The African Commission on Human and Peoples’ Rights (the Commission) agreed to hear a case brought by two Zimbabwean farmers, Luke Tembani and Ben Freeth, who allege that an August 2012 decision by the Southern African Development Community (SADC) Summit of Heads of State or Government (SADC Summit) to dissolve the SADC Tribunal (Tribunal) violates the African Charter on Human and Peoples’ Rights (African Charter). The Commission’s opinion will determine whether, under the African Charter and international norms, any of the fifteen heads of state within the SADC Summit, each named as a respondent in the complaint, violated their obligations in their roles creating policy direction for the SADC. Thus before the case is even heard, it sets a new precedent for individuals to name multiple heads of state as respondents before an international body.
After Zimbabwe refused to comply with a decision in Mike Campbell Ltd. and Others v. Zimbabwe, in which the Tribunal found in favor of farmers’ land rights, the SADC Summit suspended the Tribunal in 2010 to review its role. Although the SADC’s Committee of Ministers of Justice recommended reappointing and replacing the Tribunal judges, the SADC Summit decided in May 2011 to continue the suspension and, later in 2012, to permanently dissolve the current Tribunal. The SADC Summit has asked the Ministers of Justice to write a new mandate for a SADC Tribunal that would only hear cases between States regarding the interpretation of the SADC Treaty and SADC protocols. The previous Tribunal jurisdiction also encompassed the ability to hear cases brought by individuals concerning violations of human rights. Freeth’s father and Tembani filed the complaint in Mike Campbell under the old mandate but have yet to receive compensation owed from the ruling because the Tribunal’s suspension also affected enforcement of previous decisions.
Concurrently, other interested parties in the region are also seeking to challenge the dissolution of the Tribunal. Two nongovernmental organizations, the Southern African Litigation Centre (SALC) and the Pan African Lawyers Union (PALU), submitted a request, under Article 4 of the Protocol to the African Charter on the Establishment of an African Court on Human and Peoples’ Rights (the Protocol) to the African Court on Human and Peoples’ Rights (the Court) for an advisory opinion regarding the legitimacy of the dissolution process. The NGOs make their claim under the African Charter, the SADC Tribunal Protocol, the SADC Treaty, the UN Principles on the Independence of the Judiciary, and the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law. With these documents, the Court would decide if the actions taken by the SADC Summit violated the rights to justice, to effective remedies, and to an independent judiciary. Although an advisory opinion is not binding, the organizations hope that the SADC institutions will take into account an advisory opinion issued by the Court since the SADC, as a subregional economic community (SEC), should make an effort to coordinate policies with the African Union (AU), a stated goal of the AU in Article 3 of its Constitutive Act. As stated in the SADC Treaty, the SADC means to take into account the AU Constitutive Act including the goals listed therein. However, the Court would likely delay stepping into the issue because under Article 4 of the Protocol, the Court is barred from issuing an advisory opinion if there is a case pending before the Commission regarding the same matter, such as the case brought by Tembani and Freeth.
If the petitioners are successful in either the case pending before the Commission or the request before the Court, the resulting opinion could potentially affect both the southern African region’s rule of law system as well as the strength of SECs’ adjudicatory mechanisms across the African continent. In dissolving the Tribunal and denying any subsequent adjudicatory body a human rights mandate, the SADC Summit undermined the progress the fifteen Member States of SADC have made in developing an effective rule-of-law system and providing redress for individuals who otherwise depend on inadequate domestic courts. Supporting the SADC Tribunal would also help the Commission or the Court to show support for the other similarly organized SEC tribunals in Africa, such as the Economic Community of West African States (ECOWAS) Community Court of Justice, thereby strengthening the rule of law in the region.