WHY WAS THE SADC JUDICIAL BODY'S LIFE SO SHORT
A. E. KONEVA, Postgraduate Student of RUDN University
A. M. SOLNTSEV, Candidate of Law, Peoples ' Friendship University of Russia
Keywords: regional integration associations of Africa, SADC, SADC Tribunal, international courts, human rights, international law
Creation and start of work in 2005 The establishment of the Southern African Development Community (SADC), which comprises 15 southern African States*, was seen by the international community as a positive contribution to the rule of law. However, after only 5 years of existence, this judicial body ceased its activities by the decision of the same 15 South African States.
SADC was created as a result of the transformation of the Southern African Development Coordination Conference into an international intergovernmental organization in 1992. In accordance with the SADC Founding Treaty of 1992, the main goal of the Community is to strengthen economic, political and security cooperation in the region. In particular, the Community strives to improve the economic well-being of its member countries, integrate their economies more, overcome poverty and raise the standard of living of the population. It follows from the Treaty that the protection and promotion of human rights is not a core activity for SADC. However, according to Article 4, the SADC's organizational principles include respect for human rights, democratic governance and the rule of law. It is significant that the provisions of this article were invoked by the SADC heads of State when deciding to suspend Madagascar's membership following the 2009 coup d'etat.1 This fact certainly underlines the importance of the principle of human rights protection for the Community.
SADC TRIBUNAL: FIRST STEPS
Along with other African integration associations, SADC has also established a judicial body, the Tribunal.2 It should be emphasized that the courts of regional associations, being institutional bodies, carry out activities to ensure the rule of law within the framework of the process of economic integration of States. Today, effective dispute resolution is one of the key aspects of governance in the implementation of economic integration.3
In 2000, the Heads of State and Government of the Community adopted the Protocol on the SADC Tribunal and Rules of Procedure 4, which clarified its powers. Thus, the SADC Tribunal can interpret the provisions of the Constituent Treaty and its Protocols. Moreover, the Court's jurisdiction extended to all matters governed by other Community agreements recognizing the jurisdiction of the Tribunal (article 14 of the Protocol). The Court could deal with disputes between States and individuals or legal entities, provided that all possible domestic remedies were exhausted.
The SADC Tribunal became operational after the inauguration of the judges in Windhoek, Namibia, on 18 November 2005. Violations of specific human rights were not mentioned in the constituent documents, but the judges of the Tribunal decided that this was within the competence of the Court, based on the interpretation of the provisions of the Constituent Treaty and its Protocol.
Since its inception, the Tribunal has been criticized for exceeding its mandate to deal with cases of human rights violations, since it was created primarily to resolve economic and political disputes within the Community, rather than disputes about human rights violations. 5
Moreover, the Tribunal did not have a clear mechanism for enforcing its decisions. According to article 24 of the Protocol, the Tribunal's decisions are final and binding. States are obliged to give them legal force in their national legal systems (article 32). It was assumed that the summit of the heads of member states-
The article is published as part of a grant from the RGNF (project N 12 - 33 - 01428).
* SADC members-Angola, Botswana, Democratic Republic of the Congo, Lesotho, Madagascar, Malawi, Mauritius, Mozambique, Namibia, Seychelles, South Africa, Swaziland, Tanzania, Zambia, Zimbabwe.
SADC can now intervene in the event of non-compliance with the Tribunal's decisions (Article 33). The Tribunal was therefore described as a "tiger without teeth" .6
If we draw a parallel with the judicial authorities of other integration associations in Africa and their competence in resolving disputes on human rights violations, we will find that, for example, the Additional Protocol amending the Protocol on the ECOWAS Court of Justice*, adopted in 2005, gives it jurisdiction to deal with cases related to human rights violations in the member States of this Body. communities. Consequently, it can be concluded that the SADC Tribunal has a weaker position in this regard, since the competence to resolve human rights disputes was not clearly established in the Community documents.
