Reactions to the Backlash: Trying to Revive the SADC Tribunal through Litigation

Introduction

In their article ‘Backlash against International Courts in West, East and Southern Africa: Causes and Consequences’, Professors Alter, Gathii and Helfer eloquently portrays the political context leading to the rise and demise of the SADC Tribunal, the consequence of which was also the demise of an individual claims procedure for individuals in relation to human rights violations by member States. The life-span of the SADC Tribunal was a mere five years, for even though it was officially suspended in 2012, its functioning was effectively suspended since 2010.

At the time of its suspension, the SADC Tribunal had handed down 19 decisions of which 11 concerned Zimbabwe. Of these decisions eight were related to the Campbell and Others v Zimbabwe (Merits), Case No SADC (T) 2/2007, (8 November 2008)). Two of the three remaining cases involving Zimbabwe also concerned the violation of human rights. In Luke Tembani v Republic of Zimbabwe (Case No SADC (T) 07/2008 (14 August 2009)) the applicant had been denied a fair hearing after the seizure of his mortgaged property, while in Gondo and Others v Republic of Zimbabwe (Case No (SADC) (T) T) 05/2008 (9 December 2010)), the Zimbabwean Government had refused to give effect to court orders of Zimbabwean domestic courts that provided relief for victims of violence and thereby denying their right to a remedy. The final decision concerning Zimbabwe, United People’s Party of Zimbabwe v SADC and Others, Case No SADC (T) 12/2008 (11 June 2012)) related to the exclusion of the United Peoples’ Party of Zimbabwe from the power-sharing process in Zimbabwe that was mandated by the SADC during an Extraordinary Summit in March 2007.

Of the remaining eight cases five concerned internal employment disputes between the SADC and its employees. The remaining three decisions concerned a default judgment against the Democratic Republic of Congo (DRC) for unlawful seizure of property (Bach’s Transport (PTY) LTD v Democratic Republic of Congo Case No SADC (T) 14/2008 (11 June 2010)); a denial of jurisdiction in a case involving deportation from Tanzania due to lack of exhaustion of local remedies (The United Republic of Tanzania v Cimexpan (Mauritius) LTD and Others, Case No SADC (T) 01/2009 (11 June 2010); and a condonation of a late filing of defence by the Government of Lesotho in a case concerning the cancellation and revocation of mineral leases (Swissbourgh Diamond Mines and Others v The Kingdom of Lesotho, Case No. SADC (T) 04/2009 (11 June 2010)).

It is noteworthy that Zimbabwe did not accept any of the SADC Tribunal judgments against it, nor did the DRC (in the only other instance that the SADC Tribunal handed down a decision against a member State). The only attempt by a SADC member State to give effect to any of these decisions, was the partial enforcement of the Campbell decision in South Africa against Zimbabwean property used for private purposes (Government of Zimbabwe v Louis Karel Fick, 2013 ZACC 22). This implies that the legacy of the now suspended SADC Tribunal in terms of fostering a culture of human rights in the region is at best negligible.

Even so, human rights organizations regarded the subsequent adoption of the Protocol on the Tribunal in the Southern African Development Community of 18 August 2014 (hereinafter the new 2014 Protocol on the SADC Tribunal) as a huge set-back to all who had valiantly campaigned for preserving the individual complaints procedure. Article 33 of the new 2014 Protocol on the Tribunal limits the material jurisdiction of the future SADC Tribunal to inter-State disputes pertaining to the interpretation of the Treaty of the Southern African Development Community of 17 August 1992 (as amended) (hereinafter the SADC Treaty) and its Protocols. The new 2014 Protocol on the SADC Tribunal has not yet attracted any ratifications and is a long way removed from the ratification by two-thirds of the member States, which is required by Article 53 for entry into force.

At the time of writing several human rights organizations and law societies were attempting to pressure member States to revoke their previous decisions to abolish the individual complaints procedure. In addition to raising awareness within civil society about the potential importance of individual access to the SADC Tribunal in the area of human rights, human rights organizations and national law societies have resorted to a comprehensive strategy of litigation. They have initiated various legal proceedings on the regional and national levels, claiming that the participation of the SADC member States in the suspension of the SADC Tribunal and subsequent revocation of the individual claims procedure were in violation of international and domestic law.

The current contribution will highlight one category of proceedings, namely those initiated under the African Charter of Human and Peoples’ Rights of 27 June 1981 (the African Charter). In doing so, it assesses the soundness of the legal arguments presented by the claimants, which inter alia relates to the question whether member States of SADC could be held responsible individually for decisions of the organization. As Article 3(1) of the SADC Treaty determines that SADC has separate legal personality under international law, this raises complex questions of attribution. If it transpires that the decisions leading to the suspension of the SADC Tribunal and/ or the revocation of the individual complaints proceedings before it were not in violation of international law, this will weaken attempts of civil society groups to raise pressure for reinstating a SADC Tribunal with an individual complaints procedure. After all, if one intends to use litigation as a tool to further a particular end, one has to consider carefully whether the tool is appropriate for accomplishing the task in question.

