SAVE THE SADC TRIBUNAL CAMPAIGN FILM TRANSCRIPT

Save the SADC Tribunal Campaign

Narrated by Archbishop Desmond Tutu

Archbishop Emeritus Desmond Tutu:   This is today’s Zimbabwe… and these are the innocent victims of government-sponsored terror and police brutality.  While the government blocks access to justice, the United Nations fails adequately to address the mass human rights violations and the victims have nowhere to turn.

 

For a brief period of time, however, there was hope for them.  While innocent men, women and children feared for their lives, southern Africa was building a house of justice, a place where crimes could not go unpunished and victims of injustice could turn with confidence.  That house is now in grave danger.

 

17 August 1992 was a great day for Africa. Borne of the visionary leadership of southern African statesmen, the Southern African Development Community, or SADC, was established.

 

It gave southern Africa increased credibility as a region, promising socio economic co-operation, democracy and protection of the rule of law.

 

Today SADC is (the third largest and by far) the most prosperous regional grouping on the continent.  (Graph illustrates point)

 

As a part of SADC, the permanent regional court known as the SADC Tribunal was established and inaugurated in Namibia in 2005. It is empowered to adjudicate legal disputes between member states and between companies and governments. Individuals have also the right to bring cases against their governments before the court when all efforts to achieve justice within their own countries have failed.

 

Justice Onkemetse Tshosa, former SADC Tribunal judge, Botswana:  When an individual has gone through the national courts, and is dissatisfied about a decision in the national courts – up to the highest court in that country – that person can approach the SADC Tribunal

 

Nicole Fritz, Director, Southern Africa Litigation Centre, South Africa:  And if it found that a State was in breach of its obligations, and if it had violated the SADC protocols, it could order that the State pay compensation, that it be interdicted from carrying out the activities that were violative of its obligations, and so it has pretty extensive powers.

 

Tutu:  The individual’s access to the SADC court constitutes a key legal instrument that has brought hope to victims of the abuse of power in SADC countries such as Swaziland, Malawi, Angola and Zimbabwe.  Between 2007 and 2009, the Tribunal adjudicated on about 20 cases.

 

Justice Ariranga Pillay, former SADC Tribunal President, Mauritius:  80 percent of applications before the Tribunal concerned cases of individuals against States – and most of them complained about violations of human rights, democracy and the rule of law.   

Lloyd Kuveya, Project Lawyer, Southern Africa Litigation Centre, South Africa:  The SADC Tribunal has an implied human rights jurisdictional mandate, and so you find that there are a number of human rights cases that were taken to the SADC Tribunal in respect of land, issues of discrimination, issues of torture.

 

Tutu:  The majority involved individuals taking the Zimbabwe government to court because of the breakdown of the rule of law and gross human rights abuses.  Zimbabwe acted with impunity until the highly respected Tribunal judges - drawn from across the region - stood up to the government and ordered it to stop brutalising its own population.  Zimbabwe lost every single case.

 

After intensive lobbying by the Zimbabwe government, the SADC Heads of State suspended the SADC Tribunal in May 2011 and the judges were effectively dismissed.

 

Pillay:  To defer action against Zimbabwe, Summit in 2010 ordered a review relating to the role, responsibilities and terms of the Tribunal.

 

Fritz:  A review in itself is not problematic, we see international organisations reviewed all the time.  But this review has come with an effective suspension.

 

Kuveya:  This was as a result of Zimbabwe challenging the jurisdiction - the human rights jurisdictional mandate - of the SADC Tribunal.

 

Pillay:  Zimbabwe persistently refused to comply with the judgment of the Tribunal and the SADC Summit of Heads of State and Government persistently refused to take action against Zimbabwe.

 

Tutu:  If you are a law-abiding Head of State, why are you scared that people might want to go through another adjudicator, unless it is that you fear you are likely to fall foul of the law?

There is now a real danger that due to Zimbabwe’s pressure, the Tribunal will either be shut down permanently or will no longer be allowed to take on cases brought by individuals or companies against their governments.  What has happened in Zimbabwe could happen elsewhere in the SADC region.

 

Gertrude Hambira, former Secretary-General of the General Agricultural and Plantation Workers’ Union of Zimbabwe (GAPWUZ):   Well I want to take this opportunity to appeal to the SADC leaders to end the violence.