However, the SADC Tribunal has dealt with a number of disputes related to the protection of human rights. This ultimately led to the de facto suspension of its activities in 2010 at the SADC summit in Windhoek. In August 2012, the SADC Summit in Luanda, Angola, decided that the Tribunal's mandate should be limited to interpreting the SADC Founding Treaty and protocols relating to disputes between member States of the Community.
"CAMPBELL VS. ZIMBABWE"
In this connection, it seems appropriate to state the case of Mike Campbell v. Zimbabwe, 7 which was the reason for limiting the Tribunal's jurisdiction.
Land rights in Zimbabwe (formerly Southern Rhodesia until 1980) have been a subject of political controversy and regional concern in that country since the State's independence in 1980.
This is due to the fact that the distribution of land in Zimbabwe was extremely uneven - most of the fertile land belonged to the white population.
Meanwhile, this issue was discussed before the declaration of independence. Thus, the 1979 Agreement on Ceasefire and Independence of Rhodesia, signed in London at Lancaster House, stipulated that land redistribution should be carried out on the basis of voluntary purchase and sale at full market price. At the same time, the UK expressed its readiness to partially cover the costs of the reform.
Subsequently, the Government of Zimbabwe launched a land reform aimed at equalizing the distribution of land between the historically disenfranchised indigenous population and the white minority.9
In 1990, one of the clauses of the 1979 Agreement prohibiting the confiscation of white-owned farms expired. In 1992, the Land Acquisition Act legitimized measures for forced land acquisition for resettlement purposes, which essentially limited the constitutional right of ownership of land, but were recognized by the Supreme Court of Zimbabwe as constitutionally compliant.
In 1997, the British Government waived its obligations to pay compensation for the confiscated land.
Zimbabwe's President Robert Mugabe, seeking support in the run-up to the 2000 presidential election, promised to speed up land reform to help veterans of the independence struggle acquire land.10 With this support, veterans began to occupy farms belonging to the white community.11
The Zimbabwean Parliament supported their actions by passing the Land Acquisition Act of 2000 and the Constitutional Amendment Act of 2000, which released the Zimbabwean leadership from the obligation to pay full compensation and launched an accelerated resettlement process.12 In making resettlement payments, however, the Government did not compensate white farmers for the real value of the land. At the same time, the Zimbabwean government said that the UK still has an obligation to pay compensation for the land.
Against this background, in 2001 The Supreme Court of Zimbabwe for the first time considered a case concerning land grabbing, finding that the Government systematically failed to comply with the law and the land grabbing was illegal.13 In response, the Government took the initiative to pass constitutional amendments that removed the ability of white farmers to challenge their rights in court, which undermined the role of the Supreme Court and limited the competence of the courts.
This situation was the subject of the SADC Tribunal's review in the case initiated by Michael Campbell , a white farmer whose land was alienated as part of the ongoing land reform. Campbell's lawsuit was joined by other white farmers who were also illegally evicted from their land and were not satisfied in local courts.
The complaint was based on a violation of the right to due process and racial discrimination. The Tribunal concluded that it had jurisdiction to hear the case because the dispute concerned "human rights, democracy and the rule of law", which are binding principles for SADC member States.
In 2007 The Tribunal decided to apply interim measures** in respect of Zimbabwe, except-
* ECOWAS-Economic Community of West African Countries. Established in 1975, it has 15 Member States.
** Provisional measures may be taken by the international court of Justice pending a final decision if a State party to the dispute has taken or threatens to take actions that constitute a serious violation of international law.
it is repugnant to take any steps that directly or indirectly prevent farmers from using their land. In its final judgment in 2008, the Tribunal ruled that Mr Campbell and other landowners were denied the right to a fair trial in their home country. Furthermore, it held that the method of implementation of the Zimbabwe Government reform was discriminatory, as it infringed on the rights of white farmers. The Tribunal recognized the plaintiffs ' right to fair compensation for alienated lands14.
