Has the SADC Tribunal been Salvaged by the South African Constitutional Court and the Tanzanian High Court?
It has been over a decade since the Southern African Development Community Tribunal (SADC Tribunal) was suspended by the SADC Heads of State and Government in August 2010. Several attempts by human rights bodies to resuscitate the tribunal have provided some form of relief. From one standpoint, the Tanzanian High Court has ruled that it will continue to receive cases that fall within the ambit of the SADC Tribunal until such time that the Tribunal’s suspension is lifted. Concerning the 2014 Protocol on the Tribunal in the Southern African Development Community (2014 Tribunal Protocol) which limits the jurisdiction of the SADC Tribunal to inter-state disputes, the Tanzanian High Court found that the protocol was not yet ratified and therefore it was premature for it to deal with issues related to it. Instead, it held that the legislature was better placed to deal with the matter. From another perspective, the South African Constitutional Court ordered the former President of South Africa, President Jacob Zuma, to inter alia withdraw the country’s signature from the 2014 Tribunal Protocol but did not open the door to adjudicate future disputes falling within the scope of the SADC Tribunal. The main purpose of this paper is to establish whether the decisions of the South African Constitutional Court and the Tanzanian High Court have any effect on the status of the suspended SADC Tribunal and if so, to what extent that legal effect applies. To achieve the said aims, the paper will critically discuss, compare, and contrast the aforesaid decisions
which dealt with the same issues but produced different outcomes. The discourse will conclude by advocating for civil society to lobby SADC Heads of State to lift the suspension on the SADC Tribunal, including respecting the principle of separation of powers where a treaty has been signed but not ratified.
Keywords: SADC Tribunal; revival; access to justice; South Africa; Tanzania; separation of powers