 

Tutu:  The future of the SADC Tribunal hangs in the balance.  Without it, the region will lose a vital ally of its citizens, its investors and its future.

 

Clement Mavungu, Legal Adviser, International Commission of Jurists, South Africa:   The principle of individual access to the SADC Tribunal has been one of the major burning issues and we are aware that State delegates were not able to agree on allowing individuals to access the SADC Tribunal.

 

Kuveya:  I think it sends a wrong signal to the international community that SADC leaders have no respect for the rule of law.

 

Elize Angula, Attorney, Namibia: (It sends) a very strong message that the politicians around the SADC communities are not prepared to actually take themselves to task for failing to give the rule of law its rightful place.

 

Tutu:  As an African, I am sad that we should give this image of ourselves that we are basically clearly not in favour of the rule of law.  It is up to all of us to ensure that SADC not only reinstates the Tribunal but also strengthens it.

 

Mavungu:   What we need to do is to ensure that the amendment process does not result in the weakening of the SADC Tribunal.

 

Pillay:   The various key stakeholders must intensify their efforts to ensure that the ministers of justice (and) attorneys general - in their review process - do not repeal the principles of human rights and democracy and deny access to the Tribunal to individuals who want to bring cases against their states on those grounds.

 

Patrick Craven, Spokesperson, Congress of South African Trade Unions (COSATU):  It has to be run by an independent body which will be able to take individual governments to task if they are found guilty of human rights allegations.

 

Tutu:  We need the support of SADC citizens, civil society and the wider community to save the SADC Tribunal so that the rule of law, development and human rights are protected throughout our region.

 

Tshosa:  We want to see court that is independent, that can have these decisions enforced at national level.  (Audio section not clear)

 

Alice Mogwe, Director, Ditshwanelo Centre for Human Rights, Botswana:  Citizens should have recourse if you find that you are failing to have your rights protected and you’re not getting access to justice at a national level.

 

Tshosa:  A regional court like that is the only hope that a citizen has - that where his or her rights are violated by national authorities, that’s where he can go.

 

Pillay:  People are at the centre of human rights, and human rights are ratified by States in order to benefit people.  If individuals of a SADC State were denied an effective remedy in their domestic courts, they had a right of access and redress before the now defunct Tribunal.  They should continue to enjoy such a right.

 

Elize:  It is almost a beacon of light in my view to have in countries where our democracies are still new, that people are still unable to define exactly their roles – where does their limit of powers end and begin?  That if somebody is assured they can test those powers in an independent tribunal, for me that is what the SADC Tribunal represents - it gives HOPE.

 

ENDS

 

Link to 10-minute film: 

http://www.youtube.com/watch?v=4iCUlSii6oI

 

Please note that a shorter version of the film, lasting 3-minutes, is being finalised and will also be posted on You-Tube very shortly – full link not yet available

 

http://youtube.com

 

For a list of interviewees, see next page.

LIST OF PEOPLE INTERVIEWED IN THE FILM

 

  1. Justice Dr Onkemetse Tshosa, former SADC Tribunal judge, Botswana

  2. Nicole Fritz, director, Southern Africa Litigation Centre, Johannesburg

  3. Justice Ariranga Pillay, former SADC Tribunal Judge President, Mauritius

  4. Lloyd Kuveya, project lawyer, Regional Advocacy Programme, Southern Africa Litigation Centre, (SALC) Johannesburg

  5. Archbishop Emeritus Desmond Tutu, Elders Group chairman, Nobel Peace Laureate

  6. Clement Mavungu, Legal Adviser, International Commission of Jurists

  7. Elize Angula, attorney (Namibia)

  8. Patrick Craven, spokesperson, Congress of South African Trade Unions (COSATU), Johannesburg

  9. Alice Mogwe, director, Ditshwanelo, Botswana Centre for Human Rights, Gaborone

 

 

SAVE THE SADC TRIBUNAL CAMPAIGN CONTACTS

 

Nicole Fritz, director, Southern Africa Litigation Centre (SALC), Johannesburg

Tel:  +27 11 587 5000

 

Lloyd Kuveya, project lawyer, Regional Advocacy Programme, Southern Africa Litigation Centre, (SALC) Johannesburg

Tel:  +27 11 587 5000

 

Clement Mavungu, Legal Adviser, International Commission of Jurists

Tel:  +27 11 304 9646

 

 

THE SADC TRIBUNAL (SADC TRIBUNAL WEBSITE)

 

The SADC Tribunal is a regional and international court which was established in 1992 by Article 9 of the SADC Treaty as one of the institutions of SADC.  The Tribunal was inaugurated in 2005 and is located in Windhoek, Namibia. 

