SA ruling victory for international law

The  of South Africa’s Constitutional Court is perhaps a fitting eulogy for the now defunct Southern African Development Community (SADC) Tribunal.

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July 25th, 2013

The  of South Africa’s Constitutional Court is perhaps a fitting eulogy for the now defunct Southern African Development Community (SADC) Tribunal. Finding that a decision of the SADC Tribunal against Zimbabwe is legally enforceable in South Africa, Chief Justice Mogoeng Mogoeng paid homage to SADC and the Tribunal and the rationale behind their establishment, when he found that Zimbabwean owned property in Cape Town can be sold to satisfy a costs order issued against Zimbabwe by the Tribunal:

“For the right or wrong reasons, or a combination of both, Africa has come to be known particularly by the western world as the dark continent, a continent which has little regard for human rights, the rule of law and good governance. Apparently driven by a strong desire to contribute positively to the renaissance of Africa, shed its southern region of this development-inhibiting negative image, coordinate and give impetus to regional development, Southern African States established the Southern African Development Community (SADC) with special emphasis on, among other things, the need to respect, protect and promote human rights, democracy and the rule of law

To ensure that no SADC Member State is able to undermine the regional development agenda by betraying these noble objectives with impunity, a regional Tribunal (Tribunal) was created to entertain, among other issues, human rights related complaints particularly by citizens against their States.”

Although this decision comes after the suspension of the , which came largely at Zimbabwe’s insistence, it will find relevance beyond Zimbabwe and SADC. The Court affirmed the importance of international and regional treaties and courts in promoting human rights and observance of the rule of law, and that non-compliance by one state can, in certain circumstances, be remedied in another.

Mogoeng CJ, placing premium on international law, found that the Constitution requires South Africa “to honour our international agreements and give practical expression to them” and that access to South Africa’s courts must be generous especially when approached to enforce orders from international courts “stemming from human rights or rule of law violations provided for in treaties that bind South Africa”.

Whilst the outcome is to be welcomed, and the general thrust of the Court’s reasoning is sound, the decision will require some reading between the lines to discern the exact legal principles that underpin why and when the SADC Treaty (or any international treaty for that matter) can be directly invoked in South Africa’s courts. Nevertheless it sets an encouraging precedent.

Zimbabwe, SADC and decisions of the Tribunal

Although the Tribunal decision to be enforced is only a costs order in the amount of R112 780, this decision speaks generally to legal principles applicable to the status and domestic application of international treaties and enforcement of judicial decisions emanating from international and regional courts.

The Court answered a number of important questions in this regard: Did the SADC Tribunal have jurisdiction to hear the case in which it made its costs order; Is the SADC Treaty enforceable in South Africa despite not being enacted into domestic law; Does Zimbabwe have immunity; and can decisions of international and regional courts can be enforced in the same way that judgments of foreign national courts can?

The Court found that Zimbabwe’s argument that the SADC Tribunal did not have jurisdiction when it heard the case was without merit. Holding that Zimbabwe’s signing of the SADC Protocol and subsequent amending Protocols meant that the Tribunal had jurisdictional competence over Zimbabwe at all material times. Furthermore, by submitting itself to the jurisdiction of the Tribunal, Zimbabwe’s immunity argument fell away because it constitutes a waiver by Zimbabwe of its right to rely on its sovereign immunity from the jurisdiction of South African courts to register and enforce decisions made against it by the Tribunal.

Zimbabwe also argued that because South Africa has not domesticated the SADC and Tribunal Protocol, having only signed them, their provisions cannot be enforced. Here it would have been instructive if the Court explored this argument. The issue of when treaties become law in a country is an age old debate that speaks to the principles of monism (signed treaties automatically become law) and dualism (requiring domestic enactment of treaties). Courts often justify a refusal to apply treaty law domestically on the dualist argument. It also raises questions as to when a treaty or agreement should be self-executing. However the Constitutional Court, adopting a no nonsense approach, found that that the relevant SADC protocols obligated South Africa to do “whatever is legally permissible to deal with any attempt by any Member State to undermine and subvert the authority of the Tribunal … particularly when the rights provided for in those agreements … [are] similar to those provided for in our Bill of Rights, are sought to be vindicated.”

The right invoked and relied on was the right of access to courts. The Constitutional Court, adopting a generous interpretation in respect of the content of this right found that it includes the right to an effective remedy, without which the “right of access to courts would remain an illusion”.

Therefore article 32 of the Tribunal Protocol which requires member states to take “all measures necessary to ensure execution of decisions of the Tribunal” and that “laws and rules of civil procedure for the registration and of foreign judgments” should govern the enforcement of Tribunal decisions, the Constitutional Court found that to refuse to enforce Tribunal decisions would unduly restrict the right of access to courts that both SADC and South Africa recognise, and that pursuant to SADC law South Africa can extend to SADC citizens, where appropriate.

Because South Africa has a common law practice to deal with the enforceability of foreign judgments the Court ruled that foreign judgments should include not only decisions of national courts in other countries but decisions of international and regional courts so as to “ensure that lawful judgments are not to be evaded with impunity by any State or person in the global village” The Court therefore developed the common law in manner that gives effect to South Africa’s international law and treaty law obligations.

Ironically, the only forum in which Zimbabwe could potentially have challenged the Constitutional Court’s ruling would have been this very Tribunal that Zimbabwe has campaigned so tirelessly to shut down.

Unfortunately this decision comes after the SADC Summit decision of August 2012 disbanding the Tribunal and declaring that a new Tribunal Protocol be adopted, one which will see individual access by aggrieved citizens taken away. Disappointingly, this is a decision supported by South Africa, and perhaps indicative of an unwillingness on the part of the South African government to see those rights it values and protects at home being afforded to the citizens of Southern Africa.

However it is still encouraging to see the South Africa’s judicial arm of government recognizing the authority of Tribunal decisions and enabling their enforcement thereby giving a degree of legitimacy to the Tribunal. It also demonstrates the strength of the separation of power between the executive and the judiciary in South Africa – that despite the executive’s indifference to the future of the Tribunal the country’s courts will continue to respect its judgments, and perhaps those of other courts, without falling prey to political puppetry

A decision relevant beyond Zimbabwe and SADC?

At a time when regional and international courts are coming under increasing attack and manipulation, their jurisdiction being whittled down and non-compliance becoming more frequent, support for supra national courts is in short supply. One only has to look back to the recent African Union Summit which highlights the increasing unwillingness of African state parties (more than half of Africa) to the Rome Statute to cooperate with the International Criminal Court. The African Court has failed to properly get off the ground and still does not enjoy wide continental support for individual access; and the African Commission’s decisions are often ignored. This is by no means unique to Africa, the European Court of Human Rights faces similar challenges.

The decision of the Constitutional Court is a breath of fresh air, and judicial expressions at this level and of this nature are necessary for the sustainability of these institutions.

Because adherence to international law and treaties cannot be policed, compliance and non-compliance  is often politically, not legally, motivated. The decision of the Constitutional Court however demonstrates South Africa’s judicial respect for international law and South Africa’s obligations thereunder, making them harder for South Africa to ignore. The fact that the Constitutional Court did not concern itself with the inevitable political implications of their decision is also testimony to the Court’s independence and appreciation that international law,  the treaties South Africa signs and obligations it assumes and decisions of the regional and international courts are components of the rule of law, demanding compliance at least at the national level.

Whilst this decision is likely to do little to convince SADC leaders to restore individual access to the Tribunal and provide for human rights jurisdiction, possibly having the opposite effect, perhaps it will encourage SADC’s citizens to reinvigorate their fight to save the SADC Tribunal.

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