Human Rights, SADC and the SADC Tribunal1

By Tazorora TG Musarurwa LLB, LLM2

Introduction
Human rights have become an integral part of our daily lives that it is rather impossible to
find a single person who cannot tell you something about what they think human rights
are. They have also become such a topical subject that it is no longer plausible to simply
dismiss them as a Western phenomenon that has no business in Africa.

The history of the Southern African region, like most parts of Africa, has been a call for
human rights. In pre-colonial times, the majority of people were denied basic political
rights such as those pertaining to voting and fair trials. Black people’s movements were
restricted by laws. In South Africa, the infamous Group Areas Act of 1950 divided the
nation into areas by race and denied people of colour from building homes or establishing
businesses in certain areas that were designated as ‘white areas’.

The region has also witnessed civil wars where the rules of war have taken a back seat
and thousands of innocent civilians have been massacred by either of the sides fighting
those wars. Furthermore, women have been subjected to a subservient role in their own
lives and continue to be subject to the whims and caprices of their male counterparts.

There is without doubt an endless list of human rights abuses that have been inflicted on
people within this region historically and that we continue to suffer up to this very day.

In spite of these considerations it is important to ponder whether SADC had a human

rights agenda when it was established or at any point thereafter. Is SADC not simply a
body meant to increase trade within the region and make it easier for its citizens to travel
amongst the member states? If this be the case, then the Tribunal should surely be just a
dispute resolution body meant to adjudicate upon some technical disputes that may arise
within this integration process.

With all the above in mind, this short paper looks at what place human rights have within
SADC’s agenda and whether the Tribunal has any business involving itself in the human
rights terrain.

The SADC Treaty

When the ten founding member states met in Windhoek, Namibia in 1992 to establish
SADC by signing the SADC Treaty, they made it clear that human rights were part of the
integration agenda.3 This is acknowledged by the preamble which states in part that

1
The views expressed in this paper do not necessarily reflect those of the Tribunal. The author
writes in his personal capacity.
2
Legal Professional Assistant SADC Tribunal (Registered legal practitioner, Zimbabwe).
“MINDFUL of the need to involve the people of the Region centrally in the process of
development and integration, particularly through the guarantee of democratic rights,
observance of human rights and the rule of law (my emphasis)

Article 49(c) further provides that member states shall act in accordance with the
principles of ‘human rights, democracy and the rule of law’.

The SADC Treaty does not go further to expand on these principles of human rights.
However, if one is to consider the SADC protocols individually and in toto, a human
rights track can certainly be discerned. For instance, SADC has protocols on Corruption,
Combating Illicit Drugs, Education and Training, Fisheries, Forestry, Gender and
Development amongst others.4

A close look at most of these SADC protocols shows that they actually reflect
commitments that are in UN human rights instruments. For example there is a UN
Convention Against Corruption that espouses the same principles as the Protocol Against
Corruption.

One can also draw parallels between the UN Convention on Economic, Social and
Cultural Rights and the Protocol on Education and Training and the Protocol on Culture,
Information and Sports. The UN Convention on the Elimination of all forms of
Discrimination Against Women (CEDAW) may also be compared with the new Protocol
on Gender and Development.

From the foregoing it is difficult to shy away from the fact that there is indeed a human
rights agenda that is reflected within SADC law. It is, however, unfortunate that most of
these protocols have not been ratified by some member states.

The Campbell case

The case of Mike Campbell & Others v Zimbabwe5 has undoubtedly brought the Tribunal
more in to the public sphere. In this case the applicants sought an interdict from the
Tribunal against Zimbabwe which had marked their farms for compulsory acquisition. In
essence they were challenging Zimbabwe’s land reform programme and laws arguing
that they violated principles of the SADC Treaty.

Agents for Zimbabwe argued that the Tribunal had no jurisdiction to entertain the matter
as the SADC Treaty only had human rights as principles but did not have the actual
standards upon which Member States’ conduct could be measured by. They further

3
SADC was founded by Angola, Botswana, Lesotho, Malawi, Mozambique, Namibia
Swaziland, Tanzania, Zambia and Zimbabwe.
4
See Ruppel and Bangmwabo, ‘The SADC Tribunal: A legal analysis of its mandate and role in
regional integration’ Monitoring Regional Integration in Southern Africa Yearbook Vol 8 2008
213.
5
SADC (T) Case No. 2/2007.
argued that were the Tribunal to borrow these standards from any other jurisdiction, it
would be tantamount to legislating on behalf of member states.6

The Tribunal dismissed these arguments and ruled that it could entertain the matter as
Article 21(b) of the Tribunal Protocol allowed it to have regard to “applicable treaties,
general principles and rules of public international law” it could look elsewhere where
the Treaty was silent.

