Zimbabwean President Robert Mugabe. Picture: SUNDAY TIMES
Zimbabwean President Robert Mugabe. Picture: SUNDAY TIMES

TANZANIAN president Jakaya Kikwete is said to have described it as a monster that will "devour us all". Now the Southern African Development Community (Sadc) Tribunal — meant to be the region’s supreme symbol of justice — is little more than a pile of mouldering bones.

But, even from the grave, the tribunal continues to torment the Sadc leadership, especially Zimbabwean President Robert Mugabe.

Jeremy Gauntlett SC talks of a noble ideal destroyed simply because it did what was expected of it to uphold decent laws.

Could even prescient former president Kikwete have foreseen the kind of havoc the tribunal would wreak? Could he have foretold that Zimbabwe’s confiscated white farmlands issue would cross boundaries in search of a legal solution?

Would he have found any sense at all that by hearing the case, the South African legal system was upholding human rights while Zimbabwe could be said to be seeking to embed a new constitution with the very human rights contradictions that had launched the legal odyssey in the first place?

In the opinion of Merran Hulse, an international relations academic at Radboud University in Holland, the tribunal was trying to run before it could walk and stumbled when it took on Mr Mugabe’s government in one of its first human rights cases, in 2008. Zimbabwe refused to enforce the judgments over land, while another case related to a fine for torture.

Nicole Fritz, director of the Southern Africa Litigation Centre, believes the Sadc summit last year should have acted with more conviction. To her mind, the Sadc ministers faced a simple choice: to strengthen the tribunal, the rule of law and prospects for progress in the region, "or render it toothless and undermine Sadc’s own goals of sustainable economic growth and human rights for all". Ms Fritz also maintains when Sadc acted to deprive individuals of the right to access the tribunal, it removed one of the last remaining avenues southern Africans have of securing recognition of their governments’ unlawful actions.

"It set itself at odds with the other regional economic communities in Africa," she points out. "Both the Economic Community of West African States and the East African Community secure the rights of individual access to their respective courts, recognising that such access is critical to protecting human rights and to encouraging economic growth."

Nowhere was the anger at the court’s disassembly more vehemently expressed than from the top bench of the tribunal itself.

The former judge president of the tribunal, Ariranga Pillay, of Mauritius, asserted that the decision of Sadc’s council and summit sent the worst possible signal not only to the Sadc region but also to possible investors, donors and the international community at large.

"The highest Sadc authorities at best only pay lip service to the principles of human rights, democracy and the rule of law and do not scrupulously adhere to them," he said.

The thread that started the unravelling of the tribunal, which sits in Windhoek, was the Mike Campbell farm-seizure case. Since it was established by article 9 of the Sadc treaty as far back as 1992, the tribunal has made orders terminating contracts or intervening in issues, but the Campbell case that began in 2001 is where a spoke was driven in.

Two farm owners, Mike Campbell and his son-in-law, Ben Freeth, were served with an eviction notice by the Zimbabwe government as part of its campaign to confiscate without compensation white-owned agricultural land. In 1999, Mr Campbell and Mr Freeth had transferred ownership of the 1,200ha Mount Carmel estate, near Chegutu, into a family company after receiving a "certificate of no interest" from the government. The document confirmed the state had no interest in acquiring the farm for its land redistribution programme. Two years later, however, they were issued an eviction notice as part of the controversial land reform process.

Mr Campbell and Mr Freeth opted to challenge the grab order. They were thwarted in the Harare High Court and thereafter took the matter to the Sadc Tribunal. In due course the court ruled in Mr Campbell and Mr Freeth’s favour, finding that the Zimbabwean government’s land repossessions were "entirely racially based" and were, therefore, in violation of Sadc’s principles of human rights.

The Zimbabwe government ignored the ruling to respect Mr Freeth and Mr Campbell’s right to own and operate their farm. Soon afterwards, the estate was invaded by Mr Mugabe’s supporters and their homes were torched and razed, along with the homes of the farm workers and their families.

Eddie Cross, Zimbabwe opposition MDC MP and party spokesman, told Business Day that over 80% of the affected farmers bought their farms after independence with certificates of no interest issued by the Zanu (PF)-dominated government.

"Their title rights were protected by the constitution of the day," says Mr Cross.

"The only way these rights can be taken over is by purchase at an agreed price or a price set by a court of law. These rights remain intact and this has been confirmed by our own (lower) courts, by the Sadc Tribunal and by South Africa’s courts. These decisions are binding on the Zimbabwe government, even though they have chosen to ignore them."

Zimbabwean researcher and actuarial consultant Mbango Sithole sees the issue differently. Noting that the confiscation of white farms did little to address land redistribution because "the majority of those resettled were Zanu (PF) supporters and senior government officials, including the army and war veterans … land reform is clearly unfinished business.

"This will not be a process of restoring land to former white owners but to address the black against black inequalities, which made it (the land seizure programme) a dismal failure."

The sinking of the tribunal means that Sadc is now the only multilateral African body with no human rights component.

The Common Market for Eastern and Southern Africa and the Economic Community of West African States have properly constituted tribunal-type legal structures that include the so-called citizen’s petition, allowing individuals to challenge the state on human rights grounds.