Meanwhile, Mugabe's land reform and its results have been the subject of wide discussion by both the world community and academic circles. Russian Africanists also pay considerable attention to this issue. Thus, in their writings, V. G. Shubin and A.D. Khamatshin hold the opinion that land reform in Zimbabwe helped strengthen the state's agricultural sector and eliminated racial inequality in land ownership - "...a new agricultural structure appeared with a much greater variety in the size of farms and farming systems"15. Resettled African farmers are able to develop their own agricultural systems. maintain production at the same level as the previous landowners. At the same time, white farmers continue to "manage" their land, and some occupy key positions in the agricultural trade.
THE TRIBUNAL'S DECISION AND INTERNATIONAL RESPONSE
The decision was not supported by Zimbabwe. Following the decision, the Minister of Justice, Patrick Chinamasa, informed the Tribunal in writing that he did not consider the decision legitimate, as the Tribunal did not have the appropriate jurisdiction. This is despite the fact that at the first stages of consideration of the case, the representative of the State declared that Zimbabwe recognized the jurisdiction of the Tribunal. Zimbabwe's Supreme Court also refused to legitimize the Tribunal's decision. Otherwise, it would undermine the authority of the Supreme Court, which had previously decided otherwise in the case, and violate the Constitution of Zimbabwe.
The plaintiffs appealed to the Tribunal again in an attempt to urge the State to comply with the decision. In response, Minister P. Chinamasa made a series of visits to SADC States in an attempt to find support for his position among colleagues and suspend the SADC Tribunal. 16
The 2010 summit of Heads of State of the Community in Windhoek decided to review the role and functions of the Tribunal. In view of this procedure, the Tribunal had to suspend its activities.
It is noteworthy that the SADC Secretariat has asked a British legal scholar, Lorand Bartels, to conduct an independent analysis of the Tribunal's activities and powers. In April 2011 It submitted its report17, in which it confirmed the validity of the Tribunal's powers and stated that the decision to suspend the Court's activities constituted a violation of the international obligations of the Member States of the Community18.
In this regard, it should be noted that, in our opinion, the choice of L. Bartels as an expert is somewhat doubtful, since he is a citizen of the state that is involved in this conflict.
At the SADC summit in 2011 in Sandton, South Africa, it was decided to continue the process of reviewing the Tribunal's activities. The Ministers of Justice and Attorneys General of the member States of the Community were instructed to prepare a report on the Tribunal and its functions.
Finally, the 2012 SADC summit in Luanda, Angola, adopted a resolution stating that a new protocol for the SADC Tribunal should be adopted. Moreover, the resolution stated that its future activities should be limited to the interpretation of the SADC Founding Treaty and its Protocols in the settlement of disputes between Member States.
Such a decision could mean the practical termination of the Tribunal's activities, since all cases considered by it were disputes between individuals and legal entities, or between the State and the organization itself.19
Meanwhile, the view is expressed that two SADC member States (South Africa and Botswana) had a real opportunity to resist Zimbabwe's attempts to persuade SADC members to disband the Tribunal and thereby prevent the decision to suspend its activities.20
Despite its commitment to the rule of law and the protection of human rights, South Africa did not oppose the idea of effectively closing the Tribunal at the SADC summit in Luanda. This may have been due to the fact that South Africa sought to enlist the support of Zimbabwe and other partner States in promoting the Minister of the Interior of South Africa to the post of Chairman of the African Union (AU) Commission.
Botswana, a State that has advocated the need to comply with international obligations, did not speak out against discussing this issue at the SADC summit. In passing, Botswana also objected to the AU's decision to ignore the International Criminal Court's warrant for the arrest and extradition of Sudanese President Omar al-Bashir.21
In our view, there remains hope that the current situation can still be resolved, and the SADC Tribunal will resume its work. Complaint from two Zimbabwean farmers, Luke Tembani and Ben Frith22, already filed with the Pan-African authority
- To the African Commission on Human and Peoples ' Rights (hereinafter referred to as the ACHRR)23-opens up a new perspective in this regard 24.