 

The ten members of the Tribunal were appointed by the Summit of Heads of State or Government held in Gaborone, Botswana, in 2005. The ten members comprised highly respected judges from Angola, Botswana, Malawi, Mauritius, Mozambique, Namibia, Swaziland, Tanzania, Zambia and Zimbabwe.

 

The Tribunal was set up as an independent legal body which has exclusive jurisdiction where Member States have disputes with SADC or its institutions.  It also provides SADC citizens with a platform to seek justice and hold their governments to account when their human rights have been infringed upon.  In addition, the Tribunal oversees the jurisdiction of the SADC institution and acts as its advisory body.

 

Any person (natural or juristic) can bring a matter before the Tribunal alleging a violation of SADC law by a Member State.  That person does not need to be a citizen of a Member State.  However, applicants are required to exhaust all domestic remedies before they request the Tribunal to consider their cases.

 

Since 2007, the Tribunal has ruled on 20 cases that included disputes between citizens and their governments, as well as cases between companies and governments.  The majority of cases involved Zimbabwean citizens taking the Zimbabwe government to court. 

 

http://www.sadc.int/index/browse/page/120#article14  

 

THE SADC TRIBUNAL STILL IN LIMBO BY RICHARD LEE OF OSISA (EXTRACT)

“… (Since May 2011), the SADC legal regime, which includes the Tribunal, has been left dangling. No new cases have been heard and the terms of the judges have not been renewed.

The Tribunal, established by the 1992 SADC treaty as one of the institutions of the 15-member development community, hears cases between citizens and their governments and was also envisaged as the organ that would settle legal disputes between countries.

The decision to suspend the Tribunal was reaffirmed at a meeting of SADC heads of state in Windhoek last May after leaders agreed to a review of its role, functions and terms of reference. This was triggered by the refusal of the Zimbabwean government to abide by two landmark judgments. These were the Campbell case, which found the expropriation of farms without compensation was in violation of SADC protocols, and the Gondo case, which awarded damages of nearly US$17m to nine Zimbabwean torture victims.

An independent review, completed last year, found the Tribunal was correct in its findings, that SADC law should be supreme over domestic laws and that all decisions made by it should be binding and enforceable in all member states. Now delay in restoring the Tribunal’s work following the review is causing consternation…..”

http://www.osisa.org/law/regional/sadc-tribunal-still-limbo

Richard Lee is the Communications Manager at the Open Society Initiative for Southern Africa (OSISA)  Tel:  +27 (0) 11 587 5031

 

FORTHCOMING SADC SUMMIT

 

The next SADC Summit will be held in Maputo, Mozambique, on 17 and 18 August, 2012.

 

The objectives of the Save the SADC Tribunal Campaign are:

 

  1. To prevent the SADC Heads of State from curtailing the powers of the SADC Tribunal

  2. To ensure that they approve and implement the recommendations of WTIA’s report.

 

The campaign aims to ensure the SADC Treaty and Protocol are not changed at the August 2012 SADC Summit - or at subsequent Summits in the future.  This will enable the SADC Tribunal to once again function according to requirements set out in the SADC Treaty.  

 

Without an international regional court there is little hope of effective accountability being able to take place within the region.

 

 

Contact details for SADC Tribunal /…

THE SADC TRIBUNAL CONTACT DETAILS

The Southern African Development Community Tribunal
P.O.Box 40624
Cnr Bahnhoff Street and Robert Mugabe Avenue
Turnhalle Building
Windhoek
Namibia
Tell: +264-61-383 600

 

Registrar:  The Hon. Justice Mankhambira C.C. Mkandawire (Malawi)
Email:registrar@sadc-tribunal.org

http://www.sadc-tribunal.org

 

PA to Registrar:  Ms Sophia Nikanor 

E-mail:  snikanor@sadc-tribunal.org

© 2015 by Zimbabwe Farmers Speak

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Micah 6 v 8

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