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The SADC Tribunal perspectiveon enforcement of judgments:state support and cooperationMCC Mkandawire aa Registrar, SADC TRIBUNALPublished online: 13 Sep 2010.

To cite this article: MCC Mkandawire (2010) The SADC Tribunal perspective onenforcement of judgments: state support and cooperation, Commonwealth LawBulletin, 36:3, 567-573, DOI: 10.1080/03050718.2010.500852

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Commonwealth Law Bulletin

Vol. 36, No. 3, September 2010, 567–573

ISSN 0305-0718 print/ISSN 1750-5976 online© 2010 Commonwealth SecretariatDOI: 10.1080/03050718.2010.500852http://www.informaworld.com

The SADC Tribunal perspective on enforcement of judgments: state support and cooperation

MCC Mkandawire

Registrar, SADC TRIBUNAL

Taylor and FrancisRCLB_A_500852.sgm10.1080/03050718.2010.500852Commonwealth Law Bulletin0365-0718 (print)/1750-5976 (online)Original Article2010Taylor & Francis363000000September 2010M C CMkandawirekamkandawire@yahoo.co.uk

The SADC Tribunal is one of the youngest regional courts. In August 2008, theCouncil approved a new organizational structure that would see the Tribunalincrease its staff complement from 9 people to 47 people over a period of fiveyears. However, the Tribunal still has a number of challenges that lie ahead ofit. As the case load increases, the budget of the Tribunal will need to beconstantly reviewed. A more important challenge that is faced by the Tribunalis the issue of enforcement or execution of its judgments. Judicial proceedingsare pointless if a litigant cannot have a judgment enforced. There is a role fromthe Commonwealth family to play in this regard.

Introduction

I have been requested to make a presentation on the topic ‘Enforcement ofJudgments: State Support and Cooperation’. This is such a very important subjectmatter from my sub-regional grouping, as currently there has been a lot of debateon the enforcement of decisions of the Southern African Development CommunityTribunal (SADC Tribunal).

Before I further delve into the subject matter, may I thank the CommonwealthSecretariat for making it possible that this meeting should materialize and hope thisrelationship with them is a long term one; and like us, they will continue to investin our regional judicial organs.

The importance of these meetings must be viewed in the broader sense ofcontinental integration and regional institutional integrity. Coming from theAfrican continent, let me confess here that Africa needs strong judicial institutionsif we are going to pass on any good that we have at present to the next generation.The divisions of our continent and its weak institutions have contributed to a cycleof poverty that still afflicts us today.

The coming together of African countries to form Regional Economic Commu-nities (RECs) such as the East African Community (EAC), Economic Communityfor West African States (ECOWAS) and the Southern African DevelopmentCommunity (SADC) has been a step in the right direction.

Various institutions have been formed in these RECs, which include organssuch as Courts of Justice and Tribunals. As custodians of these judicial bodies, thequestion we have to ask ourselves is how we can use them to contribute to Africa’s

*Email: kamkandawire@yahoo.co.uk

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integration agenda and how we can make these institutions stronger than thepersonalities that hold them and anyone who may appear before them.

The SADC Tribunal

The SADC Tribunal is one of the youngest regional courts. The Tribunal is aninstitution of SADC and is established by Article 9 (g) as read with Article 16 ofthe Treaty establishing the Southern African Development Community (the SADCTreaty). The mandate of the Tribunal pursuant to Article 16(1) of the Treatystipulates that the Tribunal shall be constituted to ensure adherence to the properinterpretation of the provisions of the Treaty and subsidiary instruments, and toadjudicate upon such disputes as may be referred to the Tribunal.

In terms of Article 15 of the Protocol on Tribunal, the jurisdiction of the Tribu-nal shall extend to disputes between Member States, and disputes between naturalor legal persons and Member States; and disputes between employees of SADCand the Community (SADC). The Tribunal may also render advisory opinions uponrequest by the Summit or Council of Ministers. However, no natural or legal personshall bring an action against a Member State unless they have first exhausted allavailable remedies or are unable to proceed under domestic jurisdiction. Decisionsof the SADC Tribunal shall be final and binding.