The ACHRC took up the case that the decision of the SADC Heads of State to terminate the Tribunal violates the provisions of the 1981 African Charter on Human and Peoples ' Rights. Each of the 15 SADC member States is a defendant in the case. This complaint is a rare case where individuals have applied to an international body to recognize the responsibility of a number of States.
The complainants have already applied to the SADC Tribunal, which has upheld their claims. In the new complaint, they stated that the consideration of their case by the ACHRC gave them hope that the Tribunal's decision would be implemented.
South Africa's local judicial authorities have considered complaints from some farmers deprived of their land in Zimbabwe about the implementation of the SADC Tribunal's order to pay compensation to the Zimbabwean authorities and foreclose on Zimbabwean property located in South Africa. The South African Constitutional Court ruled that, despite the termination of the SADC Tribunal, its decisions are enforceable, and upheld the Regional court's decision to foreclose on Zimbabwe's real estate.25
It is noteworthy that other interested parties - the non-governmental organizations Southern African Litigation Centre (SALC) and Pan African Lawyers Union (PALU) - also made attempts to challenge the decision to dissolve the Tribunal. They applied to the African Court of Human and Peoples ' Rights for an opinion on the legitimacy of the dissolution process.
These NGOs believed that, despite the non-binding nature of such a conclusion, SADC authorities would take it into account, since, as a regional integration association, SADC should strive to coordinate its policies with the African Union. This commitment is derived from Article 3 (1) of the AU Founding Act, which states that its objectives are to coordinate and harmonize policies between existing and future regional economic communities in order to progressively achieve the Union's objectives, which also include promoting cooperation and maintaining and protecting human and peoples ' rights on the continent.
However, it should be borne in mind that the African Court of Human and Peoples 'Rights should refrain from issuing an opinion if the Commission on Human and Peoples' Rights accepts a complaint on a similar issue.
Thus, from the point of view of international law, it can be concluded that by deciding to dissolve the Tribunal, the 15 SADC members undermined the progress made in the process of ensuring the rule of law and protecting the interests of their citizens from the arbitrariness of the judiciary.
The arguments of the Zimbabwean leadership that the Tribunal's decision is not legitimate, since it threatens the authority of the Supreme Court and contradicts the Constitution of Zimbabwe, are groundless. These statements contradict the provisions of the Vienna Convention on the Law of Treaties of 1969 that "a State may not invoke the provisions of national law as grounds for non-performance of international obligations" (article 27 of the Convention).26. Moreover, it appears that in deciding to suspend the Tribunal's activities, the SADC leaders acted as if they had forgotten the international obligation to abide by the treaties they had concluded.27
On the other hand, sovereign States are free to conclude and terminate international treaties. In deciding to suspend the Tribunal's activities, the members of the Community stressed that sovereignty and solidarity come first in the SADC hierarchy of values, and the rule of law and the protection of human rights come next.
SADC members do not support the idea of creating a regional court, as they do not want to transfer part of their sovereign power to this body. And this is due to the fact that, according to some experts, they have a relatively "fragile" sovereignty, which is "due to their colonial past" 28.
In this regard, it should be pointed out that there is a view that the idea of establishing the Tribunal was dictated not by a belief in international law, but rather by a desire to strengthen ties with European donor States, as a result of which the members of the Community could not assess the real consequences of the functioning of the Tribunal by signing the Protocol on its Establishment.29
The rule of sovereignty in countries in southern Africa hinders the establishment of mechanisms for the enforcement of regional judicial decisions. It is obvious that SADC States will invoke their sovereignty to limit the interference of an international organization, which is SADC, in the political, economic and legal processes taking place in them. In this case, the principle of sovereignty may undermine the principle of regional cooperation.
It seems that SADC member States should engage in an open dialogue in order to reach agreement on the balance and balance between the principles of sovereignty, regional cooperation, compliance with international obligations, the rule of law and the protection of human rights.30
At the same time, the mandate of the Community judicial body should probably be more clearly defined. For it is clear that the lack of a clear and convincing presentation of the Tribunal's human rights protection powers in the organization's documents (as opposed to the aforementioned Additional Protocol on the ECOWAS Court) has led to the suspension of its activities.