In essence the Tribunal ruled that Zimbabwe’s land reform programme as provided for by
S16B(3) of the Constitution of Zimbabwe denied the applicants access to justice, was
racially discriminatory and violated international law in its failure to provide for
compensation. In so doing it was a violation of the SADC Treaty.

Correctness of the Campbell decision

Whether any decision can be considered to be correct or not will obviously depend on the
commentator. Criticisms on the Campbell decision include the argument that the
principles which were relied upon by the Tribunal are not legally enforceable obligations.
The question therefore is whether the Tribunal should have found the principle of human
rights as creating rights and duties between the parties.

This argument (propounded by the Government of Zimbabwe) is not without merit as

human rights come with much controversy even in situations where they are clearly
provided for. As such, in a scenario where the rights are not provided for there is a lack of
clarity on what are the obligations of states and what reciprocal rights accrue to citizens
in terms of SADC law. It can be argued that this is a classic situation where the law is
being made in retrospect. Such a situation is undesirable as law should generally be
legislature driven and not judicially driven.

However, an equally important consideration is whether the Tribunal should sit back and
relax while member states wantonly violate commitments that they made within the
SADC Treaty. It can also be argued that the principles of the Treaty are its pillars and
destroying such pillars is tantamount to destroying the entire Treaty in itself. It is
therefore the duty of the Tribunal to act as a stop-gap measure to ensure that such
violations do not occur up until such a time when the member states establish a
framework which delineates the parameters of the principles.

In the East African Court of Justice, the court was also caught in similar circumstances in
the landmark case of James Katabazi and 21 Others v Secretary General of the East
African Community and the Attorney General of the Republic of Uganda7. Here the Court
conceded that although Article 27 did not give it a specific human rights jurisdiction it
would ‘not abdicate from exercising its jurisdiction of interpretation under Article 27(1)
merely because the Reference includes allegations of human rights violation.’ As such

6
P 23 of the judgment.
7
Unreported suit, Reference No. 1 of 2007, Judgement of the EACJ delivered on 1 November 2007.
the Court found a violation of the principle of rule of law and as such a violation of the
EAC Treaty.8

It has been suggested that the East African Court, while waiting for the snail pace
expansion of its jurisdiction to include human rights, should subsume those rights that are
provided for in the African Charter on Human and Peoples’ Rights. The same argument
could be made for the SADC Tribunal as all fifteen members of SADC are also state
parties to the African Charter. The Afro-centered nature of the African Charter makes it
an ideal basis to create legally enforceable obligations for SADC member states in the
absence of a SADC bill of rights.

Conclusion
As human rights are an integral part of national constitutions in all SADC member states,
it is difficult to comprehend a scenario where a regional judicial organ would ignore such
human rights in its interpretation of the Treaty. In any case, it has been shown that human
rights are a core part of SADC business as is reflected by the preamble to the Treaty, the
principles of the treaty and the SADC protocols. The Tribunal has done well in following
a precedent set by the East African Court of Justice that although not having a specific
human rights jurisdiction it could interpret the Treaty in a manner that ensures member
states do not violate the principles of the Treaty. SADC member states should now take
the lead and develop a human rights protocol. At the end of the day it is citizens that must
benefit from regional groupings and leaders should not be seen as fighting against the tide
of human rights.

Conservative positivists may thus have problems with the approach taken by the
Tribunal, but those who believe in a judicially active bench that stands to promote,
protect and respect human rights will appreciate the contribution made by the Tribunal to
human rights jurisprudence.

8
See also Solomon T. Ebobrah ‘Litigating human rights before sub-regional courts in Africa:
prospects and challenges’ 17 RADIC (2009) 82. And also Christpher Mbazira ‘The human rights
jurisdiction of the East African Court of Justice – The James Katabazi case’ Occasional Paper of
the East African Law Society.