The SADC Tribunal became operational only in 2005. Although the Treaty wassigned in 1992, the Tribunal could not be operationalized. Pursuant to Article 4 ofthe Protocol on Tribunal, the Summit of Heads of States and Government, on18 August 2005, appointed the Members (Judges) of the Tribunal. On 18 Novem-ber 2005, the Tribunal building was inaugurated in Windhoek, Namibia and thiswas also followed by the swearing in of its Members. On 22 November 2006, theRegistrar of the Tribunal was appointed and sworn in. This marked the beginningof earnest operations of the Tribunal.

Thus in August 2007, the Tribunal received its first case. The case of ErnestFrancis

Mtingwi v SADC Secretariat

1

was the first case to be lodged with theTribunal. For this reason it has a historic significance. This case was followed bythe case of

Mike Campbell (Pvt) Ltd & Another v The Republic of Zimbabwe

.

2

Thereafter, the legal flood gates of the Tribunal opened because the case of MikeCampbell was followed by four other intervener applications that were consoli-dated into one case which is now commonly known as

Mike Campbell and 78Others v The Republic of Zimbabwe

.

3

Since then, the Tribunal has steadily received cases. Currently statistics showthat in 2007, the Tribunal received three cases and all are completed.

In 2008, the Tribunal received 14 cases of which 11 are completed. In 2009, theTribunal received seven applications of which four have been completed. In 2010,the Tribunal has received one case which will be heard in June 2010. You willtherefore notice that although the SADC Tribunal is a new institution, it has beenvery busy with cases. It is also worth noting that out of the 25 cases, six are against

1

SADC (T) 1/2007.

2

SADC T 2/2007.

3

SADC T 2/2007.

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the SADC Secretariat and involve employment disputes. The other 19 are againstMember States.

The SADC Treaty

When the 10 founding Member States met in Windhoek, Namibia in 1992 to estab-lish SADC by signing the SADC Treaty, they made it clear that human rights werepart of the integration agenda. This is acknowledged by the Preamble which statesin part that:

4

MINDFUL of the need to involve the people of the region centrally in the process ofdevelopment and integration, particularly through the guarantee of democratic rights,observance of human rights and the rule of law. (emphasis added)

Article 4 (c) further provides that Member States shall act in accordance with theprinciples of ‘human rights, democracy and the rule of law’.

It is therefore not amazing that the Tribunal in the

Mike Campbell

case has heldthat it does have jurisdiction to entertain human rights matters as one of theprinciples of SADC is the observance of human rights, democracy and rule of law.On this basis, it is possible to bring a violation of human rights before the Tribunal.

Tribunal outlook

The SADC Secretariat and the Council of Ministers have been very cooperativewith the Tribunal and are also determined to strengthen it as an institution. InAugust 2008, the Council approved a new organizational structure that would seethe Tribunal increase its staff complement from nine people to 47 people over aperiod of five years.

In 2009, the Tribunal recruited seven new members of staff, namely two LegalResearchers, two Translators, one Assistant Finance Officer, one Personal Assis-tant to the President and one Receptionist/Typist. The Council has also approvedthe engagement of a consultant to do job evaluation, grading and skills audit. Aconsultant has already been identified and will commence work in April 2010.Furthermore, in February 2009, Council approved the upward review of allowancesof the members with effect from 1 April 2009. These efforts by Council arelaudable.

Challenges

However, the Tribunal still has a number of challenges that lie ahead. As the caseload increases, the budget of the Tribunal will need to be constantly reviewed.

In the same light, there is need for capacity building to allow the Tribunal andits staff to handle matters in the manner expected for an international court. TheTribunal also remains largely unknown to Members of the SADC Community.

4

SADC was founded by Angola, Botswana, Lesotho, Malawi, Mozambique, Namibia,Swaziland, Tanzania, Zambia and Zimbabwe.

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Although it has generated a keen interest amongst academics and members of thelegal fraternity, it is still a distant cloud for SADC citizens.

