Southern African governments move to rein in international tribunal; passing judgment on Zimbabwe has led to political backlash against SADC tribunal

At a just-concluded Summit in Namibia, heads of state from the Southern African Development Community (SADC) have moved to bar the region’s dispute resolution body from hearing new claims against SADC states.

A copy of the meeting’s final communique seen by IAReporter shows that the governments have set in motion a process of amending the legal instruments that empower the tribunal to hear claims from individuals in the region.

The heads of state have also taken a decision that judges whose terms expire will not be re-nominated or replaced. The decision appears likely to hobble the tribunal, which has struggled to achieve a quorum of judges in recent months following the expiration of the appointments of certain judges.

Even if the tribunal were to achieve quorum, SADC leaders have further decreed that the tribunal should not take any new cases, or hear existing ones, until the legal instrument undergirding the tribunal is  “reviewed and approved”.

The developments signal a major diplomatic victory for Zimbabwe, which has sought to neuter the tribunal ever since the Namibia-based court ruled in 2008 that Zimbabwe had breached its SADC treaty obligations as a result of its policy of violent land expulsions.*

Review process endorsed tribunal, but heads of state opt to freeze its activities

As we reported recently**, the 2010 decision to review the operation of the tribunal had alarmed supporters of the tribunal – including local non-governmental organizations and claimants with cases before that body.

However, some groups had expressed guarded optimism more recently, when a consultant hired to review the tribunal had concluded that the tribunal acted within its legal authority when it held Zimbabwe liable for breaches of its treaty obligations. The consultant’s draft report also expressed confidence in the tribunal’s overall approach to interpreting the SADC treaty, including its legal protections that protect human rights and foreign investment.

Two sources close to the process tell IAReporter that the broad thrust of the consultant’s key recommendations were not rejected at a preparatory closed-door meeting of regional justice ministers held last month.

However, political events have since taken an abrupt u-turn, with SADC heads of state deciding this month to bar the regional tribunal from further work.

Nicole Fritz, head of the Southern African Litigation Center, a non-governmental organization that has advocated for the tribunal inrecent months, tells IAReporter that the outcome of the SADC Summit is a “major set-back”:

“The SADC Summit completely capitulated to Zimbabwe, further suspending the Tribunal until at least August 2012. That they would so act is almost unthinkable given that they had commissioned an independent review … which is clear that the Tribunal is lawfully established, that it requires no amendment and which recommended that judges be appointed with immediate effect so that the Tribunal might resume operations.”

It now remains to be seen whether the SADC governments amend the relevant legal instruments so that only states – rather than individuals – are permitted to bring claims in future before the regional tribunal.

IAReporter will offer further reporting in the coming days.