The Southern African Development Community (SADC) Tribunal is one of the organs of the SADC established under article 9 of the SADC Treaty. The composition, powers, functions, procedures and related matters of the Tribunal are found in the SADC Protocol signed on 7th August 2000 in Windhoek, Namibia. The Protocol is now an integral part of the SADC Treaty and therefore does not need separate ratification. The primary function of the Tribunal is to ensure adherence to and the proper interpretation of the SADC Treaty and its subsidiary instruments as well as adjudicating on disputes. The Seat of the Tribunal is Windhoek, however article 13 of the SADC Protocol permits the Tribunal to hold sittings in other locations within SADC other than its Seat. The Court is made up of five regular judges and five alternate judges, who may be called upon to sit if a regular judge is unavailable. The first judges were sworn in on 18th November 2005.
The SADC Tribunal has jurisdiction over all the disputes arising from the interpretation and application of the SADC Treaty, its Protocols and other subsidiary instruments. It also has jurisdiction over any matter connected with other treaties and agreements concluded by SADC members among themselves or within the framework of the Community and which confer jurisdiction on the Tribunal. The Tribunal does not have a specific human rights jurisdiction but certain provisions of the SADC Treaty allude to human rights which would fall under the purview of the Tribunal. In 26th April 2003, SADC member states signed the Charter of Fundamental Social Rights, which is yet to enter into force. Though there are arguments surrounding the justiciability of the provisions of the Charter and a specific reference to the Tribunal therein, there exist two possibilities for the Tribunal to exercise jurisdiction over the Charter. First, under article 3.2 of the Charter, member states ‘undertake to observe the basic rights referred to in this Charter’. Whereas the undertaking is legally-binding, the Charter does not expressly state which rights are ‘basic’ and which are ‘referred to in the Charter’. Second, the Tribunal could exercise jurisdiction over the Charter if it is considered as falling under ‘subsidiary instruments adopted within the framework of the Community’. These possibilities are yet to be tested judicially.
There is no definitive provision in the SADC Treaty or its Protocols on access to the Tribunal by natural and legal persons, besides state parties. However, it is argued that where a member state violates the provisions of the SADC Treaty or its Protocols which touch on human rights, it should be possible for natural and legal persons to approach the Tribunal. Again, these possibilities are yet to be tested judicially.
The judgments of the Tribunal are final, binding and enforceable. SADC member states are mandated to take all necessary steps to ensure the enforcement of judgments of the Tribunal. The judgments of the Tribunal are enforced in member states in the same way as foreign judgments are enforced. The Tribunal may also make interim orders.
For more on the SADC Tribunal go to: www.sadc.int/tribunal