The East African court does not have a human rights component but does allow individual access.

The decision that the confiscation without compensation of Mr Campbell’s land was an illegal act had severe repercussions for the tribunal.

Zimbabwe immediately challenged the legitimacy of the tribunal and convinced other Sadc leaders to join it in scuttling the fledgling court. The dismantling was easier said than done, however, and a task team of member state attorneys-general and justice ministers is yet to propose an alternative. But, to all intents and purposes, the tribunal is ineffectual.

Of concern to some Africa watchers is the fact that such progressive Sadc members such as South Africa, Botswana, Namibia and Mauritius voted against the human rights protocol of the Sadc tribunal, even though such provisions are strictly enshrined in their own constitutions and bills of rights.

For Ms Fritz, however, the collective torpedo that sank the tribunal was not as sinister as it sounded. "The decisions of Sadc have always been taken by consensus," she says.

"That is a principle. Surprisingly, Botswana was one of the states that was very much against the tribunal and that’s because Botswana views itself as exceptional in the African continent and will not subject itself to supranational rulings, much like the US. Some African Commission rulings have gone against Botswana, but it has chosen to ignore them."

Ms Fritz found that South Africa and Mozambique were supportive of the tribunal and were keen to see it survive, but that it ultimately came down to the fact that South Africa was reluctant to expend political capital and earn the enmity of other states by insisting on backing the tribunal. South Africa at the time was cheerleading for Nkosazana Dlamini-Zuma as chairwoman of the African Union and was careful not to fracture the bloc.

Netherlands researcher Ms Hulse views the antitribunal collusion in a different light altogether. She maintains the Sadc leaders feared the court, viewing it as a Pandora’s box that must remain sealed at all costs.

"The first potential explanation is one based on domestic institutional concerns within southern Africa," she says.

"The most obvious explanation for the summit’s decision is that heads of state presiding over countries with democratic deficits were worried that one day they would be held to account. Allowing citizens the right to litigate against governments would open the gate to a potential flood of cases alleging infractions against human rights, democracy and rule of law in numerous countries."

Mr Gauntlett has his own take on the thinking behind the decision. "It is clear that the sense of solidarity between the former liberation movements is stronger than a commitment to international human rights, and above all, the justiciability by a regional body of governmental actions," he says.

"The penny has dropped. Other Sadc members, vulnerable like Botswana, Malawi and Angola to being held to account by international human rights standards, see no advantage in a revived Sadc tribunal with more than token powers."

The reality was that as an entity offering justice for the individual, the tribunal was seated in a sea of quicksand and could be swallowed at any time. Any decisions it reached depended on the blessing of the summit to be accepted; when the tribunal challenged a struggle icon that member states owed liberation war debts to, the tribunal was doomed.

What is more, the tribunal did not enjoy insulation from political interference in a "separation of powers" kind of way.

"The judiciary is the least dangerous branch of government," says Ms Fritz, quoting US founding father Alexander Hamilton.

"It does not control the purse strings or the army. It relies on the other branches to enforce its rulings. That’s even more true for regional courts.

"They rely on the consent of member states to be bound by the rulings to ensure compliance. But when a state refuses to comply, there are few enforcement mechanisms to back up the findings of such institutions as the Sadc Tribunal. So, generally speaking, the separation of powers is a mirage."

Mr Gauntlett ventures that had the tribunal survived (and these were some of the reasons that it did not) it would have allowed, for example, the Bushmen of the Kalahari to challenge the government of Botswana on human rights grounds. He also believes it would have permitted the Malawi government to be taken on for the often brutally enforced discrimination against the gay community there.

Mr Gauntless has called for the suspension of all funding of the tribunal — which is largely donor supported — and other organs of Sadc "until once again individuals are able to access it. Only then might community law promise anything for a region of deep inequality, and uneven and only partial constitutionalism".

So the question remains, what now? Will the fight go on in various political and legal arenas still open to its revival?

The case has also been heard in the African Commission on Human and Peoples’ Rights, which ruled recently that it would hear the case of Ben Freeth and co-plaintiff Luke Tembani, in the so-called Campbell case. The decision was immediately dismissed by Zimbabwe attorney-general Johannes Tomana as "insignificant".

"That’s the problem," says Ms Fritz. "It is not a court. Its rulings are not binding and its pronouncements can take years.

"It’s also the reason why organisations that are concerned with human justice and the rule of law often do not choose the African Commission — the length of time it takes and the lack of enforcement of the ruling. The African Commission is important as a means of shaming offending states, but it has no real consequences."

The Southern Africa Litigation Centre’s next move is an approach to the African Court of Justice for an advisory opinion on the legality of Sadc having decided to dissolve the tribunal and establish a new one. "To what end, you may ask? We would hope that a ruling from a credible international body that the Sadc summit has acted unlawfully will shame them," says Ms Fritz.

"Will we have any international body come in and enforce that ruling should Sadc choose to ignore it? No.

"The hope is that we will get more such pronouncements and a greater recognition of the illegality and that might help create an environment in which the Sadc might revisit its decision."

Since its inception, the African Court of Justice has offered an additional protocol, but so far only five states have signed on, and South Africa is not among them.