WHILE dispute rages over when and how SA’s President Jacob Zuma will leave presidential office, even his international record over support for human rights has been questioned via unprecedented scrutiny in the courts .
Zuma’s agreement that the crucial SADC Tribunal – last bastion of individual rights and freedoms for millions of people living in the region – should be suspended and then replaced by a body with no right to hear the pleas of individuals, was the focus of a hearing in the high court, Pretoria, on 5 February.
First applicant in the case is the Law Society of South Africa, whose members challenge Zuma’s actions in agreeing to the 2010/11 suspension of the Namibia-based SADC tribunal and then putting his signature to its replacement, a body that may not consider any complaints brought by individuals against members states. Their case is also brought against SA’s ministers of justice and of international relations and cooperation.
The law society says Zuma’s actions are unconstitutional and in breach of South Africa’s international obligations, and they ask the court to make a declaratory order to that effect.
They say there was no “rational basis” for him to have supported the decision to suspend the tribunal. As for his signature of support for the tribunal’s replacement, its effect is to deprive South Africans of their entitlement to access the tribunal. Though these actions took away important rights, however, there was no public consultation before Zuma agreed to strip away these protections.
The other six applicants – successful parties at the tribunal who have now been deprived of the remedies ordered by its judges – put up a stark history of the dispute:
The tribunal held that Zimbabwe’s interference with the jurisdiction of the Zimbabwe courts constituted a human rights violation. In response Zimbabwe began “a contempt offensive against the tribunal”, ignoring its decisions. The tribunal found, repeatedly, that Zimbabwe had defied its orders. A number of those whom the tribunal’s orders protected died or were severely assaulted, and stripped of property.
Under the SADC treaty, the response should have been to refer Zimbabwe’s continued defiance to the SADC heads of state to impose sanctions against Zimbabwe and the tribunal continued to order that the situation be referred to the heads of state. But “instead of sanctioning Zimbabwe, the SADC heads of state sanctioned the tribunal. This they did by effectively terminating the tribunal’s human rights jurisdiction. Thus, human rights, access to court and the rule of law itself was abrogated. This is the core of the case.”
The applicants point out that tribunal’s decisions were widely hailed by the legal community across Africa and beyond, with Zimbabwe “singular in its disdain”. Even Zimbabwe’s own high court “openly rebuked” the way the Mugabe government repudiated the tribunal and its jurisdiction. A consultant, appointed by the heads of state at Zimbabwe’s insistence, reviewed the tribunal and its work. This “backfired spectacularly”, say the applicants, because the independent expert’s report fully backed the tribunal, its work and its jurisdiction, as well as recommending that its jurisdiction be retained and the tribunal itself “strengthened”.
The SADC ministers of justice and attorneys-general agreed with the expert’s report and supported the recommendations. But the tribunal was nevertheless suspended, to pacify Mugabe.
Zuma’s signature could not be connected to the promotion of any of the principles of “democracy, human rights and the rule of law”, repeatedly said by SA’s own constitutional court to be the essential elements of the constitution. The “irrationality’ of his signature was thus “self-evident”.
It was also arbitrary: he joined in signing away the tribunal’s protective jurisdiction contrary to the advice of the SADC ministers of justice and attorney-general and against the recommendation of the independent expert appointed to review it.
Looking carefully at the results, the applicants ask how the human rights aspect of the SADC treaty is to be enforced, now that the tribunal has been stripped of this function. Zimbabwe had already “ousted its domestic courts’ jurisdiction to entertain certain human rights violations,’’ and the 2014 protocol “completes the ouster of human rights jurisdictions.” Zuma either failed to realise this or condoned it.
Argument of the first amicus, the Southern African Litigation Centre, focuses on the deprivation of access by individuals under the 2014 protocol, and the fact that this runs contrary to the trend in regional and international courts. There is a strong theme in these bodies – from the East African Court of Justice and the court of justice of the Common Market for Eastern and Southern Africa to the European Court of Justice and the Inter-American system of justice – to provide a “safety-net” for those whose domestic systems are unwilling or unable to protect these rights adequately.
The promotion of a SADC tribunal that “unjustifiably and unfortunately denies access to justice for individuals (who previously had the right to access a regional tribunal) will make it an international anomaly”.
The second amicus, the Centre for Applied Legal Studies, argues that there is a clear and growing international practice to ensure “mandatory public participation” before a state finalizes a treaty. CALS quotes Kenya extensively as an example of where public participation is required through both legislation and via judicial decisions.
Zuma’s legal team, however, says the case is “largely unprecedented in South Africa” in that it asks the court “to enter the heartland of the executive’s exclusive competence in foreign policy and international relations”. Their response to the case against Zuma is to cite the separation of powers, among other arguments, and to say that the court has very limited rights to intervene when the president’s powers in international relations are involved.
They also argue that the case was brought too late and without an adequate explanation for its lateness in relation to the 2010/11 suspension of the tribunal. And it was brought too early in relation to the second part of the dispute because the 2014 protocol has yet to be ratified by parliament. Zuma’s signature on the protocol was not binding, they argue, “but merely signified that SA would consider whether it wished to ratify” it. Government had not yet even decided whether it wanted to put the new protocol before parliament to seek its approval.
The case is crucial – ultimately destined for the Constitutional Court whatever the outcome – but its timing is ironic seeing that Zuma could be out of office before judgment is given. Nevertheless, his critics will see the case as one more illustration, if it were needed, that human rights and the rule of law – at home and abroad – have not been an essential consideration during his term of office. And it may well not be the end of the matter of the tribunal in the region: significantly, law societies in other SADC countries have backed the application, and have launched similar legal steps in their own countries, something commended by the applicants in their argument.