Enforcement or execution of its judgments/decisions

A more important challenge that is faced by the Tribunal is the issue of enforce-ment or execution of its judgments. Judicial proceedings are practical and if alitigant cannot have a judgment enforced, then there is no point of having judicialproceedings in the first place. Thus HE Justice Ariranga Govindasamy Pillay, Pres-ident of the SADC Tribunal, had this to say during the book launch on ‘MonitoringRegional Integration in Southern Africa Year Book Volume 8, 2008’.

The Tribunal can make significant contribution towards regional integration if, aspertinently observed by the authors of chapter 8 of the book I am about to launchtoday, its decisions are properly enforced at the national level and if they serve asguidelines for national courts when deciding on questions that might also be relevantat the national level. This in turn enhances the harmonization of SADC relevantjurisprudence. (emphasis added)

Enforcement of judgments of the SADC Tribunal has now been a subject ofwide debate in the region. This has mainly arisen from the decision of the SADCTribunal in the case of

Mike Campbell and 78 Others v The Republic ofZimbabwe

.

5

In this case the applicants brought a matter against the Respondentswhich had marked their farms for compulsory acquisition.

In essence, they were challenging Zimbabwe’s land reform programme andlaws arguing that they violated principles of the SADC Treaty. The Tribunaldeclared that Zimbabwe’s land reform programme as provided for by S16 B(3) ofthe Constitution of Zimbabwe denied the applicants access to justice, was raciallydiscriminatory and violated international law in its failure to provide for compen-sation. In so doing, it was a violation of the SADC Treaty. The Tribunal thenordered that:

(1) the Republic of Zimbabwe should recognize the lawful ownership by theapplicants of their properties in Zimbabwe;

(2) the Republic of Zimbabwe should refrain from taking any steps to evictthem from these properties;

(3) in the case of three of the applicants who had already been evicted by thetime of the Tribunal’s judgment, the Tribunal ordered that those three bepaid compensation in amounts which the Tribunal did not specify. Thisdecision was made in November 2008.

The legal framework in relation to enforcement of decisions of the Tribunal isfound in the Protocol on Tribunal. Article 32 of the Protocol on Tribunal provides:

1. The law and rules of civil procedure for the registration and enforcement offoreign judgments in force in the territory of the Member State in which the judg-ment is to be enforced shall govern enforcement.

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SADC (T) 2/2007.

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2. Member States and Institutions of the Community shall take forthwith allmeasures necessary to ensure execution of decisions of the Tribunal.

3. Decisions of the Tribunal shall be binding upon the parties to the dispute inrespect of that particular case and enforceable within the territories of the MemberStates concerned.

4. Any failure by a Member State to comply with a decision of the Tribunal may bereferred to the Tribunal by any party concerned.

5. If the Tribunal establishes the existence of such failure, it shall report its findingto the Summit for the latter to take appropriate action.

Having received the judgment in their favour, the applicants in the Campbell casetook it to the Republic of Zimbabwe in compliance with Article 32(1)(3) as readwith Rule 74 of the Protocol on Tribunal. In May 2009, the applicants came backto the Tribunal pursuant to Article 32(4) of the Protocol on Tribunal.

The Tribunal again found that the Republic of Zimbabwe had failed to complywith the final ruling of the Tribunal. It is important to mention here that prior to thefinal decision of November 2008, the Tribunal in December 2007 and March 2008had granted each of the applicants a series of interim orders which interdicted andprohibited the Republic of Zimbabwe from in any way interfering with the rightsof the applicants. There was no compliance and in July 2008, pursuant to Article32(5), the matter was referred to the Summit. As I write this article,

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this matter isnot yet resolved as the Summit has not yet taken appropriate action. The Summit isawaiting professional advice from the Ministers of Justice and Attorneys-General.

