From the Campbell Case to a Recent Ruling of the Constitutional Court of South Africa: Is There Any Hope to Revive the Tribunal of the Southern African Development Community?
| DOI | 10.3366/ajicl.2020.0334 |
| Pages | 110-137 |
| Date | 01 November 2020 |
| Published date | 01 November 2020 |
In the course of the last decades, Africa's regional economic integration landscape has witnessed the establishment of different inter-governmental organisations, eight of which are recognised by the African Union (AU) as Regional Economic Communities (RECs).
Among the different RECs, the Southern African Development Community (SADC) was created in 1992, replacing the Southern African Development Coordination Conference (SADCC) which aimed at ending the region's dependency on the South African apartheid regime. Established under the SADC Treaty (Windhoek, 17 August 1992),
The SADC Tribunal's effective foundation, together with the proliferation of judicial institutions for the settlement of disputes established by other regional economic integration treaties,
Indeed, in the years following their accession to independence, African states had proven to be reluctant to use judicial mechanisms of dispute settlement due to a lack of trust in the system of ‘international law’ from which they were excluded prior to the UN Charter era and the rules of which were sometimes used to justify their colonisation.
However, on closer examination, it seems that such reluctance has not been fully overcome even in the context of regional economic integration schemes. With regard to the SADC, the initial optimism started declining in 2008, after delivery of the SADC Tribunal's decision in the
Nevertheless, at the behest of civil society activists, two rulings delivered in 2018 by the Regional High Court of Pretoria
South Africa's civil society has scored victories in the above rulings. But what is of particular importance for the present article is whether the judgment delivered by South Africa's Constitutional Court could inspire civil society groups in other SADC member states to bring similar cases against their respective governments, thus triggering national courts to eventually instruct the relevant member states to invalidate their signature of the Protocol adopted in 2014.
Starting from the decision delivered in the
The SADC Tribunal represents one of the major sub-regional courts established by African countries over the past decades. It was formally established by the SADC Treaty, while the details of its composition, competencies and procedures were regulated in a separate Protocol adopted on 7 August 2000 (2000 Protocol), that entered into force on 14 August 2001.
As far as the jurisdiction of the SADC Tribunal is concerned, the SADC Treaty and the 2000 Protocol enable it to adjudicate a wide range of disputes. Moreover, it enjoys the power to issue preliminary rulings (Article 16(2) of the 2000 Protocol) and advisory opinions (Article 16(4) of the SADC Treaty and Article 20 of the 2000 Protocol). Finally, it has an appellate function in relation, for instance, to the trade panels established in terms of Article 31(b) of the SADC Protocol on Trade (amended Article 14(b) and Article 20(a)(1) of the 2000 Protocol).
The SADC Tribunal is entrusted with the duty to ‘ensure adherence to and proper interpretation of [the SADC] Treaty and subsidiary instruments, and to adjudicate upon such disputes as may be referred to it’ (Article 16(1) of the SADC Treaty), and to adjudicate ‘any dispute arising from […] the interpretation, application or validity of Protocols or other subsidiary instruments made under [the SADC] Treaty’ (Article 32 of the SADC Treaty). In addition, the 2000 Protocol further stipulates that the Tribunal shall have jurisdiction over all disputes and all applications referred to it in accordance with the SADC Treaty and the Protocol, which relate to ‘the interpretation, application or validity of […] acts of the institutions of the [SADC]’ and ‘all matters specifically provided for in any other agreement that member states may conclude among themselves or within the [SADC] and which confer jurisdiction on the Tribunal’ (Article 14 of the 2000 Protocol).
As regards personal jurisdiction, according to the SADC Tribunal's mandate as originally designed, it has jurisdiction over disputes between: member states (Article 15(1) of the 2000 Protocol); natural or legal persons and member states on the condition that local remedies have been exhausted (Article 15(1) of the 2000 Protocol); member states and the SADC (Article 17 of the 2000 Protocol); natural or legal persons and the SADC (Article 18 of the 2000 Protocol); and SADC employees and the SADC (Article 19 of the 2000 Protocol).
Since the SADC tribunal has jurisdiction over disputes between natural persons and member states, one could wonder whether it has competence with regard to the protection of human rights and fundamental freedoms.
As previously stated, Article 4(c) of the Treaty commits the SADC and its member states to act in accordance with the principles of human rights, democracy and the rule of law, without explicitly referring to any specific legal instrument. However, the Tribunal is mainly tasked with disputes arising in the context of regional economic integration and it does not seem to have been conceived as a typical human rights court, dedicated to control compliance with relevant human rights instruments.
That said, one must bear in mind two additional circumstances that could justify the Tribunal's jurisdiction over human rights claims. First, according to Article 21 of the 2000 Protocol, the Tribunal shall ‘develop its own Community jurisprudence having regard to applicable treaties, general principles and rules of public international law and any rules and principles of the law of Member States’. As has been correctly observed in legal scholarship,
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