Holding SADC and its member States responsible for the revocation of the individual complaints procedure under the African Charter

 All SADC members have ratified the African Charter, which provides for a monitoring body in the form of the African Commission of Human and Peoples’ Rights (the African Commission). This body may receive complaints concerning the violation of the African Charter from States against another State, or by individuals and non-governmental organizations against one or more States (Arts 48, 49 and 55 of the African Charter). The recommendations of the African Commission are non-binding. At any time during its proceedings the African Commission can refer a case to the African Court of Human and Peoples’ Rights (the African Court) in relation to those States that have ratified the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights of 10 June 1998 (hereinafter the Court Protocol) (Art 5(1)(a)).

Whereas the African Commission has jurisdiction over all States which have ratified the African Charter, the African Court only has jurisdiction over those African States which have – in addition – ratified the Protocol establishing the Court (Arts 5 and 34 of the Court Protocol). In relation to these States, the African Court has the power to make binding decisions (Art 30 Court Protocol). Furthermore, the African Court may be approached for an advisory opinion by a broad variety of actors on the continent and may give an advisory opinion on any relevant human rights instrument (Art 4 of the Court Protocol). Although non-binding in nature, an advisory opinion constitutes a persuasive legal determination of the matter at hand. The African Commission for its part only have the competence to interpret the African Charter at the request of member States, an institution of the AU or an African organization recognized by the AU (Art 45(3) of the African Charter).

In November 2012 the Pan African Lawyer’s Union (PALU) and the Southern African Litigation Center (SALC) petitioned the African Court for an advisory opinion on whether the suspension of the SADC Tribunal and termination of office of its judges resulted in a violation of institutional independence of the SADC Tribunal and the personal judicial independence of its judges in accordance with Article 26 of the African Charter. However, the African Court declared the request for an advisory opinion inadmissible. This was due to the fact that Article 4(1) of the Court Protocol prevented the African Court from considering a request for an advisory opinion, the subject matter of which was simultaneously also being examined by the African Commission. In this particular case, the subject matter was at the time indeed also being examined by the African Commission.

The Tembani case before the African Commission, which was decided in November 2013, turned on whether the suspension of the SADC Tribunal violated the individual rights to access to court and an appeal procedure as guaranteed in Articles 7 and 26 of the African Charter (par 115). The claim was brought against the SADC itself, as well as its individual member States. As the African Commission has jurisdiction only over member States of the African Charter, it declared the communication inadmissible in relation to SADC (an international organization with separate legal personality and not signature to the African Charter) (par 80). The African Commission further rejected the claim against the member States on the merits, emphasizing that Articles 7 and 26 of the African Charter guaranteed the rights to access to courts and appeal within the domestic legal system of member States only. These articles did not provide a right to access to an individual claims procedure on the international level (paras 138, 142, 144).

The African Commission acknowledged that the suspension of the SADC Tribunal was the act of SADC itself, a separate subject under international law (par 132). However, the African Commission was willing to accept that when an international organization carries out functions on behalf of its member States, the States can incur responsibility for any wrongful act that would have invoked their international responsibility had they acted on their own (paras 132, 134). This conclusion is supported by Article 61 of the ILC Draft Articles on the Responsibility of International Organizations for Internationally Wrongful Acts of 2011 (DARIO), according to which States could incur responsibility where they availed themselves of the separate legal personality of the organization to circumvent its/ their own obligations under international law.

Such attempted circumvention requires that the respective international organization (i.e. SADC) had to have the competence to act in the particular area. Second, there had to be a significant link between the conduct of the organization and its member State(s) in the sense that the State(s) must have caused the behaviour of the organization. Third, one would have to establish that if the specific conduct had been undertaken by the member State itself (as opposed to the organization), it would have amounted to a violation of international law. This would be the case where member States channelled a decision through an international organization, because the organization was not bound by the same treaty obligations that constrained its member States (DARIO commentary p. 95). As it was in the competence of SADC to amend the powers of the SADC Tribunal and its decision to suspend the SADC Tribunal was facilitated by member State consensus to this effect, the first and second criteria were fulfilled. However, it could not be established that the member States circumvented their obligations under Articles 7 and 26 the African Charter by channelling the suspension of the SADC Tribunal or revocation of the individual complaints procedure through a decision of SADC. As indicated above, the African Commission concluded that these articles do not guarantee access to independent courts or appeal procedures beyond the domestic legal system (see also Tembani decision, par. 145).