Although the SADC Tribunal is not currently operational, its decisions must be implemented in accordance with the obligations of States. This is confirmed by the decision of the Constitutional Court of South Africa.
Sanctions for non-compliance with the decision may be imposed at the SADC Summit of States, in accordance with Article 33 of the SADC Founding Treaty. However, no specific sanctions for non-compliance with the Tribunal's decision have yet been noted.
The member States of SADC and other integration associations of the world are aware that human rights have now become one of the main criteria for assessing economic development and well-being in the regions, and every day they play an increasing role in the activities of these communities. It is hoped that the decisions of already pan-African bodies (HRAPS or the African Court of Justice) will contribute to ensuring the rule of law in the South African region and strengthen the role of mechanisms for the protection of human rights on the continent.
1 Communique of the Extraordinary Summit of SADC Heads of State and Government, 30 March 2009 - http://www.sadc.int/files/8213/ 5292/8385/SADC__Extraordinary Summit-_March_2009.pdf
Solntsev A.M., Bazadze D. M. 2 Sub-regional mechanisms for the protection of human rights in Africa / / Africa in search of sources of peace and development: Yearbook-2013 (collection of articles / edited by N. S. Kirabaev, L. V. Ponomarenko, V. I. Yurtaev, E. A. Dolginov). Moscow, RUDN University, 2013.pp. 116-134.
Golubev V. V. 3 Sudy regional'nykh integratsionnykh soedineniy na Afrikanskom kontinent: voprosy jurisdicitsii [Courts of regional integration associations on the African continent: Issues of Jurisdiction]. 2013. N 5 (60). P. 53.
4 Protocol on Tribunal in Southern African Development Community and Rules of Procedure of the Southern African Development Community Tribunal - http://www.sadc.int/files/1413/5292/8369/ Protocol_on_the_Tribunal_and_Rules_thereof2000.pdf
Kaime T. 5 SADC and Human Rights: Fitting Human Rights into the Trade Matrix // African Security Review. 2004, N 13 (1), p. 109.
Ruppel Oliver C., Bangamwabo Francois X. 6 The SADC Tribunal: A Legal Analysis of its Mandate and Role in Regional Integration // Monitoring Regional Integration in Southern Africa Yearbook. 2009. N 8, p. 179.
7 Mike Campbell (Pvt) Limited and Others v Zimbabwe // AHRLR 199 (SADC 2008) - http://wwwl.chr.up.ac.za/index.php/human-rights-news/509-Zimbabwe-mike-campbell-pvt-li mited-and-others-v-zimbabwe-2008-ahrlr-sadc-2008.html
8 Southern Rhodesia Constitutional Conference Held at Lancaster House (London, September-December 1979) - http://peaccmaker.un. org/sites/peacemaker.un.org/files/ZW_791221_LancaslerHouseAgreem cnt.pdf
9 See: Shoko T. My bones shall rise again: war veterans, spirits and land reform in Zimbabwe // African Studies Centre. Leiden, 2004 -http://www.ascleiden.nl/Pdf/workingpaper68.pdf
10 See: Cornell F. The suspension of the Southern African Development Community Tribunal: A threat to human rights, 17 October 2010 - http://www.consultancyafrica.com/index.php?option=com content&view-article&id-583:the-suspension-of-the-southern-african-development-communit y-tribunal-a-threat-to-human-rights&catid=91:rights-in-focus&Ilemid-296
11 The issue was condemned by the UN Committee on the Elimination of Racial Discrimination, which noted that former independence fighters "took the law into their own hands" and occupied farms. See: Committee on the Elimination of Racial Discrimination, Summary record of the 1376th meeting: Zimbabwe. 13.06.2000, UN Doc CERD/C/SR.1376, para. 6.
Naldi Gino J. 12 Mike Campbell (Pvt) Ltd et al v The Republic of Zimbabwe: Zimbabwe's land reform Programme Held in Breach of the SADC Treaty // Journal of African Law, 2009, N 53, p. 305.
