Protocol authorises), but also to the consequences which defiance of any domestic court order should attract, in any country where the domestic courts are truly courts and their judges truly judges.
This is not to make the SADC Tribunal ‘the highest judicial authority'. It is a different judicial authority. Its jurisdiction only exists in international law. It accepts as the premise for its own authority that in the domestic law of the member state a particular statute or executive action is lawful. But it asserts and enforces a different competence, one to which each member state bent its knee, pre-emptively and for the life of its membership of the community of states, on its ratification of the Treaty. It simultaneously agreed (through the Protocol incorporated via Article 16 of the Treaty) to the mechanism (Article 32 of the Protocol) which permits registration, and hence domestication, of the international award.
This is, of course, the particular nightmare of the rogue state. It may take great care, as Zimbabwe has done, to amendments (21, at last count) to its Lancaster House Constitution of 1980, and to the Bill of Rights itself. Both to emasculate it and then to prohibit court challenges to the emasculation. The rogue state may be even more fastidious in its selection of its own judges: quis custodiet custodes ipsos, after all? (To which, Machiavelli, his patience with our naivete now running out, would say - read, if nothing else, the title of my book. Or - if he were prescient - read Bush v Gore).
Hence the road to Maputo. A great triumph for our region's rogue state. A great setback for the rule of law, and for international human rights. The SADC Treaty, the Protocol on the Tribunal and the Tribunal - Justice Mondlane's ‘house of justice in the region' - are all eviscerated. Impunity is entrenched.
The Tribunal is overwhelmingly supported by donor aid, particularly from the member states of the EU. There is no reason why this should continue, for it expensively to adjudicate title to sandbanks in rivers, or tiffs over uninhabited atolls, or for its (now more carefully chosen) members to decorate international law gatherings.
Many of us in this room have lived through sanctions, used ultimately and cumulatively to great effect on the legal orders which once prevailed across several countries in the region. I would suggest that this Conference express itself on what has happened in Maputo, and call for the suspension of all funding of the Tribunal, and other organs of SADC, until once again individuals are able to access it.
Only then might Community law promise anything for a region of deep inequality, and uneven and only partial constitutionalism. The Tribunal, as a consequence of the Summit's decision at Maputo to reject the Council's recommendation, is a travesty. The last President of the Tribunal, Chief Justice Ariranga Pillay of Mauritius, said this after the Maputo Summit himself. There is no reason for bodies, people and states concerned about the rule of law, and the rights of some of the poorest and most vulnerable people in the world, to be parties to the continued subventing of it.
Only if the jurisdiction of the Tribunal is restored might the SADC Treaty, like the Treaty of Rome in Lord Denning MR's arresting metaphor, be ‘like an incoming tide. It flows into the estuaries and up the rivers. It cannot be held back....'[10].
Jeremy Gauntlett
SC BA LLB (Stell) BCL (Oxon)
Member of the Cape and Johannesburg Bars, and of Brick Court Chambers, London
Bencher of the Middle Temple
September 2012
Footnotes:
[1] Dicey Introduction to the Law of the Constitution (8th ed) 3.
[2] Ex parte Secretary of State: R v Factortame Ltd (2) [1991] 1 AC 603.
[3] Johan Steyn Democracy through Law: Selected Speeches and Judgments (2004) xvi.
[4] Angola, Botswana, DRC, Lesotho, Malawi, Mauritius, Mozambique, Namibia, Seychelles, South Africa, Swaziland, Tanzania, Zambia and Zimbabwe.
[5] An award-winning (shortlisted at Cannes and for a documentary Oscar) channel 4 documentary, Mugabe and the White African, has been made about the Campbell family and the SADC litigation, and is also available through Amazon.
[6] http://sadc-tribunal.org./ See too http://www/chr.up.ac.za/
[7] The panel comprised Pillay P (Mauritius), Motambo J (Zambia), Mondlane J (Mozambique), Kambovo J (Angola) and Tshosa J (Botswana).
[8] Gramara (Pvt) Ltd and Colin Bailie Cloete v Government of the Republic of Zimbabwe and Attorney-General of Zimbabwe Case no. HC33/2009 (24 November 2009) unreported.
[9] Johan Steyn op cit xvi
[10] Bulmer Limited v Bollinger [1974] Ch 401 at 418.
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