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?

DOI10.3366/ajicl.2020.0334
Pages110-137
Date01 November 2020
Author
Publication Date01 November 2020
INTRODUCTION

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).1 They aim at fostering regional economic integration in Africa and constitute the building blocks of the African Economic Community (AEC), as provided by the Treaty Establishing the AEC (Abuja, 3 June 1991).2

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),3 the main objectives of SADC are to achieve development and economic growth, alleviate poverty, enhance the standard and quality of life of the peoples of Southern Africa and support the socially disadvantaged through regional integration (Article 5(1) of the SADC Treaty). In addition, Articles 4 and 6 of the SADC Treaty indicate that the objective of economic integration has to be achieved through the respect of democracy, human rights and the rule of law. More precisely, according to Article 4(c), the organisation and its member states shall act in accordance with human rights, democracy and the rule of law. Article 6(2) further determines that the SADC and its member states ‘shall not discriminate against any person on grounds of gender, religion, political views, race, ethnic origin, culture, ill health, disability, or such other ground as may be determined by the Summit’. For these purposes, the SADC Treaty establishes a series of institutional mechanisms, including a Tribunal,4 which became operational only 12 years later.

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,5 was initially hailed as the beginning of a new era in which African states seemed willing to change their traditional hesitant attitude towards judicial settlement of disputes.

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.6 In this regard, particularly significant was the deliberate omission of a judicial organ from the Charter of the Organisation of African Unity (OAU), established in 1963, and the fact that the Commission of Mediation, Conciliation and Arbitration created in 1964 never became operative because no disputes were ever submitted to it by either member states or OAU organs.7 Also, the Mechanism for Conflict Prevention, Management and Resolution, created thirty years later by the OAU, was principally a political, not a judicial, organ.8

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 Mike Campbell (PVT) Ltd. et al. v. Zimbabwe case.9 Zimbabwe, held responsible for breaching the SADC Treaty by forcefully acquiring farms from white landowners without offering them proper compensation and denying them access to court, not only refused to honour the judgment, but also started a strong opposition which eventually led to the official suspension of the Tribunal.

Nevertheless, at the behest of civil society activists, two rulings delivered in 2018 by the Regional High Court of Pretoria10 and the Constitutional Court of South Africa11 respectively have added another chapter to the SADC Tribunal saga.12 Indeed, according to the High Court, South Africa's former President Jacob Zuma's role in supporting the SADC Tribunal's suspension and in signing a new Protocol adopted in 2014, which limits its jurisdiction to disputes between member states, was unlawful, irrational and thus unconstitutional. In a subsequent judgment, the Constitutional Court of South Africa confirmed the order of the High Court of Pretoria and directed the current President to withdraw the signature from the 2014 Protocol, which he duly did at the 39th SADC Summit Heads of State and Government held in Dar es Salaam in August 2019.

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 Mike Campbell case, this article aims to discuss the implications of the recent judgments delivered by the Regional High Court of Pretoria and the Constitutional Court of South Africa in order to investigate to what extent they can contribute to discuss the revival of the SADC Tribunal with all its original powers. The article will be structured as follows. First, it will provide an overview of the SADC Tribunal's legal structure. The second section will briefly recap the judgment delivered in 2008 by the SADC Tribunal in the Mike Campbell v. Zimbabwe case and the subsequent facts. The third and the fourth parts of the article will consider the legal reasoning and the decisions of the Regional High Court of Pretoria and the Constitutional Court of South Africa respectively. The last section will develop some considerations on the consequences of the latter beyond the concrete case, with regard to the role played by civil society groups in other SADC member states.

THE SADC TRIBUNAL'S LEGAL STRUCTURE

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 2001.13

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.14

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,15 this broadly worded provision seems to support an argument that the SADC Tribunal could have incidental competence to pronounce upon issues relating to the protection (or not) of human rights norms by member states and, possibly, by SADC institutions as...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT