ACHPR unable to intervene over SADC Tribunal - AfriForum

Commission holds that it is powerless because Articles 7 and 26 of the African Charter refer only to national courts

African Commission criticizes SADC states but powerless to reverse closure of Human Rights Court

Zimbabwean farmers learnt for the first time on March 1 that the African Commission on Human and People Rights (ACHPR) had, between October 22 and November 5 last year, rejected their challenge of the decision to exclude any individual from access to the SADC Tribunal.

The exclusion of individual access to the SADC Tribunal - the only international law and human rights regional court in southern Africa - had been effected by a decision initially in May 2011 on behalf of the 14 member states. The decision was confirmed in August 2011 at the Maputo Summit by the Southern African Heads of State.

The denial of access for all 250 million SADC citizens to the Tribunal followed a series of awards by the Tribunal against the Government of Zimbabwe. The awards granted damages to torture victims and declared Zimbabwe's land seizure programme in conflict with international law and human rights instruments.

Zimbabwe defied the awards. Its own High Court, however, accepted the jurisdiction of the Tribunal, and the awards were enforced by, in turn, the High Court of South Africa, the Supreme Court and the Constitutional Court.

In a last-minute effort to avoid the sale of Zimbabwean Government property in South Africa in execution, Harare in December paid up the amounts which had been awarded by the Tribunal.

The decision by the SADC Summit to revoke recourse by SADC citizens to the Tribunal was challenged in a complaint lodged with the ACHPR against all 14 Southern African Heads of State and their governments.

The applicants, Luke Tembani (76), a dispossessed and now destitute Zimbabwean commercial farmer, and Ben Freeth (45), formerly of Mount Carmel farm, had been among successful applicants in the SADC Tribunal.

They asked for an order that would restore access by citizens and ensure the SADC Tribunal would continue to function in all respects as established by Article 16 of the SADC Treaty.

The applicants submitted that closing down the SADC Tribunal immediately deprived all 250 million SADC citizens of the right to present their cases before the Tribunal when justice systems failed them in their own countries.

The effect is that the Tribunal is now prevented from hearing cases where governments had committed human rights violations and domestic courts had failed the victims.

The SADC Heads of State, Tembani and Freeth contended in their submissions, had been prompted by the ulterior purpose of preventing the enforcement of human rights and international law, and had acted in breach of international law obligations imposed under the African Charter.

Application admissible

In its ruling conveyed on March 1 to the Zimbabwean farmers, the ACHPR refused an attempt by Mauritius to reopen an earlier determination.

In October 2012, the ACHPR had deliberated on the issue in its 52nd Ordinary Session and found the application to be admissible. An invitation to put arguments on the merits was given and duly submitted by the applicants' lawyers.

ACHPR criticizes SADC states, holds collective liability and condemns denial of access to own courts

In its ruling now delivered to the Zimbabwean farmers, the ACHPR deplores (paragraph 129) the failure by the 14 member states to address any submissions to it on the merits, as opposed to the objections on technical issues by Tanzania and Mauritius already.

The ACHPR contrasted this with what it describes as the "compelling and completely uncontested arguments that the respondent states are collectively responsible for the acts and omissions that constitute the alleged violations of Articles 7 and 26 [of the Charter]." (paragraph 126).

The ruling also pointedly holds that "[a] denial of the right of access to a national judicial forum will amount to a definite and inexcusable violation of Article 7(1)(a) of the Charter".

The SADC Tribunal had held that one of the three reasons why the Zimbabwean land seizure programme violated Zimbabwe's international law and human rights obligations was precisely because it denied the right to challenge the measures in the national courts of Zimbabwe.

Thus implicitly, the ACHPR has held Zimbabwe's suspension of jurisdiction of its own courts to determine challenges to government measures to violate Zimbabwe's obligations as a member of the African Union to uphold the Charter.

But ACHPR holds itself powerless

But the ACHPR held that it was powerless because Articles 7 and 26 of the African Charter refer only to national courts - and the SADC Tribunal is a regional court.

It concludes that "The Commission does not find any Charter obligation on the respondent states to guarantee the independence, competence and institutional integrity of the SADC Tribunal" (paragraph 144 of decision).

Response by SADC Tribunal Rights Watch

 "The ACHPR's criticism of the SADC governments, its refusal to revisit their technical defences and dismissal of the attempt to deny collective liability are all welcomed. We also applaud the clear finding that members of the African Charter may not deny people access to their own courts.

But its reasoning that the African Charter does not include within its protection courts not known at the time the African Union was formed cannot be accepted. International human rights instruments like the Charter are, on the strongest authority, to be interpreted purposively, and to enhance rights, not diminish them.

The use of the word "national" in Articles 7 and 26 was to emphasise that each nation's courts had to remain open to its citizens. Its function was not to treat differently such other form of court as might in time evolve, as happened with the SADC Tribunal.

To hold otherwise is an absurd literalism. It is also a manifestation of originalism - treating rights instruments as historically frozen documents - a way of thinking now generally rejected.

"When we are barred by Zimbabwean law to access Zimbabwean courts or when the Zimbabwean courts fail us, is it not guaranteed by the African Charter that we should have access to justice? We have to question the role and purpose of the African Charter and the African Commission on Human and People's Rights if this fundamental human right is not guaranteed," said Freeth, who is also the SADC Tribunal Rights Watch spokesperson.

"It is significant that President Mugabe [90], who was the driving force behind the closure of the SADC Tribunal in the wake of landmark rulings against his government, can be both the Vice-Chair of the respondent states as well as the Vice-Chair of the African Union Heads of State who had to consider the Commission decision," Freeth continued.

"This is a great injustice for Africans," said Tembani. "We ask the world and anyone who cares about human rights, justice, the rule of law and property rights in Africa to help protect Africans from this injustice which threatens the development of the region."

"I am a black African, a family man and a committed Christian who built a church and school for the community on my successful commercial farming enterprise but I had no recourse to justice when my farm was repossessed, leaving me and my family destitute," Tembani said.

"I was devastated when the SADC leaders allowed the Zimbabwean government to disregard my judgment in the SADC Tribunal, and then close the court," he added.

"The African Union through the African Commission has made me despair that justice will come - so that Africans can take their rightful place in our world and stop us from being beggars on our resource-rich continent," he continued.

"Prior to 2000 when the Zimbabwean land invasions began, our country was able to feed itself and export to other countries in Africa and abroad.

"Since then we have been reliant on food aid and today the international community needs to feed more than 2.2 million rural Zimbabweans at a time when its resources are stretched beyond capacity. I fear for our people and I fear for the future of my children and our grandchildren," concluded Tembani.

Statement issued by Willie Spies, Legal Representative, AfriForum, and Ben Freeth, Spokesman for SADC Tribunal Rights Watch, March 5 2014

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