13 Commercial Farmers Union v Minister of Lands, Agriculture and Rural Resettlement and Others, 2001 (2) SA 925 (ZS).
Naldi Gino J. 14 Op. cit., p. 311.
Shubin V. G. 15 Zimbabwe: crisis overcome? // Asia and Africa today. 2012, No. 6, p. 45. See also: Khamatshin A.D. Agricultural sector of Zimbabwe: collapse or rise? // Asia and Africa today. 2012, N 11.
Nathan L. 16 Solidarity Triumphs over Democracy - The Dissolution of the SADC Tribunal // Development Dialogue, 2011 -http://www.dhf.uu.se/publications/devclopmentdialogue/dd57/
Battels L. 17 Review of the Role, Responsibilities and Terms of Reference of the SADC Tribunal, Final Report, 6 March 2011 -http://ru.scribd.com/doc/115660010/WTIA-Review-of-the-Role-Responsibilities-and-Terms- of-Reference-of-the-SADC-Tribunal-Final-Report
Viljoen F. 18 International Human Rights Law in Africa. Oxford: Oxford University Press. 2012, p. 502.
19 Official website of the SADC Tribunal - http://www.sadc tribunal.org/pages/decisions.htm
Premhid К. 20 Bob Fights Back: Robert Mugabe and the Sadc Tribunal, 11 July 2013 - http://voices.news24.com/kameel-premhid/ 2013/07/bob-fights-back/#.Ud7nip00LBw.email
21 См.: Botswana says al-Bashir must stand trial at ICC, 6 July 2009
http://mg.co.za/article/2009 - 07 - 06-botswana-says-albashir-must-stand-trial-at-icc
22 The case of Mike Camnbell was continued by the successors of the complainants - one of the plaintiffs in the complaint filed with the Commission is the son of a farmer who filed a collective complaint in Campbell v. Zimbabwe.
23 The African Commission on Human and Peoples 'Rights was established in 1986 on the basis of the 1981 African Charter on Human and Peoples' Rights.53 African States are members of the Charter. The Commission is composed of 11 representatives from different African States. The Charter also includes the African Court of Human and Peoples ' Rights. For more information, see: Abashidze A. Kh., Solntsev A.M. Yubilei afrikanskoi sistemy po prav cheloveka i narodov [Jubilee of the African system on human and Peoples ' rights]. 2012, N 2 (45), pp. 22-25.
West B. 24 African Commission Set to Review Dissolution of Subregional Tribunal, 2 February 2013 - http://hrbrief.org/2013/02/ african-commission-set-to-review-dissolution-of-subregional-tribunal/
Premhid K. 25 Bob Fights Back: Robert Mugabe and the SADC Tribunal, 11 July 2013 - http://voices.news24.com/kameel-premhid/ 2013/07/bob-fights-back/#.Ud7nip00LBw.email
26 Vienna Convention on the Law of Treaties of 23 May 1969 / / UNTS (1980). Vol. 1155, 1 - 18232, p. 417.
Nkwame M. 27 Tanzania: Court to Determine Authenticity of SADC Tribunal Suspension, Tanzanian Daily News, 30 November 2012 -http://allafrica.com/stories/201211 300078.html
Fabricius P. 28 Selfish JZ allowed Mugabe to kill SADC Tribunal, March 3 2013 - http://www.iol.co.za/news/africa/selfish-jz-allowed-mugabe-to-kill-sadc-tribuna1 - 1.14797l4#.UgDJ_5JM-Ex
29 The SADC Tribunal: removing the scales of justice, Conference summary, Pretoria, 1 March 2013 - http://www.safpi.org/events/sadc-tribunal-removing-scales-justice-l-march-2013-pretoria
Muchabaiwa B. 30 Regionalism, sovereignty threaten SADC, 29 March 2011 - http://sap4africa.net/news/regionalism-sovereignty-threatcn-sadc
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