The author agrees with the legal reasoning of the African Commission and questions the wisdom of the litigation strategy pursued by the claimants before the African Court and the African Commission. From a procedural perspective, it was ill advised to approach the African Court about the interpretation of Article 26 of the African Charter while a complaint that also turned on this article was pending before the African Commission. The African Court had little choice but to declare a case inadmissible, since the last sentence of Article 4(1) of the Court Protocol clearly determines that it cannot give an advisory opinion if the subject matter of the opinion is related to a matter being examined by the Commission. This procedural error could have been avoided through better coordination of the respective claims by the lawyers advising the parties.

Second, the choice of Articles 26 African Charter as the basis for request before the African Court and Articles 7 and 26 as a basis for the claim before the African Commission is perplexing. First, one has to keep in mind that while SADC is an international organization with international legal personality, it is not a party to the African Charter. As a result none of the rights and obligations in the African Charter (whether it concerns those contained in Articles 7 and 26 or any other article) is binding on SADC as a matter of treaty law. This fact, combined with the fact that Articles 7 and 26 regulate the behaviour of member States in relation to their domestic judiciaries only, make the African Charter the wrong vehicle for litigation aiming at SADC. Added to this is the fact that the African Commission can never serve as a forum for claims directed at SADC (or any other regional organization), as it only has jurisdiction over member States of the African Charter.

While the contentious jurisdiction of the African Court is also limited to claims by individuals against member States, its broad advisory jurisdiction provided for in Article 4(1) of the Court Protocol potentially provides for an avenue for reviewing whether the suspension of the SADC Tribunal was in violation of international law. It determines that ‘[a]t the request of a Member State of the [AU] the [AU], any of its organs, or any African organization recognized by the [AU], the Court may provide an opinion on any legal matter relating to the Charter or any other relevant human rights instruments…’. Human rights organizations could arguably rely on this article to approach the African Court for an advisory opinion on whether the suspension of the SADC Tribunal and the revocation of the individual complaints procedure amounted to a violation of Article 4(c) of the SADC Treaty, which obliges SADC and its member States to act in accordance with human rights, democracy and the rule of law.

This line of reasoning presupposes that the SADC Treaty amounts to a human rights treaty, given that the advisory competence of the African Court is limited to the interpretation of ‘human rights instruments’. It is of course debatable whether a treaty creating an international organization primarily aimed at economic growth and development would constitute a human rights treaty, merely because of the general reference to human rights in article 4(c) of the SADC Treaty. Elsewhere this author has questioned the conclusion of the SADC Tribunal in the Campbell decision that Article 4(c) (and Article 6(2)) of the SADC Treaty were indeed intended to invest individuals with enforceable rights that could be invoked before the SADC Tribunal (De Wet, ‘The rise and fall of the Tribunal of the Southern African Development Community: implications for dispute settlement in Southern Africa’, (2013) 28 ICSID Review 50). No drafting history of the SADC Treaty is available and the text of the SADC treaty leaves room for debate, as the relevant articles are phrased as State obligations and not as individual rights, which is the usual terminology in human rights treaties that guarantee enforceable rights.

Be that as it may, the Campbell decision provides support for the conclusion that the SADC Treaty constitutes a human rights treaty. In addition, it is binding on the organization as such. From the perspective of strategic litigation a request for an advisory opinion turning on article 4(c) SADC Treaty may therefore be worth pursuing. A decision by the African Court that the suspension of the (individual complaints procedure before the) SADC Tribunal violated article 4(c) of the SADC Treaty would create embarrassment for SADC member States, even though advisory opinions of the African Court are not binding. This in turn could generate some political leverage for civil society groups and lawyers organizations when lobbying governments for reinstating a SADC Tribunal and the individual complaints procedure.

Concluding Remarks

In the final analysis the author remains sceptical whether strategic litigation of the kind undertaken before the African Commission and African Court will convince African governments to revive a SADC Tribunal with an individual complaints procedure. The suspension of the SADC Tribunal and the revocation of the individual complaints procedure in the new 2014 Protocol on the SADC Tribunal are symptomatic of the increasing antagonism of SADC member States against the constraining effects of international adjudication on the executive. For example, at the time of writing, several of the SADC member States (including South Africa) were also contemplating to withdraw from the Statute of the International Criminal Court, while South Africa in addition recently announced a policy decision to review and exit its bilateral investment treaties (and by implication the access they provide to international dispute settlement mechanisms).

While there are of course differences between these different judicial bodies and the reasons for withdrawal relate to different contexts, it is not unreasonable to conclude that they are indicative of a pattern of defiance. States in the regions seem increasingly willing to face (and sit out) the fall-out from legally and politically controversial decisions aimed at curbing the competencies of international dispute settlement mechanisms to which they are bound. This should come as no surprise in a region where most States have a poor domestic track record in relation to human rights protection and judicial independence. If nothing else, the fate of the SADC Tribunal has poignantly illustrated that States which systematically fail to accept the binding authority of their own domestic courts are also unlikely to respect the authority of a binding international court or tribunal.