The SADC Tribunal must be reinstated

FRITZ H DAUSAB WRITES:The promotion and protection of human rights is an international obligation joining all nations of the world.This is encapsulated in the Universal Declaration of Human Rights and in the African Charter, to name two. The protection of international human rights is the reason that the United Nations Human Rights Council was created on 15 March 2006.A further expansion in the protection of rights has been a realization that property rights of private citizens are important to their human rights. For example, arbitrary or discriminatory expropriation by a government of a house, dwelling or farm from a private citizen used as their primary residence is tantamount to a denial of dignity and livelihood and breaches that private individual’s human rights (Dr. Mthamdazo Ngwenya, 20 August 2020, Creamer Media Reporter).The language across South Africa, Namibia, Zambia and Zimbabwe just to name a few countries is expropriation in capital letters, yet there are laws and rights for everyone. Obviously, even international human rights laws only respect the law when the expropriation is of a person’s primary residence. When landlords with farms live in other countries, it in my opinion means that these farms and dwellings are not the primary residences.As such, when calls are made by Bernadus Swartbooi of LPM in Namibia, as a trained lawyer, these are the types of landlords he is referring to when referring to expropriation.The scope of the SADC Tribunal, particularly 15(1) and 15(2), represents an acknowledgement of international law within the SADC community providing individuals and corporate entities with a legal avenue to resolve disputes with state parties. This is an important guarantee that, when a violation or breach occurs, the SADC citizen can access the tribunal to adjudicate after exhausting available domestic remedies. SADC history is littered with violence, discrimination and various abuses of citizens at the hands of their governments. The ability to escalate these disputes to a regional court is an important tool to secure human rights (Ngwenya).It is common knowledge that many courts in SADC are dysfunctional when it comes to resolution of disputes where the government is the defendant and more so when it involves promotion and protection of human rights. The courts either take years to adjudicate, proving true the adage ‘justice delayed is justice denied’, or the judges are afraid to rule against the government or have no obvious local remedies to address injustices or breaches of contract. Observance of the rule of law is in its infancy and varies significantly amongst the countries. A functional SADC tribunal is therefore an important tool that investors can access to seek relief when local remedies fail to unlock the dispute.When listening to the judgement by Judge President Shivute about the 2019 Presidential Elections in the case between the Namibia Electoral Commission and Dr. Panduleni Itula as Independent Presidential Candidate, this was a case for a higher human rights court such as the SADC Tribunal or the African Court of Human Rights. The judge stated that even though the EVM without paper trail was wrong, there can be no rerun of the elections.By suspending the SADC Tribunal in 2012, the SADC states altered a fundamental design pillar and eliminated protections for private individuals and investors.Dr. Ngwenya states that civil society organizations and human rights lawyers were so aggrieved by the decision that court papers were filed in various African countries, which included the African Court of Human and People’s Rights, challenging the legitimacy of the decision.The Constitutional Court of South Africa ruled that the decision by former President Jacob Zuma to sign on behalf of South Africa on a SADC decision suspending the tribunal was unconstitutional, irrational and unlawful. This amounted to denial of justice and human rights protections and the court ordered that the president must withdraw South Africa’s signature.The high court in Tanzania also ruled in a similar vein against the actions of the Tanzanian government.In a bold move, President Cyril Ramaphosa withdrew South Africa’s signature at the SADC summit in Dar es Salaam in August 2019. This has renewed calls for SADC citizens to mobilise and challenge their governments and demand the full reinstatement of the tribunal. (Ngwenya)Namibian civil society never challenged the decision by SADC presidents to suspend the SADC Tribunal, even though President Pohamba had no right under Namibian Constitution to do so.The ‘old boys club’ ran by liberation struggle parties such as ZANUPF, ANC, MPLA and Swapo in Namibia is the main reason for the arbitrary fiasco when examining our judiciary; the flagrant disrespect by the Speaker and private security when man-handling MPs; and the refusal by the governing party to follow instructions by our courts.These are all cases that can be heard by the SADC Tribunal.

The SADC Tribunal must be reinstated

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Republikein 2025-07-09

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The SADC Tribunal must be reinstated

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