A critical assessment of the legal effect of disbanding the Southern African Development Community Tribunal

This thesis presents a panoramic exploration of the legal effects of the suspension and subsequent dismantlement of the South African Development Communities (SADC) Tribunal after the regional court’s watershed ruling against the Zimbabwean government land reform. The classic case of Mike Campbell (Pty) Ltd and Another v Minister of National Security Responsible, the SADC Tribunal ruled that the government of Zimbabwe should stop continuing with the invasion of white farmers in Zimbabwe and those whose farms had been confiscated should be compensated. Zimbabwe contested the jurisdictional competence of the tribunal to preside over the expropriation of white farms. Their reason was based on Protocol under which the tribunal had been established, and the amendment of the SADC Treaty. The government of Zimbabwe argued that the Protocol was not binding upon them, in that it has not yet been ratified by the requisite two third of the total membership. The primary argument concerns the government of Zimbabwe’s denial to be bound by the rulings of the SADC Tribunal. Article 21 (b) of the SADC Protocol on Tribunal forms the basis of their ruling because this provision gives the tribunal the powers "to develop its own jurisprudence, having regard to applicable treaties, general principles and rules of public international law" which are the sources of law. Out of three presiding judges, two concur that the tribunal have jurisdiction to preside over human rights matters and they made reference of art.21 of the Protocol on SADC Tribunal. The other judge gave a dissenting view and he indicated that the tribunal could not legislate on behalf of SADC member states by developing its own jurisprudence. The amendment of the Constitution of Zimbabwean to allow the government to effect changes by inserting Amendment 17, which allowed the expropriation of land without compensation, and these changes also, denied the property owners right to seek legal redress to local courts. These changes affected the fundamental clauses of the constitution and such changes are tantamount to constitutional dismemberments. The ramifications of the suspension of the tribunal is that individuals and legal persons within SADC region have no regional court to ventilate their complaints when they are denied a legal redress by local courts. This study dissects the legal implication of the dismantlement of the SADC tribunal and its negative impact towards protection of human rights, democratic values and the rule of law in the SADC region. The study provided significant recommendations to the SADC Heads of State and Government particularly the resuscitation of the SADC Tribunal.