General explanation
The SADC Tribunal was established in 1992 by Article 9 of the SADC Treaty as one of the institutions of SADC, although, members of the Tribunal were only appointed during the SADC’s Heads of State or Government Summit in 2005. Under international law the Tribunal is considered an international court just like the European Court of Justice or the East African Court of Justice. The SADC Tribunal was created to consider disputes between States, individuals, organizations or institutions, staff of the SADC Secretariat and the Community and SADC. The seat of the SADC Tribunal is in Windhoek, Namibia.
The Court has ten members, appointed from SADC Member States, of whom five are “regular” members who will sit on the Tribunal in most cases. Should one of them be unavailable, the president of the Court may invite a member from the pool of members to serve on the Tribunal. The judges serve a five-year term, which is renewable.
The tribunal was suspended in 2010 after the Zimbabwean government refused to implement a ruling relating to Zimbabwe’s land reform programme in the case of Mike Campbell (Pvt) Ltd and Others v Republic of Zimbabwe SADC (T) (case no 2/2007, 28-11-2008). When the Zimbabwean government refused to comply with the order and questioned the tribunal’s jurisdiction and powers to enforce decisions, the tribunal consulted the SADC Summit of Heads of State and Government, which instead decided on a review of the tribunal’s role, functions and terms of reference. The summit also placed a moratorium on the tribunal receiving any new cases and on hearing any part-heard matters until the review had taken place and was approved. It also decided not to renew the terms of the tribunal’s judges.
The issue of the suspension of the tribunal was discussed during the SADC Summit held on 17th August 2012 in Maputo, Mozambique. New members of the tribunal were selected and they were tasked with the responsibility of interpreting the SADC Treaty and its Protocols.
Mandate
According to Article 16 of the Treaty, the main objective of the Tribunal is to ensure adherence to and the proper interpretation of the SADC Treaty and its subsidiary instruments as well as adjudicating on disputes.
The Member States of SADC and of the SADC Tribunal are Angola, Botswana, the Democratic Republic of Congo, Lesotho, Madagascar, Malawi, Mauritius, Mozambique, Namibia, South Africa, Swaziland, Tanzania, Zambia, Zimbabwe.
Jurisdiction
The SADC Tribunal has jurisdiction over all the disputes arising from the interpretation and application of the SADC Treaty, its Protocols and other subsidiary instruments. It also has jurisdiction over any matter connected with other treaties and agreements concluded by SADC members among themselves or within the framework of the Community and which confer jurisdiction on the Tribunal. The Tribunal does not have a specific human rights jurisdiction but certain provisions of the SADC Treaty allude to human rights which would fall under the purview of the Tribunal. The Court can hear matters arising from the SADC Treaty, the Protocol establishing the Tribunal, all Protocols that form part of the Treaty and instruments adopted by the Summit, the Council and any institution and organ of the Community. It can also give advisory opinions upon the request of the SADC Heads of State and Government and the Council of Ministers. Complainants can file cases in the working languages of the SADC – English, French and Portuguese.
Members of the Tribunal work part time and they have an average of five sittings per year.
How to access the SADC Tribunal
The Tribunal has ruled that it does have jurisdiction to entertain human rights matters as one of the principles of SADC is the observance of human rights, democracy and rule of law. On this basis, it is possible to bring a violation of human rights before the Tribunal.
Parties taking cases to the Tribunal must exhaust local remedies first or must show that they are unable to proceed through national courts pursuant to Article 15 of the Protocol on Southern African Development Community (SADC) Tribunal.
Any person (natural or moral) can bring a matter before the Tribunal alleging a violation of SADC law by a Member State. Such a person needs not be a citizen of a Member State.
Decisions of the Tribunal are final and binding.
How IHRDA engages with the SADC tribunal
On IHRDA’s caselaw analyser (www.caselaw.ihrda.org) relevant instruments and decisions from the SADC tribunal are published and made accessible free of charge.
