Solidarity triumphs over democracy - the dissolution of the SADC Tribunal

Abstract

In 2011, the heads of state of the countries comprising the Southern African Development Community (SADC) decided to dissolve the SADC Tribunal, a regional court modelled on the European Court of Justice. Four years earlier, the tribunal had ruled that the Zimbabwe government’s expropriations of land owned by white farmers violated the SADC Treaty principles on the rule of law and non-discrimination. The tribunal ordered the government to refrain from interfering with the farmers’ occupation and ownership of their properties. The government ignored the court’s decisions and embarked on a campaign to smash the tribunal and nullify its rulings. The SADC Summit was thus confronted with the choice of backing either the Zimbabwe government or the tribunal. By abandoning the court in favour of Harare, it elevated the norms of solidarity and regime protection above the democratic and legal principles espoused in the treaty. The head of the tribunal, Judge Ariranga Pillay, denounced the summit’s decision as ‘worthy of potentates and kings who can do no wrong and who are not accountable for their actions’ (Christie 2011a). This article first outlines the relevant provisions of the treaty and the protocol governing the tribunal and then discusses the scrapping of the regional court.