Mugabe and Zuma slammed for crippling SADC tribunal

While most of South Africa – and the continent – continues to warm to the so-called ‘Ramaphosa spring’, former President Jacob Zuma is adjusting a new life in the wilderness and, no doubt, spending considerable time with his legal team. In the latest dent to Zuma's credibility, a full Bench of the Gauteng High Court (Pretoria) has declared that he acted unlawfully and irrationally when signed a 2014 protocol which effectively weakened the powers of the tribunal, the last-resort body for human rights protection for SADC citizens. The court found that it had infringed the right of South Africans by agreeing to limit the jurisdiction of the tribunal to disputes only between member states 'and no longer between individual citizens and states, without consultation'. Legalbrief’s Carmel Rickard notes that the move was an attack on the rule of law and on the powers of the court. By signing the new protocol to replace the tribunal with a toothless body, the leaders had effectively endorsed the decision of Zimbabwe’s previous government to take away the court’s powers. The court was ruling on an application by the Law Society of SA, as well as a number of litigants who had won their cases at the tribunal but who were unable to take their matters any further because the tribunal was suspended on the initiative of former Zimbabwean President Robert Mugabe. The decision now goes to the Constitutional Court for ratification as it concerns 'behaviour of the President'. The Law Society's action was sparked by the SADC Lawyers Association which called for its members in all countries affected to challenge the suspension of the tribunal in their local courts.

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The judges also pulled no punches in blaming Mugabe for the debacle: On Zuma’s own version to the court, Judges President Dunstan Mlambo and Nomonde Mngqibisa-Thusi said his signature ‘signalled SA’s participation in a conspiracy initiated by the Mugabe regime to undermine an essential SADC institution’s ability to enforce a fundamental SADC objective: compliance with the rule of law and human rights’. It was clear that actions conflicting with the provisions of the Constitution were ‘self-evidently unconstitutional as well as illegal and … liable to be set aside by a court’. Zuma’s signature to the protocol that undid the original terms of the tribunal treaty ‘was unlawful in the sense of being unconstitutional and is therefore liable to be set aside’. The tribunal’s emasculation by way of its suspension was ‘similarly in conflict with the Founding Treaty and SA’s constitutional obligations’.

Judgment

Announcing the order of the court, Mlambo said: ‘It is declared that the first respondent’s (Zuma's) participation in suspending the SADC Tribunal and his subsequent signing of the 2014 Protocol on the Tribunal is declared unlawful, irrational and, thus, unconstitutional,' notes a report in The Star. He added: ‘The applicants (Law Society, Zimbabwean farmers Luke Tembani, Ben Freeth, Richard Etheridge, Chris Jarretas, Zimbabwean agricultural estates Tengwe Estates and France Farm as well as the first and second amicus curiae) are entitled to the costs of the application, including costs of two counsel, which includes the costs pertaining to the intervening application.’

Full report in The Star

Legalbrief reports that the CEO of the SADC Lawyers Association, Stanley Nyamanhindi, welcomed the outcome, saying it put the spotlight on the question of whether political leaders could act together to 'detract from the vested rights of the people and unilaterally remove access to justice'. He said the 'veil needed to be lifted' on the disbanding of the tribunal. 'We must ask ourselves, why do our leaders want to be less accountable and try to get away with violations of human rights?’ Willie Spies, legal representative for AfriForum, which helped some of the litigants in the case, said the 277m people of the SADC region needed to be aware of the 'critical importance (of such tribunals) in protecting the rights of all citizens'. The damning judgment was welcomed by the Law Society of SA (LSSA) as a victory for all South Africans. LSSA co-chairpersons Walid Brown and David Bekker said, as noted by the court, by signing the protocol, the President 'severely undermined the crucial SADC institution, the tribunal'. 'It detracted from SADC's own stature and institutional accountability and violated the SADC Treaty itself.' The LSSA has urged the Presidency to note the judgment and rectify this unlawful and irrational action, once the judgment is confirmed by the Constitutional Court. The LSSA, represented by Advocate Dumisa Ntsebeza SC and Advocate Tembeka Ngcukaitobi, as well as Pretoria law firm Mothle Jooma Sabdia Inc in a pro bono capacity, had teamed up with the SADC Lawyers Association and other parties to bring the matter to court.

LSSA statement