(NEWZIMBABWE) SADC tribunal judges say court's dissolution 'illegal'

COMMENT - Lying and deceiving the SADC tribunal in Namibia was what the 'documentary' "Mugabe And The White African" was about.

SADC tribunal judges say court's dissolution 'illegal'
28/06/2011 00:00:00
by Franny Rabkin I Business Day

FOUR judges of the Southern African Development Community (SADC) Tribunal have said a decision by the regional trade bloc to "dissolve" the court was illegal and in bad faith.

In a scathing letter to SADC’s executive secretary Tomaz Salamao, the judges said a "close reading" of the communique 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.

Last month, a communique from SADC’s summit announced an extension of a moratorium on the hearing of new cases at the tribunal. The moratorium had been in effect since last August.

The summit also decided not to reappoint or replace the tribunal’s 10 judges — which means it will remain inoperative until at least August next year.

One of the functions of the tribunal is to hear cases between citizens of SADC countries and their governments when the citizens have exhausted all domestic legal avenues.

But 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. Justice Minister Patrick Chinamasa called it a "bush court".
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 communique "reiterated" a moratorium on the tribunal hearing both new and pending cases.

These were "weasel words", the judges wrote. What the communique actually amounted to was a dissolution of the tribunal. This was "clearly illegal," said the letter signed by the tribunal’s president, Mauritius Chief Justice Ariranga Pillay and justices Rigoberto Kambovo, Onkemetse Tshosa and Frederick Chomba.

The justices said that, without amending the SADC treaty and protocol, the summit had no power to restrict the tribunal’s jurisdiction or overrule the protocol. The summit’s decision not reappoint or replace the tribunal’s judges made sure that the tribunal was "completely paralysed in its core function" and was also illegal.

They also questioned the point of the extensive independent review, commissioned by the summit last year, "instead of deciding about the appropriate action to take against Zimbabwe for noncompliance with the tribunal’s judgments".
This was "an important issue which has always been ducked and postponed since 2009 for reasons best known to themselves".

When the tribunal’s work was first suspended, this was done pending an independent six-month review of the tribunal’s "role, functions and terms of reference".

But after the review was completed, Sadc justice ministers and attorneys-general "questioned anew its fundamental elements" and then initiated a new, "partisan", review.

They said: "So this extraordinary deed was done at the expense of the tribunal and its judges who are both easily expendable, in breach of the principles of human rights, democracy and the rule of law, as a result of which no action needs to be taken against Zimbabwe!"

The decisions sent "the worst possible signal" to the Sadc region and to potential investors and the international community, they said.

The judges also challenged the fact that they had not been reappointed, saying they had a legitimate expectation that they would be and were not given any reasons why they were not. They had not even been officially informed of the decision, they said.
They said the SADC council and summit should "pay fair and adequate compensation for the prejudice, both material and moral".