Four judges of the Southern African Development Community (SADC) Tribunal have said the decision by the SADC summit to ‘dissolve’ the Tribunal was illegal and in bad faith, notes a Business Day report. It says that in a scathing letter to SADC’s executive secretary, the judges said a ‘close reading’ of the communiqué from the SADC summit of heads of state last month in fact showed ‘beyond doubt’ that the Tribunal had not just been suspended but ‘also dissolved altogether’. The decision was a ‘drastic action taken on political grounds’ – to avoid having to take action against Zimbabwe for refusing to enforce the Tribunal’s judgments, they said. According to the report, the Tribunal came under intense pressure after it gave judgments against the government of Zimbabwe on its land redistribution process. Zimbabwe refused to enforce the Tribunal’s orders and challenged its legality. In their letter, the judges said the original decision to suspend the operation of the Tribunal applied only to new cases. But last month’s communiqué ‘reiterated’ a moratorium on the Tribunal hearing both new and pending cases. These were ‘weasel words’, the judges wrote. The communiqué actually amounted to a dissolution of the Tribunal. SW Radio reports that the judges also questioned why the SADC council of Justice Ministers expressed concern about the role and jurisdiction of the Tribunal, instead of deciding the appropriate action to take against Zimbabwe for non-compliance with the Tribunal’s judgments. The SADC Tribunal Rights Watch group has since endorsed the judges’ statement, echoing their concerns that the move sends ‘the worst possible signal not only to the SADC region but also to potential investors, donors and the international community at large: that the highest authorities of SADC at best pay only lip service to the principles of human rights, democracy and the rule of law and do not scrupulously adhere to them’.

Full Business Day report

Full SW Radio report


Legal commentator Carmel Rickard takes up the astonishing decision on her blog, A Free State of Mind. Quoting from a letter to the SADC secretariat, Rickard says the judges speak of the ‘illegal and arbitrary decisions’ taken ‘in bad faith’ by the SADC Council of Ministers and by the summit of heads of states and government last month. The judges, including the former president of the court, say the decisions were clearly illegal and ultra vires. Rickard points out that the judges make it clear that they believe the unprecedented action taken against them resulted from the Tribunal’s ruling in the Campbell cases against the Zimbabwe Government. ‘We never expected … the Minister of Justice/Attorneys-General or the Council or Summit in 2011 to take, at long last, appropriate action against Zimbabwe for non-compliance with the judgments of the Tribunal of 2008 and 2010 for the simple reason that, every time the issue has been discussed, a stratagem has always been devised to defer consideration of the matter. But still, we did not expect or foresee this time the new drastic action taken on political grounds which at a stroke does away with the intractable problem of taking action against Zimbabwe: the complete dissolution of the Tribunal in its present form, with its current jurisdiction and membership…’

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