Opinion / Columnist
Without the SADC Tribunal, the regional body is practically useless!
18 Aug 2024 at 15:00hrs | Views
Let's set the scene.
Imagine a group of people decide to establish an organization for a particular cause.
They naturally lay down and agree upon their objectives, functions, operating procedures, and rules governing their operations.
Yet, in all this, they curiously fail to set up checks and balances structures that ensure that all operating procedures and rules governing their operations are strictly adhered to.
In so doing, no one in the organization is held to account should they violate any of the laid down rules.
Can such an organization seriously be expected to deliver on its mandate?
Would this not be akin to a country with laws but without any law enforcement or judicial branches?
How is it then supposed to function?
That is, in fact, the case with our own SADC (Southern African Development Community).
We have a regional body without any provisions that ensure that member states respect and adhere to agreed upon procedures and statutes.
This glaring omission and anomaly is what renders SADC a toothless bulldog - that only barks but can not bite.
As a matter of fact, the absence of such checks and balances has effectively left the organization even without the bark.
In other words, SADC is a useless talk shop - where leaders merely meet to wine, dine, and agree upon things that the organization can not enforce.
This is exactly what we will witness with the ongoing 44th Ordinary SADC Heads of State and Government Summit underway in Zimbabwe.
The gathered leaders will talk and talk - presenting all sorts of high-sounding speeches - but at the end of it all, there is no way of making sure that the resolutions reached are implemented and enforced.
Tragically, SADC operates on the principle of consensus and what is termed 'voluntary adherence or compliance'.
What this means is that member states choose to follow the rules and decisions of the organization, even though there may not be strong enforcement mechanisms in place.
As such, even if a member state deliberately chooses not to comply with anything agreed upon by SADC, there are no immediate consequences.
That is why Zimbabwe, for instance, could brazenly violate SADC's own guidelines and principles governing democratic elections during its August 2023 harmonized elections.
Yet, in spite of all these violations having been documented by the SEOM (SADC Election Observer Mission), no action was taken by the regional body.
The current SADC Summit is officially the third time regional heads of state and government have met since the heavily flawed Zimbabwe elections, but this issue has not and will not be addressed.
This is simply because the organization can not really do anything about it.
It has no authority or power to act in the event of a member state not complying with agreed procedures.
When SADC was formed in 1992, with the signing of the SADC Treaty in Windhoek (Namibia) - as a successor to SADCC (Southern African Development Coordination Conference) - regional leaders came up with a SADC Treaty.
The SADC Treaty seeks to promote sustainable and equitable economic growth, fostering regional integration and cooperation, improving the standard of living of the people of Southern Africa, and ensuring peace and security in the region.
The Treaty emphasizes the principles of sovereign equality of all member states, solidarity, human rights, democracy, and the rule of law.
However, regardless of how lovely this all sounds, SADC has no framework for ensuring that all member states abide by their own Treaty.
This then becomes particularly problematic when it comes to issues of human rights, democracy, and the rule of law - which are clearly and unambiguously stated in the Treaty and are prone to frequent violation by member states as already being witnessed in Zimbabwe.
With fraudulent elections as well as the persecution, usually through brutal violence and the weaponization of the law, of human rights defenders and opposition activists, SADC has absolutely no teeth to act.
Over the years, perceived opponents of the Zimbabwe regime have been massacred, tortured, maimed, beaten up, had their properties burnt down, and jailed on spurious charges - but no action has ever been taken by SADC.
That is how useless the body is.
However, it has not always been like that.
There was once a SADC Tribunal.
This was a regional court established by the regional body at the formation of SADC in 1992.
Its primary role was interpreting the SADC Treaty and protocols, settling disputes between member states, ensuring compliance with SADC decisions and rulings, providing legal advice to SADC organs and institutions, and promoting regional integration and cooperation.
The Tribunal's jurisdiction included: disputes between member states, disputes between member states and SADC institutions, cases referred by the SADC Summit or Council, and appeals from national courts on SADC-related matters.
The SADC Tribunal had real teeth - and, in so doing, SADC could bite.
However, in 2011, the SADC Summit decided to suspend the Tribunal's operations, and in 2014, it was formally dissolved due to an outcry by the repressive Zimbabwe regime.
This was after the court ruled that the forceful grabbing of land from white farmers was illegal and that all dispossessed farmers had to be compensated.
In the absence of the SADC Tribunal, members states, such as Zimbabwe, have willful violated the Treaty and various protocols - such as on human rights, democracy, and the rule of law as well as the holding of democratic elections - with impunity.
As much as there has been some talk by member states of the reintroduction of the SADC Tribunal, this will not be in the same format as the disbanded one.
The envisioned new SADC Tribunal will have practically zero teeth.
If established, its revised mandate will solely focus on the interpretation of SADC instruments, disputes between member states, and offer advisory opinions
The new SADC Tribunal will not have authority take any action against a deviant member state.
In other words, this new SADC Tribunal will merely be window-dressing and a façade that the organization now has teeth.
Nonetheless, facts are stubbing, and the truth is that SADC is a useless body and will always be useless as long as the original SADC Tribunal is not brought back.
What is the point in having an organization that can not even enforce its own rules?
Why bother formulating a treaty and protocols when members states are not compelled to follow them?
In fact, why are SADC heads of state and government currently meeting in Zimbabwe - and wasting taxpayers' money, especially in a country were half the population lives in extreme poverty - when what they agree on will not be enforceable?
The number one question, though, is: Is SADC still relevant?
Do the ordinary people of the region really need this organization?
The answer is a big NO.
