Maputo - The SADC Heads of State and Government Ordinary Summit, which started in Maputo on August 17 was expected to decide the future of the bloc’s Tribunal after the Council of Ministers rejected a report by regional Ministers of Justice and Attorneys-General on the way forward, The Southern Times established.
The report was presented to the SADC Council of Ministers on the morning of August 16.
However, it was rejected because it replicated standing objections to the Protocol that gave birth to the Tribunal, its ratification and the jurisdiction of the regional court.
The Council of Ministers resolved to present its own overview of the Justice Ministers’ report to Heads of State and Government while the Justice Ministers would do the same.
Regional leaders were expected to then make their own decision, which would be final.
The SADC Council of Ministers had tasked the SADC Secretariat to compile a report capturing concerns and objections to the ministers’ document for presentation to Heads of State and Government.
Reliable sources said the Council felt the ministers’ report had not addressed concerns raised prior to a May 2011 Summit decision that the Tribunal’s legal instruments and jurisdiction be reviewed.
The Committee of Justice Ministers was tasked to review and amend relevant SADC legal instruments.
This was to defer consideration of Zimbabwe’s refusal to comply with controversial Tribunal rulings until concerns regarding the court’s operations were addressed.
Zimbabwe submitted its own objections to Council, sources who attended the meeting said.
“The decision taken by Council vindicated Zimbabwe’s position. Council spoke very clearly vindicating Zimbabwe’s position.
“Justice Ministers are supposed to be lawyers advising the ministers, but the problem is Justice Ministers took a position which is not sustainable and tenable,” one source said.
The Justice Ministers met in Maputo two weeks ago and came up with a Revised Protocol on the Tribunal.
Among their submissions was Article 55 which declares: “All actions, decisions, judgments and other administrative acts undertaken pursuant to the 2000 Protocol will remain valid and in force and that all rights and obligations assumed under the old Protocol prior to its repeal are saved.”
The article gives the Tribunal jurisdiction to hear and pass judgment on cases that were unfinished before the court’s suspension.
Zimbabwe reportedly objected to Article 55 of the revised protocol, as well as Article 57, which deals with entry into force of the Revised Protocol.
The country also objected to provisions in Article 56, which sets out procedures for further amendments of the Revised Protocol.
“The committee’s introduction of transitional provisions is in clear violation of the decision of Summit to defer the issue of Zimbabwe’s non-compliance with the Tribunal’s rulings and furthermore undermines the decision of Summit to suspend the operations of the Tribunal and not to reappoint judges.
“The suggestion that a reconstituted Tribunal under a Revised Protocol with redefined jurisdiction, a different composition and new judges can take over old and part heard cases is irrational and illogical,” Zimbabwe reportedly argued.
There are indications that the revisions were a result of heavy lobbying by the Southern Africa Litigation Centre, the SADC Lawyers Association and the International Council of Jurists.
All these bodies have in the past never hidden their disdain for the administration in Harare and are often accused of seeking to protect the interests of those opposed to President Robert Mugabe’s rule.
Zimbabwe argued that the Committee of Ministers of Justice was tasked to come up with new structures and a mandate for the Tribunal, and not to give a reconstituted Tribunal jurisdiction over unfinished cases.
Zimbabwe further argued before the Council that the 2000 Protocol was never entered into force, as it was not ratified by two-thirds of the membership of the regional bloc as required by the SADC Treaty.
Further, Zimbabwe is yet to ratify the Protocol, which is subject to Parliamentary approval.
“The manner in which the process of bringing into force the 2000 Protocol has been manipulated and is an unacceptable violation of the norms and principles of customary international law and in the case of Zimbabwe, the provisions of its constitution.
“The sustained attempts to uphold the decisions of the Tribunal at all costs in the face of all these irregularities have strengthened the suspicion that the procedures of SADC are being manipulated in order to create an institution that would target Zimbabwe’s land reform programme,” Zimbabwe reportedly argued before the Council.
Another source said Tanzania and Namibia strongly backed Zimbabwe’s position. Zimbabwe’s argument also won backing from Lesotho, Botswana and South Africa.
That strong support saw the Council agreeing to refer the matter to Heads of State and Government.
“What is emerging is that SADC must negotiate a new Protocol. A Tribunal is relevant but it must be properly constituted and have jurisdiction agreed through a Protocol that is ratified by the majority,” the source said.
“Zimbabwe submitted that the suggestion that a Protocol can enter into force without ratification by member states and then bind even those member states that have not ratified it, is a violation of customary international law.
“It would be highly undesirable not only for individual states but for the development of international law if a state were to find itself bound by provisions to which it did not consent to in accordance with its own constitutional provisions.
“Important safeguards of state sovereignty and international law would be compromised.”
Zimbabwe, sources said, added that the new Protocol on the Tribunal and any other protocols for that matter, should comply with the principles of customary international law through adoption at Summit, signature by a required threshold and ratification by a clear majority before entering into force.
Once ratified, the instrument should bind those member states that have ratified it and it should have provision for renunciation and withdrawal.
Sources said that Council did agree to extend the contracts of the Tribunal’s staff.