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A Critique of the Decision of the African Commission on Human and Peoples’ Rights Permitting the Demolition of the SADC Tribunal: Politics versus Economics and Human Rights

Document Cited in Related
Vincent
DOI10.3366/ajicl.2016.0151
Author
Pages215-241
Published date01 May 2016
Date01 May 2016
INTRODUCTION

The beginning of the twenty-first century showed signs of hope for the human rights situation in Africa.1 Over a twenty-year period, the human rights situation on the African continent seemingly improved, albeit slowly and unevenly.2 Some ten years ago the number of violent conflicts, and therefore the extent of gross human rights violation committed, dropped significantly.3 Today, however, some of the problematic issues concerning human rights in Africa are again centre stage. This is because recent events seem to be denting the position that Africa's human rights situation was improving.4 According to the 2015 Fragile States Index, the top 6 most fragile states in the world are in Africa. Even more concerning is that 20 out of the 26 most fragile states are in Africa.5 There are allegations of crimes against humanity in Eritrea, genocide in Sudan, various types of human rights abuse as a result of the conflict in South Sudan, xenophobic violence in South Africa, various types of violence in Burundi, Central African Republic, the Democratic Republic of the Congo, Egypt, Mali and Libya, and violations being committed by insurgency groups, including Al-Shabaab, Boko Haram and others in places like Nigeria, Kenya and Somalia. Millions of people have been affected and have had many different types of violations committed against them. This is the case despite improvements in the processes to prevent and deal with such problems.6

Issues concerning accountability for gross human rights abuse are still very controversial, particularly in Africa.7 Many see that as still a lack of commitment by the African Union (AU) and African leaders to deal with these matters in any consistent way. The spat between the AU and the International Criminal Court (ICC) on the role and function of the Court in Africa gives content to those who argue that pledges by the AU and others are empty promises. However, the fact that only African cases are before the International Criminal Court gives tremendous fodder to those anti the ICC.8 It has fuelled tremendous criticism and major controversies about whether the Court is an imperialist institution biased against Africans, while Western powers and leaders there escape scrutiny and accountability.9 The fact that the ICC has indicted two sitting heads of state, from Sudan and Kenya, has increased further criticism that has been levelled against the Court.

The fact that in July 2015 the Extraordinary African Chamber began the trial against former President of Chad, Hissène Habré, is a tremendous advance for African accountability. However, it has not been easy and has taken 25 years and a great deal of effort to get him before a court. It took the intervention of Belgium and its resort to the International Court of Justice decision to ensure that Senegal took action. This case therefore is more an aberration, than a cause célèbre about what is likely to happen in the future.

At a systemic level, the defence of human rights in Africa has grown significantly over the last few decades. A part of the reason for the improvement in the past is the move from the Organisation of African Unity (OAU) to the African Union (AU), with its various human rights and peace structures.10 The OAU was criticised because of its weak position vis-à-vis African leaders. Certainly, the AU's Peace and Security Council is an important development to enhance collective security in Africa, through conflict prevention, peace-keeping, peace-making and peace-building efforts. However, while there are older structures such as the African Commission on Human and Peoples' Rights, newer processes and institutions such as the New Partnership for Africa's Development (NEPAD) and the African Peer Review Mechanism, in addition to the African Court on Human and Peoples' Rights, are important parts of the arsenal to play a protectionist and promotional role on human rights matters. A critical issue in the development of a human rights system in Africa is the development of regional economic communities with human rights protection processes.

This article examines the role played by the Southern African Development Community (SADC) Tribunal and why it was decimated between 2010 and 2012, when its individual and group complaint procedures were removed to make it into a body that can only hear state complaints. This is not only a human rights matter as the SADC tribunal also allowed those aggrieved on other grounds, such as for economic reasons, to have a further forum to litigate their claims when the courts in the country concerned would not come to their rescue. The article therefore examines the formation of the SADC, the creation of its Tribunal, and how – and why – the SADC then took the steps it did to hollow out the jurisdiction of the Tribunal without consulting the people of the region. It examines why this was done as well as how it was done and critically critiques the decision of the African Commission that reviewed the SADC process taken to limit the jurisdiction of the Tribunal.

