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Maputo - Justice ministers of the Southern African Development Community (SADC), meeting in Maputo, are overwhelmingly in favour of reactivating the SADC Tribunal, which was suspended in 2010.
Spokesperson Pedro Nhatitima (head of the Mozambican Legal Aid Institute), said yesterday the great majority of SADC member states “recognise the need to revive the tribunal as soon as possible”.
Zimbabwe was the only member to object to the SADC tribunal.
For, according to Nhatitima, the majority of the ministers recognised that the tribunal “has legal existence” – that is, it was properly constituted and had legitimate jurisdiction.
The suspension of the tribunal followed the Zimbabwean government’s refusal to implement a tribunal ruling, in favour of several dozen white commercial farmers, which found that parts of the “fast track” land reform were illegal.
Nhatitima explained that the justification for non-compliance with the tribunal ruling was that the government of President Robert Mugabe denied that the court had “legal existence” because the SADC protocol on the tribunal had not been ratified.
But the other member states hold that ratification of the protocol is quite unnecessary, because the tribunal was incorporated into the SADC Treaty of 1992. The treaty states that rulings by the tribunal are “final and binding”.
Acceptance of the treaty is a requirement for membership of SADC, and in 2001 the article about the tribunal was quite uncontroversial.
“SADC needs a tribunal. It makes no sense for a country to be a party to the treaty but not to the tribunal,” Nhatitima pointed out.
He said the ministers of justice were proposing that the heads of state approve a new protocol on the tribunal. But cases that were pending when the tribunal was suspended will be heard under the old protocol, and only new cases would be heard under the new one.
Zimbabwe had complained that the land reform was a matter of state sovereignty and therefore outside the jurisdiction of international courts. So the ministers are proposing that in a new protocol, it will be stated that citizens may only appeal to the SADC Tribunal once they have exhausted all national avenues for redress.
Nhatitima admitted that in fact this was already the case, “but it shall be made explicit”.
But what could be done, if Zimbabwe, or any other member state, defied a ruling from the tribunal? Nhatitima said that was something the annual heads of state summit would have to decide. In principle, the summit could decree sanctions against a member which disobeyed the tribunal.