SADC intends to bar individuals and juristic bodies within member states from filing cases at the tribunal if the Heads of State and Governments approve the new protocol this weekend.
“The reopening of the tribunal as an interstate court will impact negatively on the rights of SADC citizens to access justice and to effective legal remedies to disputes,” said Makanatsa Makonese Executive SecretarySADC Lawyers’ Association in an emailed response.
The SADC Lawyers’ Association also noted that the proposed limitations on the powers of the tribunal will impact on the regional integration agenda of SADC as well as dampen investor confidence in the region.
“We therefore hope that the SADC Heads of State and Government will reconsider their decision to bar SADC citizens and other non-state entities from accessing the tribunal as a tribunal that is not accessible to individuals will lose most of its utility to citizens,” Makonese said.
SADC’s decision to shut access to justice for its 277 million citizens follows the disbandment of the tribunal at the 32nd SADC Summit in Mozambique in August 2012 and atwo-year review of the protocol on the Tribunal that’s seems to have significantly changed its operations.
SADC adopted the controversial decision following complaints by Zimbabwe over the previous tribunal’s rulings that sought to nullify the revolutionary land reform programme launched by the Government at the turn of the millennium.
Late Zimbabwean commercial Farmer Mike Campbell led a group of 79 other farmerswho sued the Zimbabwe government at the Tribunal seeking to reverse the agrarian reforms that led the Zimbabwe government to forcefully acquire their farms for redistribution to the landless Zimbabweans.
Zimbabwe’s President, Robert Mugabeis expected to take over the leadership of SADCat this weekend’s summit from his Malawian counterpart, Professor Arthur Peter Mutharika at the resort town of Victoria Falls in Zimbabwe.
“What it means is that its mandate has been stripped. The tribunal will only deal with cases between member states. It’s a protectionist move that is a gross disservice to the entire SADC populace,” a Judge of the tribunal who did not want to be named.
Malawi’s Minister of Foreign Affairs and International Cooperation Dr George Chaponda, who is the outgoing chairperson of the SADC Council of ministers, touts the review of the new protocol on the tribunal as his country’s achievement during its tenure at the helm.
“My Government pledges its commitment to provide ou runwavering support…to ensuring that SADC delivers on its mandate,” Chaponda
The new tribunal’s power will now be confined only to advisory interpretation of the SADC Treaty and protocols.
According to a submission regarding amendments to the SADC tribunal protocol presented by the Southern Africa Litigation Centre (SALC), International Commission of Jurists and SADC Lawyers Association (SADC LA), the SADC Tribunal’s denial of individual access would rank as a bizarre exception among modern regional and sub-regional courts.
The submission was provided to SADC officials and member states for their consideration during deliberations around the review of the SADC Tribunal Protocol.
“(We understand that) that certain member states are lobbying for amendment that individual access be proscribed, it must be emphasised that such course of action would jeopardise the entire system by which SADC functions, it would also violate the very principles and objectives that SADC is intended to realise,” reads the submission in part.
The organisations called for the current access provisions in the SADC Tribunal
Protocol to be retained adding that they should only be restricted by the requirement to exhaust all available remedies under domestic jurisdictions.
“Access to justice at the regional or international level should not be seen as a threat to national sovereignty or as an infringement on the judicial authority of superior domestic courts,” they said.-(Collins Mtika reporting for Nyasa Times at SADC summit, Victoria Falls, Zimbabwe)Follow and Subscribe Nyasa TV :