Current Status of the SADC Tribunal
Module 6: Litigating Digital Rights Cases in Africa
The SADC Tribunal was established in 2005 with the mandate of ensuring adherence to, and proper interpretation of the provisions of, the SADC Treaty and subsidiary instruments. However, following several rulings against the Zimbabwean government, the Tribunal was suspended in 2010. In 2014 a Protocol was adopted that sought to do away with the Tribunal’s power to adjudicate individual disputes against a State party.
The Law Society of South Africa challenged the decisions taken by the South African government to support the suspension, and the decision to sign the Protocol. In 2018 the South African Constitutional Court handed down judgment in Law Society of South Africa and Others v President of the Republic of South Africa and Others in which the actions of the President in participating in the decision-making process, and his decisions to suspend the operations of the SADC Tribunal were declared to be unconstitutional, unlawful, and irrational. The President was ordered to withdraw his signature from the 2014 SADC Protocol.
In 2019 the Tanzanian High Court in Tanganyika Law Society v Ministry of Foreign Affairs and International Cooperation of the Republic of Tanzania ruled that:
“The suspension of the operations of the SADC Tribunal; and failure or refusal to appoint Judges contrary to the clear Treaty provisions, was inimical to the Rule of law as a foundational principle inherent to the legitimacy of the Community; and as expressly entrenched in the Treaty. Respondents are enjoined pursuant to the respective Treaty obligations; to give effect to the Treaty.”
The Tanzania High Court similarly condemned the decision of the Tanzanian President in relation to the suspension of the SADC Tribunal.(1)
While other states in the region are not bound by these domestic decisions, they may nevertheless serve as pressure points for further litigation. However, at the time of writing, the SADC Tribunal remains defunct.