Speaking at a workshop in Namibia, the former-President of the SADC Tribunal, Ariranga Pilay, made it clear that he viewed the decision by SADC leaders to suspend the Tribunal until at least August 2012 while a review is undertaken as illegal and ultra vires - and that its demise would result in dire consequences for the rule of law and human rights in southern Africa.
In a hard-hitting speech, Pilay highlighted some crucial points, including:
"Whether the original Tribunal has been suspended or dissolved, the fact of the matter remains that it has been killed off and is defunct and is to be replaced by a new Tribunal after August 2012, with a new jurisdiction and a new membership.
...The decision of the SADC Summit [to suspend the Tribunal] is clearly illegal and ultra vires. Summit has no power to restrict the jurisdiction of the Tribunal, not least because it is subject to the Tribunal’s jurisdiction. Summit does have, of course, the power to amend the SADC Treaty and the Protocol but the proper procedures have not yet been followed.
...The decisions of Summit [to not reappoint or replace members of the Tribunal] are also illegal and ultra vires in that they have been taken to make sure that the original Tribunal is completely paralysed in its core activities, namely the hearing of any new or pending case from August 2010 until well after August 2012. The Tribunal has become an empty shell which consists, however, of sixteen members of staff and a Registrar!
...It is significant that both the ECOWAS (Economic Community of West African States) Court and the East African Court of Justice specifically provide in their treaties for access by private individuals to their respective Courts. Moreover, if there is a common purpose to have a Tripartite Agreement concluded between SADC, the East African Community and Common Market for Southern and Eastern Africa (COMESA), there should at least be similar laws forming part of Community law!
We, the former President and members of the Tribunal consider that these three decisions of Council endorsed by Summit are not only extraordinary in the circumstances but are also illegal and ultra vires and in contravention of Articles 4(c) and 6(1) of the SADC Treaty in that they violate the principles of “human rights, democracy and the rule of law” and are “likely to jeopardise the sustenance of its (SADC) principles, the achievement of its objectives and the implementation of the provisions of the Treaty”. We consider that these three decisions have also been made in bad faith.
...Moreover, these three decisions of Council and Summit send 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 only pay lip service to the principles of human rights, democracy and the rule of law and do not scrupulously adhere to them.
...We must not give up hope but must fight on and intensify our efforts to ensure that the Ministers of Justice/Attorneys General in their review process DO NOT:
(1) repeal the principles of human rights, democracy and rule of law, which are justiciable and enforceable: and
(2) deny access to the Tribunal to individuals who want to bring cases against their States on those grounds. It should be noted that 80 per cent of applications before the Tribunal concern cases of individuals against States. Moreover, people are at the centre of human rights and human rights treaties are ratified by States to benefit people."
Read the full speech here and then join the debate