It is however important to note that whilst the matter is awaiting the Summit’sdirection, the Republic of Zimbabwe challenged that it does not recognize theTribunal since Zimbabwe had not ratified the Protocol on Tribunal. This challengeraised many legal issues and has been argued in the High Court of Zimbabwe. Inits recent decision, the High Court of Zimbabwe in the case of

Gramara (Private)Limited and Another v The Republic of Zimbabwe

,

7

decided that the Republic ofZimbabwe is bound by the jurisdiction of the Tribunal. It is however worth notingthat in this very decision, the court has declined to register the decision of theSADC Tribunal hence the issue of enforcement remains an illusion. It is howeverworth noting that the SADC Tribunal’s decision in the Campbell case has beenrecognized in the Republic of South Africa in the case of

Crawford Lindsay VonAbo and The Government of the Republic of South Africa and Four Others

.

8

It isalso important to note that the High Court of South Africa has also registered theSADC Tribunal decision in the

Campbell

case in the recent application in the caseof

Louis Karel Fick and Two Others against the Government of the Republic ofZimbabwe

.

9

This therefore means that although the Tribunal decisions are currentlynot enforceable in the Republic of Zimbabwe, they are enforceable in neighbouringSouth Africa.

6

March 2010.

7

Case no 5483/09.

8

North Gauteng High Court, Pretoria, Case no 3106/07.

9

Case no 77881/2009.

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As already pointed out, the way forward lies with the Summit of Heads of Stateor Government.

Cooperation by Member States

It is very clear from the SADC legal instruments that the primary responsibility toenforce and execute the SADC Tribunal’s decision and rulings lies with MemberStates. This is buttressed by the well-rooted principle of international law

pactasunt sevanda

, ie obligations undertaken in international or regional treaties orconventions must be honoured in good faith. It is also a fact that the bulk of inter-national law and its enforcement are based on consent and good faith among states.

As already pointed out, the Genesis of SADC, is the Treaty of SADC itself andone expects that each Member State of SADC looks at the SADC Treaty as thegrand norm of this regional grouping. Fortunately, the SADC Treaty in Article 6has general undertakings. Article 6(b) provides: ‘Member States shall co-operatewith and assist institutions of SADC in the performance of their duties.’ One wouldtherefore expect that Member States, through their domestic institutions especiallythose in the justice sector such as offices of the Attorneys-General and theJudiciary, would assist the SADC Tribunal so that its decision are enforced.

Related to this is the role of the Summit. Article 32(5) gives Summit unfetteredpowers to take appropriate action. The Summit is the highest institution in theorganization of SADC. Moreover, Article 33 which deals with sanctions gives theSummit discretion as to what sanction to impose on a Member State.

The role of the Commonwealth

One big question which any legal scholar would ask is whether the Commonwealthcan play any role in ensuring that States cooperate in enforcing decisions of theseregional courts/tribunals. The Commonwealth has got a number of internationalinstitutions which operate in an autonomous way. Amongst them are the following:

The Commonwealth Magistrates’ and Judges’ Association (CMJA)

This Association can play a very pivotal role in training judicial officers so thatthey appreciate the roles of regional courts and how international and regional lawfinds its place in the domestic sphere.

The Commonwealth Parliamentary Association

The oversight role that this associations plays in domestication of international lawis of vital importance. It should therefore be sensitized on the need to harmonizecommunity law with domestic law.

The Commonwealth Lawyers’ Association

It is important that this association should also take on board training programmesrelated to enforcement of decisions of these courts/tribunals.

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The Commonwealth Secretariat

Ministers of Justice and Attorneys-General have a critical role to play in ensuringthat States respect their international obligations. It would thus be important toinclude during the Commonwealth Law Ministers Meeting a discussion on thechallenges facing regional courts and inviting representatives of regional courts inan observer status.

Conclusion

In the light of the above, it can be observed that there is need for Member States tocooperate if decisions of these regional courts or tribunals are to be effective.

Note on contributor

The Hon Justice MCC Mkandawire is Registrar of the Southern African DevelopmentCommunity Tribunal. He is a Judge of the High Court of Malawi, currently on secondmentto the SADC Tribunal. He is also a Commissioner of the International Commission ofJurists (ICJ) and a Council Member of the Commonwealth Magistrates’ and Judges’Association (CMJA).

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