© Tendai Ruben Mbofana is a social justice advocate and writer. Please feel free to WhatsApp or Call: +263715667700 | +263782283975, or email: mbofana.tendairuben73@gmail.com, or visit website: https://mbofanatendairuben.news.blog/
Imagine a group of people decide to establish an organization for a particular cause.
They naturally lay down and agree upon their objectives, functions, operating procedures, and rules governing their operations.
Yet, in all this, they curiously fail to set up checks and balances structures that ensure that all operating procedures and rules governing their operations are strictly adhered to.
In so doing, no one in the organization is held to account should they violate any of the laid down rules.
Can such an organization seriously be expected to deliver on its mandate?
Would this not be akin to a country with laws but without any law enforcement or judicial branches?
How is it then supposed to function?
That is, in fact, the case with our own SADC (Southern African Development Community).
We have a regional body without any provisions that ensure that member states respect and adhere to agreed upon procedures and statutes.
This glaring omission and anomaly is what renders SADC a toothless bulldog - that only barks but can not bite.
As a matter of fact, the absence of such checks and balances has effectively left the organization even without the bark.
In other words, SADC is a useless talk shop - where leaders merely meet to wine, dine, and agree upon things that the organization can not enforce.
This is exactly what we will witness with the ongoing 44th Ordinary SADC Heads of State and Government Summit underway in Zimbabwe.
The gathered leaders will talk and talk - presenting all sorts of high-sounding speeches - but at the end of it all, there is no way of making sure that the resolutions reached are implemented and enforced.
Tragically, SADC operates on the principle of consensus and what is termed 'voluntary adherence or compliance'.
What this means is that member states choose to follow the rules and decisions of the organization, even though there may not be strong enforcement mechanisms in place.
As such, even if a member state deliberately chooses not to comply with anything agreed upon by SADC, there are no immediate consequences.
That is why Zimbabwe, for instance, could brazenly violate SADC's own guidelines and principles governing democratic elections during its August 2023 harmonized elections.
Yet, in spite of all these violations having been documented by the SEOM (SADC Election Observer Mission), no action was taken by the regional body.
The current SADC Summit is officially the third time regional heads of state and government have met since the heavily flawed Zimbabwe elections, but this issue has not and will not be addressed.
This is simply because the organization can not really do anything about it.
It has no authority or power to act in the event of a member state not complying with agreed procedures.
When SADC was formed in 1992, with the signing of the SADC Treaty in Windhoek (Namibia) - as a successor to SADCC (Southern African Development Coordination Conference) - regional leaders came up with a SADC Treaty.
The SADC Treaty seeks to promote sustainable and equitable economic growth, fostering regional integration and cooperation, improving the standard of living of the people of Southern Africa, and ensuring peace and security in the region.
The Treaty emphasizes the principles of sovereign equality of all member states, solidarity, human rights, democracy, and the rule of law.
This then becomes particularly problematic when it comes to issues of human rights, democracy, and the rule of law - which are clearly and unambiguously stated in the Treaty and are prone to frequent violation by member states as already being witnessed in Zimbabwe.
With fraudulent elections as well as the persecution, usually through brutal violence and the weaponization of the law, of human rights defenders and opposition activists, SADC has absolutely no teeth to act.
Over the years, perceived opponents of the Zimbabwe regime have been massacred, tortured, maimed, beaten up, had their properties burnt down, and jailed on spurious charges - but no action has ever been taken by SADC.
That is how useless the body is.
However, it has not always been like that.
There was once a SADC Tribunal.
This was a regional court established by the regional body at the formation of SADC in 1992.
Its primary role was interpreting the SADC Treaty and protocols, settling disputes between member states, ensuring compliance with SADC decisions and rulings, providing legal advice to SADC organs and institutions, and promoting regional integration and cooperation.
The Tribunal's jurisdiction included: disputes between member states, disputes between member states and SADC institutions, cases referred by the SADC Summit or Council, and appeals from national courts on SADC-related matters.
The SADC Tribunal had real teeth - and, in so doing, SADC could bite.
However, in 2011, the SADC Summit decided to suspend the Tribunal's operations, and in 2014, it was formally dissolved due to an outcry by the repressive Zimbabwe regime.
This was after the court ruled that the forceful grabbing of land from white farmers was illegal and that all dispossessed farmers had to be compensated.
In the absence of the SADC Tribunal, members states, such as Zimbabwe, have willful violated the Treaty and various protocols - such as on human rights, democracy, and the rule of law as well as the holding of democratic elections - with impunity.
As much as there has been some talk by member states of the reintroduction of the SADC Tribunal, this will not be in the same format as the disbanded one.
The envisioned new SADC Tribunal will have practically zero teeth.
If established, its revised mandate will solely focus on the interpretation of SADC instruments, disputes between member states, and offer advisory opinions
The new SADC Tribunal will not have authority take any action against a deviant member state.
In other words, this new SADC Tribunal will merely be window-dressing and a façade that the organization now has teeth.
Nonetheless, facts are stubbing, and the truth is that SADC is a useless body and will always be useless as long as the original SADC Tribunal is not brought back.
What is the point in having an organization that can not even enforce its own rules?
Why bother formulating a treaty and protocols when members states are not compelled to follow them?
In fact, why are SADC heads of state and government currently meeting in Zimbabwe - and wasting taxpayers' money, especially in a country were half the population lives in extreme poverty - when what they agree on will not be enforceable?
The number one question, though, is: Is SADC still relevant?
Do the ordinary people of the region really need this organization?
The answer is a big NO.
© Tendai Ruben Mbofana is a social justice advocate and writer. Please feel free to WhatsApp or Call: +263715667700 | +263782283975, or email: mbofana.tendairuben73@gmail.com, or visit website: https://mbofanatendairuben.news.blog/
Source - Tendai Ruben Mbofana
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