At a regional level, the citizens or residents of countries within the Southern African Development Community (“SADC”) had a right to access to justice. In terms of the 2000 SADC Tribunal Protocol (“2000 Protocol”), citizens of any of the SADC countries could, if a domestic court failed to provide relief, refer a dispute between themselves and their government to the SADC Tribunal – a regional court. However, in 2010, during a SADC Summit this right was partly diminished when a moratorium was placed on the Tribunal hearing new cases, and the judges’ terms not renewed. At the time that the moratorium was placed, the SADC Tribunal had received 30 matters and finalised 24. Of all the matters received by the SADC Tribunal, all were instituted by individuals, and non by the Member States of SADC. In terms of Article 15 of the 2000 Protocol, the “Tribunal shall have jurisdiction over disputes between States, and between natural or legal persons and States.” As a mechanism to ensure respect of domestic legal process, and prevent the SADC Tribunal from over-stepping member states’ domestic legal processes, the 2000 Protocol provides that “[n]o person shall bring an action against a State unless he or she has exhausted all available remedies or is unable to proceed under the domestic jurisdiction.”

The locus standi of citizens in the SADC Tribunal has been abolished. This is because on 18 August 2014, in Victoria Falls, Zimbabwe, the SADC Summit, adopted a new Protocol on the SADC Tribunal (“2014 Protocol”). Unlike the 2000 Protocol, the 2014 Protocol provides in article 33 that, “[t]he Tribunal shall have jurisdiction on the interpretation of the SADC Treaty and Protocols relating to disputes between Member States”. The net-effect of this article is to eliminate citizens’ standing in the Tribunal all together. In light of the fact that traditional diplomatic channels to resolve inter-state concerns already exist between states, it has been argued that the regional Tribunal is likely to be a “white elephant”, as it is unlikely to receive any cases if it does not receive cases referred by individuals..

The Law Society of South Africa challenged in court the decision of the then President of South Africa, Mr Jacob Zuma, to negotiate and sign the 2014 Protocol on the grounds that it was unconstitutional, unlawful and irrational. The Constitutional Court of South Africa (“Court”) recently ruled on the matter. Penning for the majority, Mogoeng CJ, held that the President of South Africa is “an embodiment of supreme power”, vested with “extensive constitutional powers”, which powers are constrained. Constraints to the constitutional powers vested in the President include the fact that the President must in the exercise of his powers not infringe any provision of the Bill of Rights; must act in good faith; and must not misconstrue his powers. In the exercise of his powers, the President is also constrained by the doctrine of legality, which is an incident of the rule of law, and serves as a constitutional control through which the exercise of public power is regulated by the Constitution.

The Court held that the South African government did not sign and ratify the SADC Treaty as a “consequence or misfortune of the imperatives of geo-political location”, rather it was because the SADC Treaty and corollary thereto, the institutions and the agenda of SADC were in sync with South Africa’s progressive constitutional vision. The Court held that the SADC Tribunal is an institution of SADC and it is a requirement in terms of Article 35(1) of the SADC Treaty that the jurisdiction of the SADC Tribunal may only be amended by three-quarters of the SADC Member States. Thus, the Court held that using the protocol route to emasculate a SADC organ, viz. SADC Tribunal, was not a legally permissible route. Consequently, the Court held that the President of South Africa “acted unlawfully by following an impermissible or irregular procedure”.  The Court also held that the decision to negotiate and sign the 2014 Protocol which denuded and emasculated the jurisdiction of the SADC Tribunal to hear individual complaints against Member States was irrational because the amendment procedure prescribed in the SADC Treaty was not followed, but rather an amendment process which is unavailable to the Member States was utilised.

Ultimately, the Court ruled that access to justice is fundamental human right which is an integral part of the South African Constitution. Thus, the Court held that, “it is constitutionally impermissible,” for the President to align himself with and sign a “regressive international agreement that seeks to take away the citizens’ right of access to justice at SADC level.” Consequently, the Court held that the President acted unconstitutionally in negotiating and signing the 2014 Protocol which denuded the fundamental and treaty right of access to justice.

The judgment is testament to the fact that the right of access to justice is indispensable and vital to the full enjoyment of all human rights. Going forward, it is hoped that South Africa will heed the trajectory espoused by the country’s former president, Nelson Mandela who once remarked that, “South Africa’s future foreign relations will be based on our belief that human rights should be the core concern of international relations.” Henceforth, South Africa, as a constitutional democracy, must never sacrifice its human rights agenda and principles at the altar of diplomacy. Rather, as Mogoeng CJ observes, South Africa must “relate with other sister countries with an unshakeable purpose of contributing to the realisation of a more just, equal, peaceful, human rights-oriented, truly democratic order and shared prosperity.”

In light of the fact that ensuring access to justice is a critical component of States’ obligations under international human rights law, it is hoped that the sobering judgment by the Constitutional Court of South Africa will propel our SADC leaders to rethink their decision to emasculate the SADC Tribunal by stripping it of jurisdiction to hear individual complaints and denude SADC citizens of their right to access justice.  In the SADC Treaty, SADC leaders commit themselves to the protection, promotion of human rights, the fostering of a democratic order and the adherence to the rule of law. To ensure that these commitments are adhered to, the existence of a Tribunal clothed with powers to check the power, conduct and omissions committed by SADC states against citizens is non-negotiable.

The existence of a Tribunal with vast powers, such as those accorded to it in terms of the 2000 Protocol is ineluctable in a region which has had a tortuous path towards good governance, democracy, human rights and economic development.

Advocate Mohamed Shafie Ameermia is a Commissioner at the South African Human Rights Commission. Peacemore Mhodi is a Research Advisor at the South African Human Rights Commission