The communication of the African Commission on the SADC Tribunal is reviewed in detail to determine how it arrived at the decision and why the SADC process affecting the Tribunal was found not to be in violation of any of the human rights principles that the Commission upholds. The article reviews the reasoning process of the Commission, as far as both the procedural and substantive issues are concerned. The article examines and appraises the decision, including why the Commission decided that the SADC itself could not be sued, but that only the 14 SADC member states, at that time, could be sued individually. The article reviews and evaluates the process, as well as the procedural and substantive aspects of the decision, and analyses the narrowness of the decision, as well as the limited examination by the African Commission of the human rights issues that were in question. It further examines the many other issues, instruments and rights that could have, and should have, been scrutinised. The article suggests ways that the Commission could have arrived at a different outcome by more fully analysing the rights in question, as well as the processes and the procedural and substantive aspects of the issues. It does so by using both a literalist and generous interpretation methodology to show that the outcome could have been more human rights friendly and more in keeping with an approach that would have supported broader human rights protections.

 THE RISE AND FALL OF THE SADC TRIBUNAL

The SADC, which today has 15 member states,11 was established in 1992,12 replacing the Southern African Development Coordination Conference (SADCC).13 Like other sub-regional blocs, the SADC had been developing its ability to prevent and manage conflict. The Inter-State Defence and Security Committee (ISDSC) predated the SADC. The ISDSC was established by the frontline states of Mozambique, Tanzania and Zambia in 1975.14

The SADC has had some involvement in trying to deal with conflict. Its role is, however, not uncontroversial. For example, in August 1998, Angola, Zimbabwe and Namibia intervened in the DRC supposedly for humanitarian reasons. While the SADC did not organise the intervention, it later endorsed the action. In September 1998, South Africa (with the later assistance of Botswana) intervened in Lesotho when a coup d'état took place supposedly under the auspices of the SADC.

As with other sub-regions in Africa human rights abuses abound. For this reason, the SADC has, at least in the past, shown some willingness to deal with human rights matters. The SADC's direct human rights role began when the Tribunal was established.15 It was officially inaugurated on 18 November 2005 in Windhoek, Namibia, where it has been headquartered.16 The SADC Tribunal17 was established with 10 judges, 5 of whom are regular judges, the others being part-time.18 In the five years until 2010, the Tribunal was very active.19 It heard 30 cases and decided 24 of them.20 Individuals had brought all these cases, many focused on Zimbabwe21 and issues concerning land expropriation.22

The Tribunal was extremely robust in its work.23 It even found against the SADC itself on a number of occasions. The most important of these occurred in 2010 when it overturned the decisions of the SADC Council of Ministers and the Summit not to renew the contracts of two senior SADC officials.24 This is an important issue from the standpoint of whether such an institution can be sued or not.25 The African Court has, for example, as will be discussed later, decided that the AU cannot be sued. The SADC Tribunal, however, decided that such cases were admissible. This goes to the heart of the issue decided by the ACHPR that the SADC could not be a party to the complaint. Regardless, the finding by the Tribunal against the SADC in favour of the SADC employees seemed to be an important nail in the coffin for the Tribunal. By then other SADC organs and member states were unhappy about the role the Tribunal was playing.

It was, however, Zimbabwe that became active in a campaign to limit if not destroy the Tribunal. This was the case, because it was aggrieved by multiple findings against it by the Tribunal. The way that the SADC regarded these cases must be seen in the fact that decisions of the Tribunal were not enforced,26 especially against Zimbabwe.27 This was the case despite the Tribunal making finding after finding against Zimbabwe.28 Zimbabwe, however, specifically refused to enforce the SADC Tribunal decisions and a Zimbabwe court agreed that the SADC Tribunal's decisions should not be enforced in that country.29 The SADC itself did not enforce the judgments of the Tribunal, despite a specific request to do so in a decision of the Tribunal reporting the refusal of Zimbabwe to enforce its decisions.30 It was the South African courts, on a number of occasions,31 including the Supreme Court...

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